WSJ Op-Ed: Why Colleges (And Law Schools) Don’t Care About Free Speech—And How To Make Them Care

Wall Street Journal op-ed:  Why Colleges Don’t Care About Free Speech, by John Hasnas (Georgetown):

Georgetown University’s law school violated its own speech policy last week when it placed Ilya Shapiro, a newly hired administrator, on leave over a tweet that offended some students. Why do universities make grandiloquent commitments to freedom of speech, then fail to honor them? It isn’t so much an issue of ideology as a problem of incentives. ...

Mr. Shapiro tweeted that the candidate he viewed as “objectively” most qualified for the Supreme Court “alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.” The dean of Georgetown Law, William Treanor, announced that Mr. Shapiro’s comment was “at odds with everything we stand for at Georgetown Law” and ordered “an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment."

Regardless of Mr. Treanor’s political views, he has every reason to do this. University administrators get no reward for upholding abstract principles. Their incentive is to quell on-campus outrage and bad press as quickly as possible. Success is widely praised, but there is no punishment for failing to uphold the university’s commitment to free speech.

The solution is to create an incentive for schools to protect open inquiry—the fear of lawsuits.

First, universities should add a “safe harbor” provision to their speech policies stating: “The university will summarily dismiss any allegation that an individual or group has violated a university policy if the allegation is based solely on the individual’s or group’s expression of religious, philosophical, literary, artistic, political, or scientific viewpoints.” This language would be contractually binding. Second, free-speech advocates should organize pro bono legal groups to sue schools that violate the safe-harbor provision. This would make it affordable for suppressed parties to bring suits over the violation of their contractual rights.

Prior TaxProf Blog coverage:

• Ilya Shapiro, On Heels Of Georgetown Law Hiring, Faces Uproar Over Tweeting That Biden's SCOTUS Pick Will Be A 'Lesser Black Woman' (Jan. 28, 2022)
• Georgetown BLSA Demands Incoming Professor's Job Offer Be Rescinded Over Tweet That Biden's SCOTUS Pick Will Be A 'Lesser Black Woman' (Jan. 31, 2021)
• NY Times: Georgetown Suspends Lecturer Who Criticized Biden's Vow To Put Black Woman On Supreme Court (Feb. 1, 2022)
• More Commentary On The Ilya Shapiro Controversy At Georgetown (Feb. 3, 2022)
• NY Times Columnists Agree: Georgetown Law School Should Not Punish Ilya Shapiro For His Tweets (Feb. 5, 2022)