Paul L. Caron

Wednesday, May 5, 2021

San Diego Provost Rejects Student Demand That Tenured Law Professor Be Fired Over Blog Post

Following up on my previous post, San Diego Law School Launches Investigation Of Tenured Professor's Blog Post; Student Petition Calls For Professor's Termination:

USD Law (2021)Gail F. Baker (Vice President and Provost, University of San Diego):

Dear USD Community:
We recently received complaints relating to a post by USD Law Professor Tom Smith on his personal blog concerning the causes of COVID-19. The complaints alleged violations of various university and School of Law policies.

As a threshold matter, we sought to determine whether the blog post at issue was protected by our policy on academic freedom. After a thorough legal review, it was determined that the expression was protected by that policy.

This conclusion in no way amounts to an endorsement by the university of the opinions shared in the blog post.

Academic freedom lies at the core of the mission of the University of San Diego. At the same time, we are committed to providing an educational environment that honors the dignity of every individual. Those two commitments can and must co-exist. It is important that members of the university community exercise their freedom in a responsible fashion, attentive to the impact of their protected opinions and sensitive to all members of the community, especially those who may feel vulnerable, marginalized or fearful that they are not welcomed. Members of the university community may feel an obligation, and certainly have the freedom, to criticize opinions that they believe demean the dignity of others.

As a contemporary Catholic university, we have a responsibility to promote a safe, just and inclusive environment within the university and in the larger society. We recently announced The Horizon Project, a comprehensive five-year plan to take concrete action to build a more inclusive campus community. As part of that project, the School of Law has announced specific initiatives to promote diversity, equity and inclusion within the law school community. This vital work is ongoing and will remain a focus for continuing and additional action by the university and the School of Law.

Tom Smith (San Diego), USD Discovers the Better Part of Valor:

Of course, I would prefer a statement from the University president and the Dean of the Law School retracting and apologizing for calling me a racist, and I will continue to demand that, but this is, my lawyer tells me, as close to unqualified victory as you ever see in this day and age.

I want to thank my intrepid attorney, Samantha Harris, and soon-to-be attorney, Sabrina Conza of FIRE, as well as the Academic Freedom Alliance and its directors Keith Whittington and Robbie George of Princeton University, who paid for my lawyer, as well as FIRE, and the many other academics, judges, lawyers, and yes, bloggers, who rallied to my support. I also want to thank the many old friends and students who wrote to me and to the university in my support. I especially want to thank my fearless colleagues at USD Law who wrote to the president and provost of the university as well as the dean of the law school and demanded that the investigation of me be stopped.

As people who follow the Right Coast will know, I feel keenly the horrible oppression of the Chinese, Uyghur and Tibetan peoples by the Chinese Communist party, and I fully intend to keep blogging about these too often forgotten peoples. I will also keep covering the origins of the coronavirus story and its possible connection to gain-of-function research in Wuhan.

Nobody should feel demeaned or marginalized by my criticism of the Chinese Communist Party, the People's Republic of China, and their many and documented crimes against humanity, or by my entirely reasonable skepticism about the CCP's hypotheses about the origins of the coronavirus, a skepticism, I might add, that is shared by the WHO, the US Department of State and many former US Government officials. Quite the contrary. The rights of everybody to be treated with dignity and respect are better served, in my humble opinion, by people standing up against bullies, whether they are a mob of students and administrators at a US university or the vast and mighty Chinese party-state. Standing up to the bullies at USD was nothing compared to what young people in Hong Kong, Catholic priests in Shanghai, Falun Gong followers, Tibetan monks, Uyghur teachers and translators, human rights lawyers in Beijing, and many, many others do on a daily basis. We should all take inspiration from them.

Brian Leiter (Chicago), U of San Diego Provost Finds That Statements by Professor Smith Are Protected by Academic Freedom:

Happily, the Provost reached the correct conclusion; it should not have taken so long. This is about as easy an academic freedom case as one can imagine.

Eugene Volokh (UCLA), Univ. of San Diego Provost Rejects Complaints Against Prof. Tom Smith Over His Criticism of China:

I would have much liked to see a stronger defense of academic freedom. Still, the result is correct.

William Jacobson (Cornell), U. San Diego Law Prof. Tom Smith Vindicated: Blog Criticizing Chinese Government Held Protected By Academic Freedom:

In an unexpected development, the Provost of the University of San Diego actually did the right thing, announced that Prof. Smith’s expression was protected by academic freedom, case closed. While there was verbiage about being sensitive to others, there was no institutional condemnation of Prof. Smith of the sort that so often accompanies administrative defenses of academic freedom. ...

Fire, University of San Diego Ends Investigation Into Professor Who Criticized Chinese Government:

Although we appreciate that USD eventually came to the correct conclusion, the university’s decision to leave Smith in the dark for months as it investigated what was clearly protected speech is impermissible and has almost certainly caused a chilling effect on the university’s students and faculty who wish to express their opinions. ...

Although USD’s investigation into Smith should never have begun, FIRE applauds USD for ending the investigation and coming to the correct conclusion: Faculty cannot be punished for protected expression just because some may be offended.

After AFA Intervention, Two Universities Decline to Sanction Professors Over Speech:

The Academic Freedom Alliance (AFA), founded in March by more than 200 faculty across the U.S., announced today the successful conclusion of two cases in which it intervened on behalf of professors facing threats of termination over constitutionally protected speech. Yesterday, the University of San Diego declined to take disciplinary action against Professor Tom Smith over his criticisms of China. ...

Professor Tom Smith of the University of San Diego (USD) faced an outcry from student groups after his March 10, 2021 blog post about the Chinese government’s handling of COVID-19. Professor Smith’s status at USD was placed “under review” while the university conducted an unwarranted, six-week internal investigation into his comments, which was a gross violation of his contractual rights as a tenured member of the law school faculty.

The AFA released a statement of solidarity with Professor Smith on March 22, and doubled down this week by providing funding for his legal defense. It also worked closely with experienced free speech attorney Samantha Harris in her representation of Professor Smith, and was proud to join with others in denouncing USD for its conduct in this matter.

“I am pleased that USD has concluded that my blog is protected by the First Amendment, although any law student who had taken first year Constitutional Law should have been able to tell them that,” said Professor Smith. “I was fortunate that the Academic Freedom Alliance had just been formed before I became the latest target of campus activists. The Academic Freedom Alliance does critical work in defending against administrators and students who forget that we live in a country that doesn’t just prize freedom of speech but protects it with the force of law.”

Jonathan Marks (Commentary), A Law School Grudgingly Acknowledges Academic Freedom:

[I]f 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? ...

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. ...

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.

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