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Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, January 3, 2017

Volokh:  University Of Oregon's Punishment Of Tax Prof Nancy Shurtz May Signal The End Of Free Speech For All Professors At All Universities

Shurtz

Following up on last week's post, Volokh: Punishment Of Tax Prof Nancy Shurtz Means The End Of Free Speech At The University of Oregon: Washington Post (The Volokh Conspiracy): Silencing Professor Speech to Prevent Students From Being Offended — Or From Fearing Discrimination by the Professors, by Eugene Volokh (UCLA):

People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can’t be trusted to evaluate minority students fairly, 2) students will be afraid that they won’t be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn’t stand to be in the room with them) or even in the institution, and won’t learn as effectively. I’ve seen these arguments made often, most recently as to the University of Oregon controversy. ...

I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression — both casual and more formally academic — on university professors’ part, because they reach far beyond black makeup in Halloween costumes.

Imagine, for instance, a professor who says — at a party, in an op-ed, at a debate, in a scholarly article, or wherever — that she thinks that Catholicism is a foolish and evil religion, because it oppresses women and gays. ...

Or say a professor says that President-elect Donald Trump is a charlatan and a bigot and that Trump voters were therefore either fools or bigots themselves. Again, this could be in a conversation at a party where students may be present, or in an op-ed, or in a scholarly article. ...

Likewise, say a professor sharply condemns certain streams of Islam (e.g., Wahhabism), or for that matter just posts the Muhammad cartoons on his office door or when writing about them on his blog. ...

Or say a professor publicly identifies as a hard-line Marxist, who thinks that the capitalist class has blood on its hands from its oppression of the workers. The professor might have praised Marxist mass murderers, such as Stalin or Mao, and talked of the justifiability of violent revolution. Or he might have just been seen wearing a Che Guevara T-shirt. ...

And the list could go on: The same arguments could be made against professors who say that homosexuality is immoral, or even just publicly say that they believe in the teachings of a certain church, if those teachings condemn homosexuality. They could be made against professors who express doubt that gender identity should be defined by a person’s self-perception, as opposed to a person’s anatomical sex. They could be made against professors who argue that the military is a shameful career; many antidiscrimination policies (including at the University of Oregon) apply to discrimination based on veteran status as well as based on race, religion, sexual orientation and so on.

They could be made against professors who broadly condemn whites as racists or men as rapists (even if they only argue that this is just a strong tendency among those groups, and not a universal certainty). They could be made against professors who sharply condemn Israel and Israelis, or the Palestinian Authority and Palestinians.

Indeed, they could even be made against professors who make all these statements mildly and thoughtfully. Say, for instance, that a professor’s condemnation of, say, Catholicism — or evangelical Christianity or Mormonism or Islam or capitalism or Socialism or Trump or Clinton or gun rights supporters or abortion opponents — calmly and politely argues that those beliefs are evil, and that rank-and-file adherents of the religious or political belief system are morally responsible for the evil that the belief system produces. ...

[I]f professors like Shurtz are barred from the classroom for their speech, then all this speech will be threatened. To the extent that any would be protected, it would be protected only when those who are in power — some mix of university administrators, state legislators, faculty senates, student majorities, student activists and wealthy donors — happen to agree with the potentially offensive speech.

There would be no principle to which dissenting voices could appeal for protection. Once a professor’s public speech — or even speech in a relatively private setting, so long as some students are there or some students hear about it — is seen as sufficiently offensive to enough students, that would be seen as justification for suspending or firing the professor.

And the lack of this principle would be felt not just by Shurtz but also by those who talk about alleged white privilege, the evils of Catholicism, the folly or bigotry of Trump voters, the immorality of choosing the military as a profession, or the depravity of capitalists or Israelis — as well as those who post Muhammad cartoons, criticize homosexuality or transgender rights theories, or discuss possible biological differences between male and female cognition and temperament. Indeed, as groups see that claims of group-based offense can be tools to fire professors they dislike (or pressure those professors into silence), the result would be more and more such claims of offense: Behavior that gets rewarded gets repeated.

Again, maybe some may support all this, on the theory that any such controversial statements undermine classroom instruction (and perhaps even grading fairness), and that maximally effective classroom instruction on those topics and with those viewpoints that the university administration chooses should be our main goal. That is more or less the view in the military, for instance (to oversimplify somewhat), because the military understandably prizes effectiveness above self-expression or open debate (except insofar as debate is needed to better accomplish specifically military goals).

But if people do endorse this view, they should endorse it with their eyes open, realizing what a vast range of academic speech — left, right and otherwise — it would potentially affect.

Prior TaxProf Blog coverage:

http://taxprof.typepad.com/taxprof_blog/2017/01/volokhuniversity-of-punishment-of-tax-prof-nancy-shurtz-may-signal-the-end-of-free-speech-for-all-pr.html

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Comments

Well good,then. That means that there should be no impediment to state legislatures taking a direct interested in who is teaching in state schools and what they are teaching.

Posted by: Gilligan | Jan 4, 2017 4:10:40 AM

You have just read a perfect definition of political correctness.

Posted by: David | Jan 4, 2017 7:34:44 AM

Why should the Rights of Englishmen be afforded to or imposed on Germanics and Slavs? They are different.

Posted by: Big Bill | Jan 4, 2017 4:54:46 PM

Good use of examples because you can't convince the outrage brigade of the value of free speech unless you point out that if their rules were applied evenly, then being a marxist or bashing Christians would be grounds for firing.

Posted by: wodun | Jan 5, 2017 12:05:51 PM

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