David Lat (Original Jurisdiction), Constructive Cancellation: An Interview With Ilya Shapiro:
There’s a term in employment law called “constructive dismissal,” “constructive discharge,” or “constructive termination.” It happens “when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is, in effect, a termination.”
This concept came to mind as I followed the saga of Ilya Shapiro, the prominent libertarian legal scholar who just resigned from Georgetown Law. ...
I largely agree with Shapiro’s second WSJ op-ed and the commentary supporting his decision to part ways with GULC—e.g., a WSJ staff editorial, a National Review piece by Dan McLaughlin, and a Legal Insurrection post by William Jacobson. But just as I wondered why GULC took four months to decide it wouldn’t fire Shapiro based on a technicality, I wondered: why did Shapiro quit Georgetown Law just four days after celebrating his reinstatement in the pages of the Wall Street Journal?
Earlier today, I connected with Shapiro by phone to discuss this and other topics. Here’s a (lightly edited and condensed) write-up of our conversation. ...
DL: What did you make of this Georgetown Law “investigation” that dragged on for four months? As I wrote over the weekend, it seemed like a disingenuous attempt to wait until the angry students left campus before announcing that you wouldn’t be fired. The technicality they used to resolve your case was something that could have been figured out in four minutes, not four months.
IS: After a month or so, it became apparent that the “investigation” was a sham. This was a simple application of the law to the facts. The facts were not in dispute—my tweet was short—and the law, in terms of the relevant policies, was also short and clear. The issue of my not yet being an employee could have been determined by simply looking at a calendar. But instead, Georgetown paid WilmerHale tons of money to orchestrate this whole farce. ...
DL: Turning to the bigger picture, do you think we might be at a turning point—a positive turning point—when it comes to free speech? I noticed that you received support from several people who don’t agree with you on many things.
IS: Maybe we’re getting to that point in the broader culture, but in academia, I’m pessimistic. We’ve always had more people on the left than on the right in academia, and I’m not sure the ratio has changed much since I was in college or law school. But what’s happening now is different from what we’ve seen in decades past. We’re seeing a rigid ideology being put into place, subversions of free speech and due process, administrators kowtowing to activists, and illiberal trends that administrators are humoring and placating.
DL: Any final thoughts?
IS: One of the reasons we’re having this conversation is that I’m trying to use this moment, this opportunity and platform I’ve been given, to urge Georgetown specifically and academia more broadly to think about their policies and culture surrounding free speech.
I’ve been in a lot of media cycles through this whole process, from my initial tweet to my suspension to my being shouted down at UC Hastings, and the current one is by far my favorite media cycle. It’s good to finally be driving the narrative. I hope that my “lived experience,” so to speak, can in some measure advance the ball in exposing and perhaps even fixing the rot at the heart of academia.
DL: I share your hope. Thanks for speaking out about these issues and taking the time to chat, and congratulations on your new job!
Prior TaxProf Blog coverage:
- Christine Charnosky (Law.com), 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, Incoming Professor's Job Offer Should Be Rescinded Over Tweet That Biden's SCOTUS Pick Will Be A 'Lesser Black Woman' (Jan. 31, 2021)
- New York Times, Georgetown Suspends Lecturer Who Criticized Biden's Vow To Put Black Woman On Supreme Court (Feb. 1, 2022)
- Commentary, The Ilya Shapiro Controversy At Georgetown (Feb. 3, 2022)
- Michelle Goldberg & John McWhorter (New York Times), Georgetown Law School Should Not Punish Ilya Shapiro For His Tweets (Feb. 5, 2022)
- John Hasnas (Georgetown; Wall Street Journal), Why Colleges (And Law Schools) Don’t Care About Free Speech—And How To Make Them Care (Feb. 8, 2022)
- David Cole (Georgetown; New York Review), Paul Butler (Georgetown; Washington Post) & Warren Geary (Georgetown 1L; The Hoya), Georgetown Law Faculty And Students Debate Ilya Shapiro's Fate (Feb. 21, 2022)
- David Lat, Is Free Speech In American Law Schools A Lost Cause? (Mar. 18, 2022)
- Ilya Shapiro (Wall Street Journal), Mob Rule And Cancel Culture At Hastings Law School (Mar. 23, 2022)
- Aaron Sibarium (Common Sense with Bari Weiss), The Takeover of America's Legal System (Mar. 23, 2022)
- Richard Reinsch (Heritage Foundation), Are Law Schools Now Woke Factories? (Apr. 12, 2022)
- William M. Treanor (Dean, Georgetown), Georgetown Law School Reinstates Ilya Shapiro Following Four Month Investigation Into Justice Jackson Tweet (June 3, 2022)
- Letter From Ilya Shapiro to William Treanor (Dean, Georgetown), 'Dumb Tweets For Me, But Not For Thee' (June 7, 2022)
- Wall Stret Journal Editorial, The Georgetown Law School Purge (June 8, 2022)
- Jonathan Turley (George Washington) & Eugene Volokh (UCLA), More On Ilya Shapiro And Georgetown Law School (June 10, 2022)