Blog

Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

2020
2019
2018
2017
2016
2015
2014
2013
2012
2011
2010
2009

Only One Professor at OregonLaw Willing to Defend the First Amendment

December 31st, 2016

I’ve written several times about a recent incident where the University of Oregon  punished Nancy Shurtz, a law professor who wore blackface at a private party. Her intent–to raise awareness about the lack of black doctors–was benign, if not misguided. In her only statement, Shurtz said the punishment amounted to “supremely public retaliation.” Now, for the first time, we see a public defense from one of her colleagues, Ofer Raban, who teaches Constitutional Law at UO. (We met and chatted briefly during my visit there in November).

In the Oregonian, Raban writes that the administration is concealing its own role in exacerbating this conflict, and may be acting in retaliation for Shurtz’s complaints about the dean.

First, Raban points out the obvious omission from the report–there was no malice or bad intent. It was a well-intentioned, albeit misguided effort, to raise questions about racial equality.

This is a deeply flawed report, and the university has made a legal and moral mistake in adopting it.  Most astonishingly, the report fails to address the issue that makes this case so legally fraught: namely, that the costume was worn to advocate for racial equality. While the report concedes that important fact, its legal analysis fails to take it into account. For all we know, the analysis would have been the same if the professor had donned the costume at a Ku Klux Klan rally. Moreover, the report not only concludes that a costume intended to advocate for racial equality constitutes racial discrimination, but also makes no attempt to justify this counterintuitive conclusion. Whatever one thinks of that question, the failure to address it is preposterous.

Second, Raban points out that the report doesn’t even mention the Oregon Constitution’s free speech provision, which provides more protections than the First Amendment to the U.S. Constitution.

As for the freedom of speech, the report recognizes that the professor’s expression regarded a matter of “public concern,” which the First Amendment guards with particular rigor. But it then concludes that the university’s interest in preventing disruption to its educational operations outweighs the professor’s rights of free speech and academic freedom.

In another bizarre omission, the report fails to mention or analyze the Oregon Constitution’s free speech provision, which Oregon courts ordinarily address even before the First Amendment since it provides greater free speech protections.

Raban alludes to the fact that the report was not so well-intentioned:

University leaders suspended the professor and commissioned the report from a Portland law firm, which worked under the “direction and guidance” of university lawyers.

Third, Raban gets to the crux of the matter: the administration played a critical role in fanning the flames on campus.

Why were university administrators so keen to adopt this flawed report? Perhaps because the administration itself was responsible for much of the resulting educational disruption, including student outrage, damage to the law school’s reputation and a toxic law school atmosphere.

After all, when the Halloween event first became known, administrators repeatedly failed to inform students of the actual intent behind the costume (of which they were fully aware), or of the professor’s record as a defender of minority rights. And when these facts surfaced, officials doubled down by claiming that her intent did not matter, a position now echoed in the report.

Fourth, Raban alludes to the “retaliation” Shurtz alluded to in her statement:

Why was the administration’s response so conducive to inflaming rather than calming emotions? Admittedly, some misguided administrators may actually have believed the professor’s intent in donning the costume simply didn’t matter.

But we should also note that the professor in question was one of seven law school professors who had complained to university officials about the managerial performance of the law school dean. Isn’t it often the case that the settling of personal scores underlie ideological purification campaigns?

His conclusion is worth repeating over and over again.

Whatever the reason for administrators’ responses, let’s not forget what’s at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom. This is a sad day for the freedom of speech and expression at the University of Oregon.

This editorial takes supreme courage. This is why tenure protections exist–not to allow professors to shirk on teaching and writing after 5 years. Kudos to Raban. Shame on his colleagues who stay quiet.

Presidential Maladministration: Insulation of Public Land through the Antiquities Act of 1906

December 31st, 2016

With January 20 drawing closer, we will continue to see exercises of presidential insulation–executive actions taken by the Obama Administration to make it harder for the Trump administration to undo his policies. At this point, we are past the point of no return for notice-and-comment rulemaking, or even the minimum 30-day effective date for publication in the Federal Register. Now, President Obama is limited to proclamations. On December 28, he made two such proclamations–establishing as national monuments Bears Ears in Utah, and Gold Butte in Nevada.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by section 320301 of title 54, United States Code, hereby proclaim the objects identified above that are situated upon lands and interests in lands owned or controlled by the Federal Government to be the Gold Butte National Monument (monument) and, for the purpose of protecting those objects, reserve as part thereof all lands and interests in lands owned or controlled by the Federal Government within the boundaries described on the accompanying map, which is attached to and forms a part of this proclamation. These reserved Federal lands and interests in lands encompass approximately 296,937 acres. The boundaries described on the accompanying map are confined to the smallest area compatible with the proper care and management of the objects to be protected.

All Federal lands and interests in lands within the boundaries of the monument are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, or other disposition under the public land laws, from location, entry,and patent under the mining laws, and from disposition under all laws relating to mineral and geothermal leasing.

And, in case you’re interested, no vehicles are allowed in the park.

Except for emergency or authorized administrative purposes, motorized vehicle use in the monument shall be permitted only on roads designated as open to such use as of the date of this proclamation, unless the Secretary decides to reroute roads for public safety purposes or to enhance protection of the objects identified above. Non-motorized mechanized vehicle use shall be permitted only on roads and trails, consistent with the care and management of the objects identified above.

This executive action did not come out of the blue. In 2013 and 2015, Senator Harry Reid introduced a bill to convert the Gold Butte into a national conservation area act. Those bills never made it out of committee, as Republicans blocked it. Reid lamented:

In 2013 and 2015, he proposed legislation to protect Gold Butte as a National Conservation Area. But the bills did not come to fruition.

On Thursday, Reid made it clear he blamed the Republican Party for the efforts’ failures.

“They have done everything they can to destroy our ability to work on public lands,” he said.

Who needs Congress when you have a President with a pen and phone. In August, Reid said he was “confident” that President Obama would act unilaterally before “the first of the year.” With three days to spare, Obama gave Reid his parting gift. This is yet another example of maladministration where President Obama discovered in the interstices of a century-old statute the power to do precisely what Congress declined to do.

The Antiquities Act of 1906 allows both the President and Congress to create “national monuments.” Section 2 provides:

That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected

The statute vests the President with discretion, though he is required to only preserve “the smallest area compatible with proper care and management of the objects to be protected.” This is a fairly rare case where Congress delegates its powers under the Property Clause  of Article IV. As a threshold matter, Prof. Donald Kochan (Chapman) suggests that this likely violates the non-delegation doctrine, as it lacks any intelligible principle, though enough presidents have acquiesced that it probably is beyond dispute.

There is a strong argument that Congress lacks the authority to delegate its power as broadly as some construe the Act.  The U.S. Constitution’s Property Clause commits to Congress the “power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  When the Antiquities Act is broadly construed, it lacks any discernible, intelligible principle that would constrain the Executive branch’s exercise of monument designation power.  Congress then abdicates its responsibility to manage federal lands.  That should make the broad interpretation unconstitutional, but courts to date have not taken such a stance in the few cases that have challenged monument designations.  Furthermore, each new Congress has largely acquiesced in the generous interpretation.

This delegation two questions for the incoming administration; (1) can President Trump simply modify the reservation, arguing that the area selected by President Obama was too large; and (2) can President Trump revoke the proclamation altogether.

In a 2000 report, the Congressional Research Service addressed these questions.

First, it concluded that the President can modify a monument proclamation.

Although few monuments have ever been abolished by Congress (as opposed to being folded into another conservation designation), and no monument has ever been terminated by a President,6 the question has arisen as to whether a President lawfully could modify a previously designated monument. At first glance, it would appear that this question should be answered in the affirmative since Presidents certainly have modified or revoked executive orders, and at times executive orders and proclamations have been used interchangeably to carry out land actions.7

The report cites a 1938 opinion from the Attorney General:

An attorney general’s opinion concluded that a President could validly modify a monument because the Antiquities Act directs that a monument “in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” 39. Op. Atty. Gen. 185 (1938)

The second question, whether the President can simply cancel the proclamation altogether, is far more complicated.

But some see the proclaiming of a national monument as a special category of action that may not simply be undone.

The same 1938 AG Opinion concluded that the proclamations cannot be revoked:

However, the Opinion also concluded that a President could not eliminate or terminate a monument established by previous Presidential action. The Opinion noted that there was no separate statutory authority for the President to revoke or terminate a monument, and therefore any authority that existed for this purpose must be implied by the other powers given the President in the Antiquities Act. The Opinion then reasoned that because the President had no inherent authority over lands, the President was acting only with authority delegated to him by Congress; a monument reservation was therefore equivalent to an act of Congress itself; and the President was without power to revoke or rescind a monument reservation.

The CRS traces the development of related laws since the Roosevelt administration, though notes the Antiquities Act of 1906 has not been touched. Here is its conclusion:

We have found no cases deciding the issue of the authority of a President to revoke a national monument. While in [Federal Land Policy and Management Act of 1976] FLPMA Congress expressly limited the authority of the Secretary of the Interior to revoke monument withdrawals and reservations, that language arguably does not affect the President’s authority under the 1906 Act, which FLPMA neither amended nor repealed. No President has ever revoked a previously established monument. That a President can modify a previous Presidentially-created monument seems clear. However, there is no language in the 1906 Act that expressly authorizes revocation; there is no instance of past practice in that regard, and there is an attorney general’s opinion concluding that the President lacks that authority.

This interpretation would allow the Trump Administration to scale back the size of the reservation. No doubt conservation groups would challenge this, but the statute vests the President with virtually unfettered delegation to determine the “smallest area compatible.” How small? Smaller than Marco’s hands?

At bottom, we have an exercise of presidential insulation–11th hour executive action taken by a lame duck president, preserving land Congress expressly refused to preserve, in a manner that his successor (likely) cannot undo. Unless the President finds a way to act, it is unlikely the Utah or Attorney General will prevail.

However, in the WSJ Todd Gaziano and John Yoo argue that the President can unravel the land grab:

The original purpose of the Antiquities Act was to protect archaeological sites and historic landmarks that “in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.” After studying the president’s legal authority, we conclude that he can rescind monument designations—despite the cursory but contrary view of Attorney General Homer Cummings in 1938. The history of presidential abuse led Congress in 1950 and 1980 to limit the act’s use in Wyoming and Alaska, respectively. While Congress could limit it further, the law’s text and original purposes strongly support a president’s ability to unilaterally correct his predecessors’ abuses.

In other words, none of Mr. Obama’s monument designations or drilling bans is permanent. The grant of power to a president implies the power to rescind it. In Myers v. United States (1926), the Supreme Court ruled that the president’s power to appoint officials, with the advice and consent of the Senate, includes the power to unilaterally remove them. In revoking an official’s commission that was issued after Senate confirmation, the president is negating a specific and official Senate act. Similarly, presidents have the constitutional authority to terminate a treaty, even though they need Senate advice and consent to make it.

Another prominent example of this principle is the executive’s power to issue regulations pursuant to statutory authority. When Congress grants discretionary authority to issue regulations, the courts have correctly held that it also confers the authority to substantially amend or repeal them. The rescission power need not be expressed in every statute; it is implied.

The hubris that has marked this administration knows no end. Declaring that its policies will last forever won’t make it so. But it should stiffen the spine of those who wish to see those policies reversed sooner rather than later.
As CRS noted in a 2016 report, to date, “no court challenges have succeeded in undoing a presidential designation.” If this insulation is to be undone, the decision lies with the President.

Out with the Old, in with the New

December 31st, 2016

Out: Take Care Clause. In: Emoluments Clause

Out: Prosecutorial Discretion. In: Separation of Powers.

Out: Informal Guidance. In: Petitions for Rulemaking.

Out: Thomas is dangerous about AuerIn: Thomas has a point about Auer.

Out: “Political Agreements” are not Treaties. In: Treaties Must Be Submitted for Ratification.

Out: Spending-clause analysis in NFIB is dangerous to Medicaid. In: Spending-clause analysis in NFIB essential for sanctuary cities.

Out: Endorsing Justice Stevens’s Amendment to overturn PrintzIn: State officials cannot be commandeered by federal immigration officials.

Out: Retire already Justice Ginsburg! In: Please Justice Kennedy, don’t retire.

Out: Texas suing Obama. In: California suing Trump.

Out: Government shutdowns are bad. In: Government shutdowns are essential.

Out: We need 9. In: Not that 9.

 

George Conway for Solicitor General?

December 30th, 2016

CNN and Bloomberg have reported that George T. Conway III (Kelly Anne’s husband) is on the shortlist for Solicitor General. Conway may be less familiar to close followers of the Court than other plausible names, as he is not a regular litigant before the Supreme Court. He argued one case, Morrison v. National Australia Bank (2010), which he won 8-0 (Sotomayor recused). That is one more case than Elena Kagan ever argued when confirmed as Solicitor General.

While at Yale Law School, Conway authored a note in the Yale Law Journal titled The Consolidation of Multistate Litigation in State Courts, (96 Yale L.J. 1099 (1987). The piece argues that Multi-District Litigation Panels (MDLs) should be able to remove cases from, and transfer cases to state court. Here is the introduction:

In recent years, multistate litigation1 has grown spectacularly in both cost and complexity. In particular, the expense of mass tort litigation, which commonly involves dozens of closely related lawsuits brought by citizens of many states, has reached staggering levels.2 The cost of litigating these claims often exceeds the sums that are ultimately paid to plaintiffs.3 Inefficiencies and costs associated with such multistate, multiparty litigation have inspired proposals for legislative and judicial reforms ranging from suggested changes in the substantive law4 to calls for more extensive use of joinder or consolidation devices.5
*1100 One product of reform that has proven particularly successful is the Judicial Panel on Multidistrict Litigation. Empowered by 28 U.S.C. § 1407 to transfer related civil actions filed in federal courts to a single district for consolidated proceedings,6 the Judicial Panel has used its authority both to conserve federal judicial resources and to reduce the danger of unfairly inconsistent adjudication in related multistate, multiparty cases. The ability of the Judicial Panel to foster efficiency and fairness in multistate, multiparty litigation remains limited, however, because the Panel currently lacks the power to remove cases from, and to transfer cases to, state courts. To remove this limitation, this Note proposes that Congress confer upon the Panel discretionary authority to direct litigation to and from state courts. The Note suggests factors that the Panel should consider before ordering consolidation in state courts, and argues that a necessary factor should be a likelihood that, after transfer, the substantive law of the transferee jurisdiction will govern much of the litigation. The Note concludes that a grant to the Panel of power over litigation in state courts would be constitutionally permissible.

The piece was cited in 1996 Judge Kozinski dissent that concerned MDL panels.

While the federal courts have treated Pfizer as dispositive, commentators have been far more skeptical. With remarkable unanimity, they have questioned whether, and under what circumstances, district judges to whom cases are entrusted for purposes of discovery may hold on to them for trial. . . . George T. Conway III, Note, The Consolidation of Multistate Litigation in State Courts, 96 Yale L.J. 1099, 1102–03 (1987) ( “[C]onsolidation for trial almost certainly defies both the letter of section 1407 and the intent of its drafters.” (footnotes omitted));

For what it’s worth, Justice Souter wrote an opinion unanimously reversing the Ninth Circuit.

Conway’s note was cited in 2016 in the most recent issues of Causes of Action 2d, Newberg on Class Actions, the Guide to Multistate Litigation, and the Annotated Manual for Complex Litigation, as well as a dozens of law review articles. After law school, he clerked for Judge Ralph K. Winter, who was appointed to the Second Circuit in 1981.

Following his clerkship, he joined Wachtell in 1988, made partner in 1994, and has been working there since.

Perhaps most attention will focus on his role in the Paula Jones case.

The Daily Beast had this report.

Things were moving fast for Jones, and it wasn’t always clear just who was in control of her case. In 1997, Jones was being represented by Gilbert Davis and Joseph Cammarata—two moderate Republicans who suggested that Jones accept a settlement offer of $700,000. For her part, Jones later said, “Oh, I instructed them many times to try and get the case settled…”
But there were other lawyers steering the ship from behind the scenes, a group of young conservatives who referred to themselves as Elves (as in the muscle and magic that runs Santa’s workshop). These elves included George Conway—husband to Kellyanne Conway, Trump’s third and current campaign manager who has defended Trump’s trotting out of Jones and the other women, telling Anderson Cooper, “I believe that voters should know who Hillary Clinton is.” George Conway wrote the Supreme Court brief that allowed Jones’s case to continue and leaked to Matt Drudge details of a sealed affidavit that would later be used to discredit Jones—one in which she described a “distinguishing characteristic” of the president’s penis, specifically a bend, a condition that doctors who examined Clinton disputed.

Mother Jones also explained his role in more detail:

Jones’ Supreme Court victory was due in part to the work of George Conway III, a Republican lawyer who is married to Trump’s campaign manager, Kellyanne Conway. When Jones’ case first became public in May 1994, Conway was a 30-something lawyer at the law firm Wachtell, Lipton, Rosen & Katz and a member of the Federalist Society, a conservative legal group. Conway penned an op-ed in the Los Angeles Times arguing that Clinton was relying on dubious legal arguments. “In a case involving his private conduct, a President should be treated like any private citizen,” he wrote. “The rule of law requires no more—and no less.”

The op-ed brought Conway to the attention of Jones’ lawyers, Gilbert Davis and Joseph Cammarata. (Cammarata now represents seven women accusing Bill Cosby of sexual assault and other charges.) Subsequently, Conway spent several years quietly working pro-bono with Jones’ legal team and a group of other conservative lawyers. This crew ultimately exposed Clinton’s affair with Monica Lewinsky and sparked impeachment proceedings against the president.

In 1996, the 8th Circuit Court of Appeals ruled that the case should move forward, saying that it could find no “case in which any public official ever has been granted any immunity from suit for his unofficial acts.” Clinton appealed the decision, asking the Supreme Court to delay the trial until after he left office. Conway wrote the Supreme Court brief for Jones. In a unanimous decision written by liberal Justice John Paul Stevens, the court agreed with Conway, and the Jones case proceeded. Clinton was subsequently forced to submit to hours of depositions in the case—a first for a sitting president. Jones ultimately settled with Clinton for $850,000.

As an aside, he may be the first Solicitor General short-lister ever portrayed on SNL. Flash back to this hilarious sketch where on her day off, Kelly Anne gets a kiss from her husband, serves her family waffles, and takes a bath.

Jake Tapper was not impressed.

Update: George and Kelly Anne used to contribute to an NRO Blog called “Reconcilable Differences: Two Conways, Two Takes.”

In hindsight, this post from January 2007 is almost too surreal to believe.

Students Taking Offense

December 30th, 2016

Yesterday I blogged about whether a an argument becomes more persuasive if the speaker discusses incidents that would personally offend him or her. I noted, mostly in passing, that “I almost never get offended,” even where perhaps some may expect I would. It’s true. (I still laugh out loud at Borat, for example). Though, I admit I am somewhat atypical, especially for a millennial. I fully recognize that many students (who each semester get younger and younger than me) have a different threshold. As a result, they may find offensive incidents I don’t.

There’s really nothing professors can do to dial back when students get offensive. Indeed, many professors heighten that sensitivity, but that is a story for another post. Here, I’d like to talk about what a university should do when a student complains about a professor’s conduct that he or she finds offensive. For this, I encourage you to read in its entirety Eugene Volokh’s latest post, titled “Silencing professor speech to prevent students from being offended — or from fearing discrimination by the professors.” This excerpt, I think, capture the essence of Eugene’s argument:

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 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.

If students are given a heckler’s veto, whereby they can get a professor fired because they find something he did–even off campus, with a pedagogical purpose–to be offensive, academic freedom is toast. Volokh adds:

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.

The correct response from a responsible university to this sort of moral outrage should be “Tough.” Eugene explains:

Professors are entitled to express their views, including controversial ones; indeed, they’re supposed to express such views, however controversial, as part of their scholarship and their public commentary. And that applies to condemnation of religions, economic classes and political belief systems, as well as debate on less heated topics. “[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” If you disagree with the professor, express that disagreement, the universities would say; but we won’t shut the professor up in order to prevent you from feeling offended or alienated. …  Yet, again, I take it that the university’s response to such complaints about professors who made anti-Trump-voter, anti-Catholicism, anti-capitalist or anti-American statements at parties or blog posts would still be some version of “tough.” “You need to be confident that our professors will judge you fairly,” the university would presumably say (however credibly). “And we can’t just shut up our professors on all these subjects; they’re supposed to express themselves on controversial topics. The university is all about learning from people who sharply disagree with you, even when those disagreements go to important parts of your identity.”

But at the University of Oregon, the faculty and administration indulged–indeed abetted–this heckler’s veto.

When confronted by annoyed students, the administration must make clear that the purpose of a university is to “foster[] debate and inquiry”–and that entails being offended at times. Eugene explains:

I think that, on balance, this university approach, with its traditional support for freedom of expression, is the better one, if universities are to be places for fostering debate and inquiry. But if 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.

Alas, far too many universities act as if their primary purpose is to promote “inclusion,” social justice, and other progressive values. I’ll flashback to a post I wrote in September about a debate I participated in at SMU on intellectual diversity.

Sixth, a student asked [during Q&A] why would schools hire professors out of the mainstream, in a way that could injure their “brand.” I was absolutely gobsmacked by her ignorance about the importance of the university to foster dissent and ideas outside the mainstream. But I really shouldn’t blame the student. I doubt this tenet of academic freedom was ever articulated to her. Rather, she was probably taught at every juncture to avoid saying or doing anything that would upset others–that includes writing and thinking about unorthodox ideas. The framing of her question, which danced around the issue, was even more ignorant. She suggested that hiring conservative professors would hurt the school’s “brand.” To the contrary, many donors are withholding their checks because of the hostile environment brewing on college campuses. But that doesn’t resolve the issue–universities should promote the pursuit of ideas, in spite of their unpopularity. After reflecting on the question, a few hours later (always too late) I came up with this response: Would you have hired a scholar in 1972 who wrote that the 14th Amendment protected a right of same-sex marriage. The year before, the Supreme Court dismissed Baker v. Nelson for “want of a substantial federal question.” At a time when homosexuality was considered a mental illness, it certainly could have hurt a school’s “brand” to hire such a scholar, writing material entirely out of the “mainstream.” Four decades later, that position is now the law of the land. I’ll be sure to use this example the next time I debate this topic.

If students are never told “Tough,” and that their school exists to challenge, and often offend them, how are they supposed to know any better? Usually during the first week of ConLaw, I issue something of a blanket trigger warning: “I will offend you at some point during this semester.” We discuss slavery, abortion, eugenics, internment, and a host of other difficult topics. “If you don’t wish to be offended,” I tell them, “switch to a different section.” So far no one has taken me up on the offer.

Consider a recent tussle at Drexel University. A professor tweeted that all he wanted for Christmas was a “white genocide.” He was making some sort of reference to white nationalists, who believe that interracial marriage results in the destruction of the white race. Whatever. Not the kind of argument I would make, but he had some sort of scholarly spark behind the snark. Unsurprisingly, lots of people were offended. At first, the University announced that it wanted to meet with the professor about his tweet.

Drexel became aware today of Associate Professor George Ciccariello-Maher’s inflammatory tweet, which was posted on his personal Twitter account on Dec. 24, 2016. While the University recognizes the right of its faculty to freely express their thoughts and opinions in public debate, Professor Ciccariello-Maher’s comments are utterly reprehensible, deeply disturbing, and do not in any way reflect the values of the University.

The University is taking this situation very seriously. We contacted Ciccariello-Maher today to arrange a meeting to discuss this matter in detail. 

Whether or not any punishment would be issued, a university statement singling out the faculty member for a meeting has the inescapable consequence of stigmatizing the speech, and chilling academic freedom.

After some reflection, the University issued a revised statement that (more or less) strikes the right tone:

The social media comments over winter break by George Ciccariello-Maher, Associate Professor of Politics and Global Studies at Drexel, have precipitated a heated public dialogue. The issue has caught the attention of national media and put Drexel in the spotlight. As University leaders, we understand that people have very different perspectives and opinions on such matters; it is our duty to ensure that all members of our community feel truly welcome and can participate in an inclusive learning environment. Instances such as this one both test and strengthen Drexel’s fundamental dedication to the principles of academic freedom and freedom of expression. …

The University strongly encourages the use of speech—not threats or violence—to counter speech with which one disagrees. In the coming months, we look forward to a constructive exchange of ideas and opinions on the subject of academic freedom and freedom of speech.

The answer to offensive speech is more speech. Far more productive than firing or punishing the tweeter is for students and teachers to discuss these topics (white genocide?) and decide whether there is any merit to the tweet, or if it was a dumb joke. That approach would “foster debate and inquiry.” Not censor speech.

Drexel, which is not a state institution, shows an awareness of the First Amendment that is utterly lacking at the University of Oregon, which is a public institution, bound by the First Amendment.