The Washington PostDemocracy Dies in Darkness

Opinion Free speech can’t trump every other value on campus

Georgetown University's law school. (Bill O'Leary/The Washington Post)
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An earlier version of this op-ed incorrectly quoted a tweet from Ilya Shapiro about President Biden's potential Supreme Court nominees. The tweet stated that Biden would pick a "lesser black woman." This version has been corrected.

This piece has been updated.

Alicia Plerhoples is a professor at Georgetown University Law Center.

How does a school react when freedom of speech and matters of equity collide?

That’s exactly what happened in January when law scholar Ilya Shapiro, who was days from starting a leadership position at Georgetown University Law Center, tweeted that any of President Biden’s potential nominees to the Supreme Court would be a “lesser black woman.”

Now, we have an answer — but not a good one: After an administrative review, Georgetown Law last week ended Shapiro’s paid leave and again welcomed him to be executive director of its Center for the Constitution. In doing so, the law school trampled over values of equal educational opportunity. And for what? Shapiro resigned his post Monday morning, arguing in a letter and accompanying Wall Street Journal op-ed that the university abandoned free speech because it may sanction him the next time he “transgress[es] progressive orthodoxy.”

This is not the first time we have seen the sort of thinking that went on at Georgetown. On campuses and in other public squares across the country, free-speech rallying cries typically come at extraordinary costs to marginalized groups. Elevating freedom of speech while discounting every other value often means accepting the denigration of women, people of color and Indigenous people.

I have been on the Georgetown Law faculty for 10 years and am one of three vice presidents of the University Faculty Senate. After Shapiro posted his tweet, many faculty members, including me, called for the rescission of his employment contract. Shapiro had not yet begun working at the law school, and we felt he had already defied Georgetown’s “commitment to more fully embrace diversity, equity and inclusion.

Others came to Shapiro’s defense, citing Georgetown’s policy on speech and expression, which upholds the “untrammeled verbal and nonverbal expression of ideas.” These supporters were the expected conservatives and libertarians, but liberals, too; the lionization of free speech cuts across ideology.

Ultimately, the university found that Shapiro did not violate its policies of nondiscrimination and anti-harassment because he was not employed by the school at the time of his tweet and thus not subject to those policies. (It’s unclear how he could thus be protected by the university’s free speech policy, but I digress.)

So how should Georgetown uphold its commitment to equity while still valuing free speech? The line between nondiscrimination and freedom of speech is not always clear. But in some instances, statements cause enough institutional harm and personal pain that they make a person unfit for a job in educational leadership.

Shapiro would have headed a major program at Georgetown Law that conducts lectures and conferences on constitutional law, sponsors student fellows and serves as a clearinghouse for judicial clerkships. These are critical opportunities for law students. Retaining Shapiro in the role would have closed off the center’s offerings to our Black female students — and probably to many other women and students of color — who saw and understood his tweet to mean that Black people and women are of “lesser” intelligence and import.

These students would have not only suffered mental anguish as they internalized yet another authority figure belittling their capacities based solely on race and gender but also possible adverse career consequences should they have avoided Shapiro’s center, as might have any rational person who wished to avoid amplifying the discrimination they already face.

And for all the talk about Shapiro’s right to untrammeled speech, little was devoted to Black women’s right to the same. Shapiro’s tweet added to the stereotypes our Black female law students face daily. His characterization of Black women — and his presence — could easily have had a chilling effect on the speech of these students, who already have far too many complexities and challenges they must consider when they speak in law school.

Some point to the fact that Shapiro deleted his tweet and apologized as evidence that our Black female students would have suffered no educational loss at Georgetown because of his presence. After all, mind-sets are not fixed. With self-reflection, dedication and hard work, people can learn from their mistakes and correct the damage those mistakes did.

Of course, we should all be able to make mistakes, interrogate our own biases and work to do better. But is that happening in this instance? Shapiro’s post-reinstatement victory lap in the form of a Wall Street Journal op-ed last week perpetuating dangerous notions of victimhood indicated otherwise. His ultimate resignation proved it.

Teaching Georgetown Law students is a privilege. And all students deserve to walk into our lectures, our conferences and our classrooms knowing that they will be respected as individuals — not judged by their race or gender. For all free speech is worth, this is the most basic and essential value of higher education that Georgetown should uphold.