In March, University of San Diego School Law Professor Thomas Smith found himself under investigation for a “racist” blog post with students calling for his resignation. The investigation has now ended with the finding that Smith’s speech is “protected by [USD’s] policy on academic freedom.” After all, as provost Gail F. Baker says, that “lies at the core of the mission of the University of San Diego.”
Great. But if academic freedom lies at the core of the mission of the University of San Diego, how come no one in the administration knows what it is?
Consider the charge against Smith. In a blog post, which was not hosted on a law school website, Smith colorfully opined that the coronavirus originated in a Chinese lab. Forget the post’s content for a moment because the inquiry could almost have ended at “not hosted on a law school website.”
In academic freedom parlance, Smith was engaged in “extramural” speech. As the 1940 Statement of Principles on Academic Freedom and Tenure of the American Association of University Professors explains, “college and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline.”
And as the Foundation for Individual Rights in Education (FIRE) pointed out in a letter to USD Law School Dean Robert Schapiro, USD Law expressly adopts the 1940 Statement’s Guidance. The University of San Diego is a private, Catholic school. But if academic freedom were really at the core of its mission, it would not have launched a two-month-long investigation to determine the obvious: That Smith was engaged in protected speech according to USD’s own policy.
Both Eugene Volokh, a law professor at UCLA whose reporting on this matter has been superb, and FIRE’s Adam Goldstein argue that it is protected by California law.
But we can’t ignore the content of the post because academic freedom isn’t a Get Out of Jail Free Card. Extramural speech can “clearly [demonstrate] the faculty member’s unfitness for his or her position.” So, what was the offending comment that prompted this investigation?
Smith wrote: “If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese cock swaddle.”
According to the law school dean himself, that “Chinese” constituted “offensive language in reference to people from China,” even though, as Volokh observes, it is obvious that Smith refers to the Chinese government. Had Smith disparaged the Chinese people in a blog, his speech would likely still be protected, but that would at least be a tougher case. This one is easy, which is why it’s puzzling that it took USD’s crack legal team so long to come to a conclusion.
That’s not to say that either Smith or his blog post are beyond criticism. Law students who complained that Smith was propagating a “conspiracy theory” about the virus’s origins are wrong. Smith’s tone is a little obnoxious. But we don’t investigate professors for being obnoxious or even wrong in blogs. Full stop. And no, there is no exception for moments during which anti-Asian violence may be on the rise.
There remains Dean Schapiro’s suggestion that Smith’s post may have constituted “harassment” under a policy narrowly targeting “unlawful discrimination and harassment.” But what can one say? That the dean of a law school would make this groundless suggestion is stronger evidence of professional unfitness than any piece of evidence thrown at Smith.
Of course, the leaders of the USD School of Law will not be investigating their own failure to live up to the supposed core of the school’s mission.
Instead, USD’s statement on the end of the investigation invites readers to conclude that USD would have very much liked to punish Smith for his protected speech in deference to the university’s “responsibility to promote a safe, just and inclusive environment.” But not to worry: The “Horizon Project, a comprehensive five-year plan to take concrete action to build a more inclusive campus community,” is already in motion.
What’s one crank weighed against that 15-million-dollar “clarion call to solidarity?” The Horizon Project was not launched in reaction to Smith’s comments, but we are at least allowed to imagine a Smith-less future just over the horizon.
Prodded by FIRE, the new Academic Freedom Alliance, and, perhaps most reassuringly, at least some USD faculty, the university has finally ended its investigation. And that’s is good news. But the provost’s statement on the matter is a master class on how to concede as little ground to academic freedom as possible.