The Atlantic ponders the tension between freedom of speech and inclusivity

June 14, 2022 • 12:45 pm

Conor Friedersdorf has a new piece in The Atlantic that tackles a question that vexes many:  what happens if a university or institution has a free-speech policy but at the same time guarantees an “inclusive and welcoming environment” for everyone?  Now we already know that these two policies will be incompatible in some cases, for some critical speech, say criticizing the tenets of Islam, the “colonialist” policies of Israel, or the principles of Black Lives Matter, will inevitably be perceived as “unwelcoming”—indeed, as “hate speech.” What happens then?

Such a policy used to be in effect at Georgetown University, and resulted in the resignation of legal scholar Ilya Shapiro, who made some hamhanded tweets about Biden’s new pick for Supreme Court justice Ketanji Brown Jackson, a black woman. These tweets were issued before Shapiro was appointed at Georgetown (which does profess a free-speech policy), so shouldn’t have caused him trouble, but I have to say that they were pretty dire. And yes, offensive.

This is the one that caused all the trouble (he’s since taken it down):

It’s not clear whether Shapiro meant by “lesser” whether black women are inherently poor choices, or that Srinivasan was simply a “greater” choice. Anyway, Shapiro rightfully was called out for it, and apologized:

This is free speech, particularly because the tweets preceded Shapiro’s demonization by Georgetown, which nevertheless launched an investigation of his conduct after he was hired. He was ultimately exculpated, but only on the grounds that he wasn’t a professor when he made the tweets. Still, the university made dark threats that things might be different if Shapiro tweeted like that again.  So he quit, announcing in The Wall Street Journal that he didn’t want to work in a hostile atmosphere. So that was the end of that; he now has a job at the Manhattan Institute, a right-wing think tank.

Well, it’s not quite the end, because in the a new piece in The Atlantic (click to read), Conors Friedersdorf analyzes two aspects of the case that remain.

A. What happens when free speech conflicts with “inclusivity”?  To me the answer is obvious, especially at a school like Georgetown that professes to adhere to free speech principles. Unless the speech is not protected by the First Amendment because of the exceptions carved out by the courts (harassment, production of imminent, predictable violence, defamation, etc.), speech takes priority over people’s offense. (This doesn’t necessarily hold in private universities or corporations, but in most cases it should.)

Further, such discipline isn’t really known to further inclusivity; that’s just an assumption. Any punishment then would be either a deterrent or a form of retribution, neither of which is justifiable. Friedersdorf says:

In recent years, diversity, equity, and inclusion administrators have proliferated across colleges as the “kindly inquisitors” of the “Great Awokening.” These officials are supposed to make sure that people from underrepresented groups feel included on campus. Yet in practice, DEI offices and the deans who supervise them have taken on a dubious enterprise: enforcing leftist speech norms most familiar to highly educated cultural elites. The unspoken assumption is that disciplining a scholar for, say, an offensive tweet will help young people from marginalized backgrounds. It’s an assumption that too many universities simply accept and too few feel any need to study or measure, let alone prove.

The conflict was addressed by Georgetown, but the resolution was ambiguous:

Georgetown Law Dean William M. Treanor declared in a statement that he was guided in the Shapiro matter “by two overarching principles.” The first was the law school’s “dedication to speech and expression,” while “the second and equally important principle was our dedication to building a culture of equity and inclusion.” When free speech and “building a culture of equity and inclusion” are on equal footing, the implication is that, when they conflict, free speech can sometimes lose. Treanor’s formulation leaves employees without any way of knowing exactly where the lines are. If even one ambiguously worded tweet can ostensibly surpass Georgetown’s threshold for harassment—or is deemed to violate professional-conduct policies against offensive or inclusionary speech—an employee risks being disciplined or fired over almost any statement that might offend others.

The ambiguity is deliberate, for it allows the University to do what it wants.

Fortunately, the Foundation for Individual Right and Expression (FIRE) have just announced that Georgetown has resolved the conflict, and—hallelujah!—has given precedence to speech over feelings. It’s done so by adopting a version of the University of Chicago’s Principles of Free Expression—making it the 87th college to do so. From FIRE:

Here is how the new policy statement begins:

The ideas of different members of the University community will often and naturally conflict. It is not the proper role of a University to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Deliberation or debate may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.

The statement continues:

It is for the individual members of the University community, not for the University as an institution, to judge the value of ideas, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting those arguments and ideas that they oppose.

If this language sounds familiar, it should. Georgetown is just the latest institution to adopt a policy that closely mirrors the Chicago Statement. Since its introduction in 2015, FIRE has touted the Chicago Statement as a model free speech policy for universities and colleges across the country.

Taking cues from the Chicago Statement, Georgetown’s new policy goes on to say:

Although members of the University community are free to criticize and contest the views expressed by other members of the community, or by individuals who are invited to campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of deliberation and debate, but also to protect that freedom when others attempt to restrict it.

So good for Georgetown, even though FIRE has still given it a “red light” for its speech-code policies since it still has rules in place that inhibit free expression.

Finally, and to Friedersdorf’s main point:

B. Who should formulate the rules for speech and behavior? As the subtitle says above, “overzealous administrators” often make the rules and punish faculty and students, while Friedersdorf says that the faculty should drive out the “overzealous administrators,” which include the DEI bureaucracy and all the other administrators involved in making arcane rules designed to create an atmosphere of in loco parentis. As we know, this group is growing far faster than the number of faculty or students. Friedersdorf’s recommendation, which is really only a small part of his story, is this:

Universities should operate according to scholars’ values, not bureaucrats’ subjective judgments. And my correspondence with Georgetown professors indicates both significant disagreement with administrators and a dearth of clarity about what speech—in practice—might get them investigated or punished.

To fix this problem at Georgetown and elsewhere, faculty need power to protect free speech. At present, sanctions in higher education flow in one direction: Diversity bureaucrats exert control over faculty members whose speech allegedly undermines inclusion. I propose giving faculty the power to investigate, sanction, and fire diversity officials if they undermine free speech. Administrative abuses will continue as long as bureaucrats can punish speech, even in flagrant violation of university policy, without any consequences.

This is pretty much the situation at the University of Chicago, but we still suffer from administrative bloat.  Now I don’t think we should do away with DEI administrators completely, for, after all, they have a job that’s vital for the university, and one that no professor would want to do. Diversity needs to be both promoted and protected. That said, I agree with Friedersdorf that the faculty and not the administration should make the rules relevant to education, which includes speech and diversity issues. The rest of the administration should be running the institution, making sure it functions physically and financially. While DEI can investigate cases, the rules by which they do this, or regulate speech, must be made by the faculty itself. After all, the purpose of the university is teaching and learning, a purpose summed up by the University of Chicago’s famously young President:

The object of the educational system, taken as a whole, is not to produce hands for industry or to teach the young how to make a living. It is to produce responsible citizens. — Robert Hutchins
These aims are best achieved by having the academic, speech, and behavior rules made by faculty, not administrators.  Why? Because, I think, the faculty ponders these issues more deeply than the administration, and have been trained in law, philosophy, and ethics, not “critical studies”. After all, Chicago’s foundational principles of the Kalven Report and the Chicago Principles of Free Expression, regarded as the gold standards for college speech regulation, were both concocted by faculty committees, not administrators.


h/t: Carl

16 thoughts on “The Atlantic ponders the tension between freedom of speech and inclusivity

  1. the issue is ‘inclusion’ is about including some and excluding others. eg a friend was on a search committee and there was enthusiasm to hire a gay latino candidate from others based on that identity. there were no minority gay faculty in the dept., so they saw it as a ‘two-for.’ my friend though is a religious catholic, and he knows for a fact there isn’t any other religious or conservative faculty (he’s a minority too fwiw). but those are not identities worthy of inclusion.

    1. This is indeed an example of a central problem. Conservatives often point out the various blind spots that exist among otherwise well-meaning leftie faculty. And they are right.

  2. Yet in practice, DEI offices and the deans who supervise them have taken on a dubious enterprise: enforcing leftist speech norms most familiar to highly educated cultural elites.

    And they have accomplices – the students who seem to feel it’s their moral duty to be offended as often and deeply as possible,

  3. “While DEI can investigate cases, the rules by which they do this, or regulate speech, must be made by the faculty itself.”

    This won’t help the problem if the faculty of a place are majority illiberal or woke left.

    1. Point taken, but ‘the faculty’ should include people from different academic units. One can expect few woke left from departments on business or even engineering.

      1. Your point is well taken too, Mark Sturtevant. You are right that departments such as those you mention are the last redoubts against wokeness. But such departments are in the minority; therefore, their representatives on the faculty committee can and will be outvoted.

  4. It’s not clear whether Shapiro meant by “lesser” whether black women are inherently poor choices, or that Srinivasan was simply a “greater” choice.

    I would regard it as clear enough that he meant the latter. We should all be allowed to make reasonable clarifications of what we say, and he indeed did make that clarification.

    1. Yes, he could (and should) have written “lesser candidate” and given up the comparison of minority to minority. It’s even a phrase with fewer characters (a bonus on Twitter.)

      1. Yes, you’re right, he should have. But it was in the context of Biden having announced that the nominee would be a black woman, so his phrasing is understandable.

      2. But as soon as you say, “he should have”, you are saying Shapiro did something wrong. If he had asked you for advice on composing his tweet, then fine, you could have pointed that out. And he might have said, “Thanks but No, I want to make the point that since Sri Srinivasan is not a black woman, then it’s Biden’s prior pledge to nominate one that makes Srinivasan ineligible. His choice isn’t merely inferior in my view. It’s also a knock on Biden and on where the philosophy of affirmative action leads to, but not on black female judges in general.” And a little snark about Srinivasan ticking some diversity boxes too, just not the right ones.

        Now if Shapiro’s over-riding goal was to avoid giving offence at the price of speaking his mind fully, he could have rephrased. But avoiding offence at all costs? That’s what most of us have to do all the time. That’s why we need Ilya Shapiro and people like him.

  5. Thank you for shining the UChicago light on this story, Jerry.

    I don’t find Ilya Shapiro’s tweet at all offensive, especially with the more charitable and logically straightforward interpretation you offer for the “lesser black woman” reference. While I certainly agree absolutely that the speech ought to have been protected, I find it disappointing that the freedom of speech machinery, with lawyers, needed to be galvanized to protect it in the first place. If he’d said Scotsmen under 5’9” should not serve on SCOTUS because mentally inferior, well, then I would have ben offended. Deeply. Even if he had proof.

    I also hesitate from afar to endorse the view that DEI administrators create anything useful, much less vital, in their zeal to protect and promote cosmetic diversity, much less speech conformity. Bringing it under control of faculty organizations and away from administration might increase the chances of it being snuffed out altogether. But a commissariat has been established who will resist defenestration.

  6. Shapiro is another example of someone who gained nothing by apologizing. Instead of deleting his tweet, he might have been better off explaining it, with no apologies.

  7. what happens if a university or institution has a free-speech policy but at the same time guarantees an “inclusive and welcoming environment” for everyone?

    It’s worth emphasizing that rejecting free speech in the interests of an “inclusive and welcoming environment for everyone” does not work since it’s not a “welcoming environment” if you feel you have to continually self-censor, never voice your opinions, and always walk on egg shells.

    Indeed, given woke purity spirals, an environment that rejects free speech in favour of “inclusion” is a hostile environment for everyone, including the woke (!), who can easily find themselves targetted for a minor mis-step.

    I’ll bet that Maoist China and East Germany did not feel like benign environments for anyone.

  8. I find that prioritising inclusivity over free speech reminds me of The Borg and their desire to ‘assimilate’ everyone.

  9. I did not feel that Shapiro’s tweet was offensive at the idea level, but I can certainly see how Ms. Kentanji Jackson could feel offended. No one wants to get caught in that sort of crossfire. And I can also sympathize with being offended on behalf of Ms. Jackson. If Shapiro called it “inartful” for that reason, the retraction seems like something a thoughtful person would do after fumbling the communication. More of a bottom line of what I believe went though Shapiro’s mind – he was calling Biden out as an idiot on telling the world what color skin the next Supreme Court judge would have.

  10. To begin with, it seems absurd to expect an inclusive and welcoming environment as an adult.
    Granted, I went to a military college, which is a bit different. But there was competition to get admitted in the first place. Then, the first two years are difficult, made so on purpose, so that by the third year, those left are the ones who want it the most and who are willing and able to put in the work to excel. The classroom and lab work for those in the last half of the program is designed with the assumption that all of the students will show up on time for every class prepared to do the work, and will all have good study habits and take the lessons seriously.
    Once you survive the program, you feel like you have earned something important that most people would be unable to.

    It reminds me of the world of classic car collection. We take cars to lots of shows, and there is an unbreakable hierarchy. The people who earn the respect of others are the ones who restore the cars themselves. Depending on the show, there can be a high percentage of very wealthy people who bring in cars that they have purchased in show condition, or paid others to restore. They quickly learn that they don’t really get to be in that particular club. Sure, you are rich, and the car looks great, but you did not do the work. Even if you had wanted to, you could not, because you lack the skills. But just like the military, a person’s background or ethnicity is irrelevant. The Mexican kid who built a low rider in his driveway gets the same respect as the guy with the 5000 square foot shop and 200k in tools, but who spends all his spare time out there, doing the work.

    Ok, those are both sort of tangents from the original subject, but they share common elements. When I hear demands for something to be made “inclusive and welcoming”, it always seems to convey a subtext of wanting the accomplishment without having to go through the difficulty of earning it like everyone else. Both of those examples are ones where ethnicity, religion, or wealth are irrelevant.

    Shapiro’s wording was poorly chosen, but I think his logic is correct. If you goal is to find the best candidate for a position. eliminating large groups of candidates for reasons other than aptitude, is going to make it less likely that your choice will be the most qualified. So, if you decide that you will only nominate a Black woman, and you choose from the pool of currently serving judges, you start by eliminating 97% of candidates before you even start looking at judgements, opinions, or briefs.

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