Monday, April 5, 2021
Professor Nadine Strossen kindly gave permission me permission to share the letter she sent yesterday to Dean Robert Schapiro regarding the case we noted previously:
April 4, 2021
Dean Robert Schapiro
Warren Hall 200
University of San Diego School of Law
5998 Alcala Park
San Diego, CA 92110
Re: Prof. Tom Smith
Dear Dean Schapiro,
I have been following with concern the situation of USD Law School Professor Tom Smith, who has been unjustly accused by some students of racial bias for having expressed criticism of the government of the People’s Republic of China. Law students certainly should appreciate the distinction between criticizing specific government policies and expressing bias against people based on their racial/ethnic identities. However, from all the reports I have read, you did not explain this critical distinction to the students, but rather, endorsed the students’ misunderstanding. Perhaps these reports are inaccurate, and if so, I would be delighted to learn that you have in fact honored the academic freedom and free speech principles to which your fine law school has pledged adherence.
My sources of information include (in addition to multiple press accounts and commentaries that are critical of your actions) the detailed 3/22/21 letter that was sent to you by my colleagues in FIRE (Foundation for Individual Rights in Education, on whose National Advisory Board I serve) and the 3/22/21 Press Release of the Academic Freedom Alliance (of which I am a Founding Member). For example, AFA’s Press Release stated the following:
The dean of the law school released a letter to the school characterizing [Prof. Smith’s] blog post as a form of “bias” that had “an adverse impact on our community” and noting that “university policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.” The dean promised that “there will be a process to review whether university or law school policies have been violated.” A separate letter was sent to the faculty objecting to the use of “offensive language” and declaring that “there is no place for language that demeans a particular national group.” These letters make clear that the dean has already prejudged the proper outcome for any disciplinary process on charges of alleged harassment.
FIRE’s letter invited you to notify it of any additional or different facts – other than those its letter recited -- and to the best of my knowledge you haven’t done so. Hence, I must for now assume, sadly, that the recitation is correct.
The students who objected to Professor Smith’s blog post themselves acknowledged that Professor Smith wrote critically about the Chinese government, not the Chinese people; their claim is that criticism of the Chinese government might somehow encourage attacks on people of Chinese or Asian origin. This is a formula for forbidding criticism of any government policies, which is a central right – indeed, arguably even a core responsibility -- of all members of an academic community. Moreover, suppressing U.S.-based critics of the Chinese government, such as Prof. Smith, hardly benefits Chinese people, many of whom are jeopardizing their own safety by critiquing their government’s repressive, discriminatory policies; to the contrary.
When students put forth an untenable and baseless charge, it is surely the responsibility of academic leadership to educate the students as to their error, not to compound the error and to threaten the academic freedom of the academic community.
I urge you to do what the University of San Diego has so far conspicuously failed to do: to withdraw and retract the institutional statements concerning Professor Smith. These statements violate the academic freedom of not only Professor Smith but also all members of the academic community. The very students who voiced the misguided charges will themselves forfeit vital educational opportunities if they, their fellow students, and their faculty members are relegated to making only statements that cannot be wrongly misperceived as somehow conveying group-based bias. Their ability to function effectively as lawyers – including as lawyers who advocate for full and equal human rights – will also be severely undermined. Having spent decades in the leadership ranks of human rights organizations including the ACLU (of which I was the national President) and Human Rights Watch (on whose Executive Committee I have served), I can attest that our work would be literally impossible were we unable to critique government policies for fear that someone might mistake those critiques as bias attacks on the government’s citizenry (the very people the critiques are intended to assist).
Very truly yours,
John Marshall Harlan II Professor of Law, Emerita, New York Law School
Past National President, American Civil Liberties Union (1991-2008)