USD Law Professor Under Investigation For Column Criticizing Chinese Government

University of San Diego Law Professor Thomas Smith has been put under investigation for the use of an offensive term in a column criticizing the Chinese government and its role in the pandemic.  The column, written on the site The Right Coast discussed a Wall Street Journal article on China’s lack of real cooperation in the World Health Organization’s investigation into the origins of the coronavirus. In the column, Smith refers to accepting “a lot of Chinese c**k swaddle.” That led to a campaign to have Smith fired and a statement from Dean Robert Schapiro that not only announced a  formal investigation but appeared to denounce Smith.  The USD controversy is the latest attack on free speech and academic freedom. It shows the same combination of student cancelling campaigns and the enabling actions of school administrators.

Smith is a very accomplished intellectual with an impressive background in both academia and the bar. He writes in the areas of Jurisprudence and Legal Theory, Intellectual Property, Contracts, Bankruptcy, Law and Economics, Business and Corporate Law at USD. He is also someone who writes in the public forum as a blogger and columnist.

In his Right Coast column, Smith stated “If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese c**k swaddle.”  It is clear a reference not to the Chinese people but the Chinese government. Most people agree that the text of the column clearly shows that Smith was criticizing the regime. Nevertheless, Smith later added that clarification to his column in a post script: “UPDATE:  It appears that some people are interpreting my reference to “Chinese [c**k] swaddle,” as a reference to an ethnic group.  That is a misinterpretation.  To be clear, I was referring to the Chinese government.”

That was not sufficient, however.  After sending a letter demanding an apology, the school’s Asian Pacific American Law Student Association filed a formal complaint in conjunction with the Student Bar Association.  APALSA also sent a list of demands including the firing of Smith or guaranteeing “that Professor Smith never be allowed to teach 1L students since they do not have the option of picking and choosing their classes. We would want this to apply INDEFINITELY.”

When confronted with the fact that Smith was not intending to insult Chinese people generally, the students insisted that intent no longer matters in such controversies and Smith still needed to be fired.  First-year student Benjamin Cope is quoted as saying “Maybe it wasn’t his intent, but he chose very, very specific, unique, colorful language. I know everyone will have their opinion, but as someone who will and has been affected by people’s words like this, I feel comfortable saying it was racist, it was offensive.”

As Eugene Volokh correctly pointed out the California Labor Code protects “political activities” employees and the California Supreme Court ruled in Gay Law Students Ass’n v. Pac. Tel. & Tel. (1979) that “political activities” includes not just electioneering but also “espousal of … a cause.”

One would have hoped that the Dean would have stood firmly with free speech and noted that the reference was a criticism of the Chinese regime and not the Chinese people. Instead, Schapiro criticized Smith and ordered an investigation. He told the law school:

While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community. A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.

We have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.

We previously discussed how these investigations produce a chilling effect on speech when administrators show little support for free speech. I understand the need to consider any formal complaint. However, Schapiro seemed to pre-judge the allegations by referring to “these forms of bias” and adding that “it is especially concerning when the disparaging language comes from a member of our community.” As discussed in the recent Smith College controversy, such statements protect deans and presidents from any criticism at the cost of the accused — and more generally free speech values.

The statement led a few faculty to write to Schapiro in protest:

Dear Robert,

We have read your email to the law school community as well as your email to one of us. Here is our reaction.

The faculty member in question made a political comment in forceful language. He has the right and perhaps the obligation as a citizen and an academic to comment on matters of public concern such as the Chinese government’s handling of COVID, and to do so in evocative and forceful language. No fair, much less lawyerly way of reading what he wrote would conclude anything other than that “Chinese [c**k] swaddle” was referring to propaganda of the Chinese government and surely not denigrating people of Chinese origin or descent. The context makes this perfectly clear.

Blog posts by academics fall within the bounds of academic freedom as defined by the AAUP. Student concerns about discrimination should always be considered soberly. Yet, an academic institution committed to free inquiry cannot allow misplaced accusations of bigotry to become an all-purpose tool for silencing critical comment. To allow such accusations to undermine academic freedom ultimately ensures an environment of fear and suspicion for all members of the academic community, undermining rather than ensuring a welcoming and respectful discourse. Describing the disputed comments in this case as “offensive language in reference to people from China” of a piece with “hate crimes directed against the Asian and Pacific Islander (API) community [and] racist commentary” inevitably creates the impression that judgment has been rendered in advance and the outcome of the promised review has been predetermined.

We are concerned that treating these complaints the way you are doing validates student reactions and strained interpretations that are misguided, that reflect a lack of critical thinking, and that will chill faculty members’ teaching and scholarship. We sincerely hope it will be possible to work together to find a better way.

What is remarkable about that letter is not that it states unassailable truths about due process and free speech but that it was signed by only seven members of the faculty.

The controversy highlights an increasingly common position that intent no longer matters if the use of terms are considered offensive, even when used as the basis for termination. Recently, a New York Times editor was fired for the use of the “n word” even though it was agreed that he was using it in response to a question and not as an intended slur. Veteran reporter Donald McNeil Jr., was fired after the newspaper bowed again to a cancelling campaign.  does intent not matter, any utterance is potentially a one-strike offense. Times Executive Editor Dean Baquet and Managing Editor Joe Kahn declared in a memo that “We do not tolerate racist language regardless of intent.”

Similarly, we have discussed professors investigated for using the “n-word” in classes for purely pedagogical reasons. Recently, faculty have been targeted for using the term as an acronym or using the censored version of the term.  Not only does intent no longer matter, but neither do free speech or academic freedom.

What is most distressing about the USD controversy is the combination of a student-led anti-free speech campaign with a largely silent or passive faculty.  Many professors are intimidated by these campaigns and do not want to risk being labeled as insensitive or racist. Such a controversy can end any hope for publications or new academic positions. So most stay silent as a colleague is attacked for clearly protected speech.  That silence is reinforced by administrators like Schapiro who show little support for either free speech or academic freedom.

I have little doubt that Professor Smith will prevail in this controversy. If necessary, he can sue and prevail in court. However, free speech has already lost with the actions of Schapiro and silence of most of the faculty. These investigations and public statements create an obvious (and intended) chilling effect on speech. Few academics want to risk such public humiliation or attention. Even fewer will risk such positions when administrators show little inclination to defend academics who are targeted in this way.

 

41 thoughts on “USD Law Professor Under Investigation For Column Criticizing Chinese Government”

  1. We really need to get rid of these university indoctrination centers. They are not educating but instead accommodating crybabies.

  2. There is a song by The Vapors named Turning Japanese. Someone play that song at this dumb university.

  3. Words and their meaning(s) are under assault by the Cancel Culture being fostered by the Political Left (woke (sters)). Carpenters should be careful how they describe the angle of a roof, using pitch rather than the commonly called Sloop, Burger King should start to consider changing the name of if famous burger from Whooper to Big Burger or some other name as the Italian population may soon take offence. Ruben’s may become insulted having two slices of bread with meat between having the same name. The Japanese could become insulted having their nationality used derogatorily in describing a Spoiled Jewish woman. Cows may rampage when they hear (Udder) Utter nonsense being used. Finally Donkeys are already upset with the Democrats for being bigger ASSES.

  4. Strange, that the person quoted as claiming Professor Smith’s column was racist, was clearly not Chinese or Asian. As usual, those making the big stink are white, elitists who aren’t remotely affected, but love to wield undeserved power.

    Chinese operatives in the US are capitalizing on these incidences in an effort to draw both a near non-existent picture of white “supremacist” based anti-Asian racism and to deflect from the genocide, fratricide and totalitarian rule of the Chinese and other ethnic peoples within China.

  5. The most amazing thing about the love and tolerance crowd is that those who diagnose others with “bigotry” have zero tolerance for anyone who disagrees with their own opinions and relish destroying the lives of other people for the sport of doing so. And they see absolutely no irony in any of it.

    1. Yes and this whole cancel culture will soon, I hope, come back snd bite the cancellers in the A$$.

  6. Instead of blithely accepting the emotional demands of the students, the Dean should require the students debate the accused. Isn’t that a fundamental skill taught to law students?

  7. Where are the stories about Cointelpro-style “Employment Tampering” today in 2021 started during the 9/11 era?

    1. “How it happened: Transcript of the US-China opening remarks in Alaska”

      “China’s Yang: ‘Is that the way that you had hoped to conduct this dialogue?'”

      https://asia.nikkei.com/Politics/International-relations/US-China-tensions/How-it-happened-Transcript-of-the-US-China-opening-remarks-in-Alaska

      “On human rights, we hope that the United States will do better on human rights. China has made steady progress in human rights, and the fact is that there are many problems within the United States regarding human rights, which is admitted by the U.S. itself as well. The United States has also said that countries can’t rely on force in today’s world to resolve the challenges we face. And it is a failure to use various means to topple the so-called authoritarian states. And the challenges facing the United States in human rights are deep-seated. They did not just emerge over the past four years, such as Black Lives Matter. It did not come up only recently. So we do hope that for our two countries, it’s important that we manage our respective affairs well instead of deflecting the blame on somebody else in this world.”

      There are post-9/11 abuses that still haven’t come to light. Whistleblowers are punished; no one is talking.

  8. There is no anti – Asian wave, hate, targeting of Asians or otherwise. Its just a talking points narrative

    “When The Narrative Replaces The News

    How the media grotesquely distorted the Atlanta massacres”

    https://andrewsullivan.substack.com/p/when-the-narrative-replaces-the-news-9ea

    In summary:

    “Sullivan then took aim at The New York Times and The Washington Post for their nonstop coverage depicting the Atlanta shootings as an anti-Asian hate crime with over two dozen stories combined. He also called out several others including, New York Times Magazine reporter Nikole Hannah-Jones, author Ibram Kendi, “Daily Show” host Trevor Noah for similarly jumping to conclusions.

    “None of them mentioned that he killed two [W]hite people as well — a weird thing for a white supremacist to do — and injured a Latino. None pointed out that the connection between the spas was that the killer had visited them. None explained why, if he were associating Asian people with Covid19, he would nonetheless expose himself to the virus by having sex with them, or regard these spas as ‘safer’ than other ways to have quick sex,” the columnist said.

    “They didn’t because, in their worldview, they didn’t need to. What you see here is social justice ideology insisting, as [New York Times executive editor] Dean Baquet temporarily explained, that intent doesn’t matter. What matters is impact. The individual killer is in some ways irrelevant. His intentions are not material. He is merely a vehicle for the structural oppressive forces critical theorists believe in. And this ‘story’ is what the media elites decided to concentrate on: the thing that, so far as we know, didn’t happen.”

    Sullivan debunked the notion that “white supremacy” is driving the increased hate crimes towards Asian-Americans, pointing to 2020 statistics in New York City that showed 18 of the 20 reported hate crimes were committed by Black and Hispanic Americans. He also pointed out that while there’s been a spike in anti-Asian hate crimes, the rate is still far lower than it was back in the 90s, according to the Center for the Study of Hate and Extremism.

    “It seems to me that the media’s primary role in cases like these is providing some data and perspective on what’s actually happening, to allay irrational fear. Instead they contribute to the distortion by breathlessly hyping one incident without a single provable link to any go this — and scare the bejeezus out of people unnecessarily,” Sullivan wrote. “The media is supposed to subject easy, convenient rush-to-judgment narratives to ruthless empirical testing. Now, for purely ideological reasons, they are rushing to promote ready-made narratives, which actually point away from the empirical facts.”

    “To run sixteen separate pieces on anti-Asian white supremacist misogynist hate based on one possibly completely unrelated incident is not journalism. It’s fanning irrational fear in the cause of ideological indoctrination. And it appears to be where all elite media is headed,” he concluded.

    Fox News

  9. Another “White Supremacist” attacks Elderly Asian Man On New York City Subway!!

    (For full story and NYPD photo of alleged perpetrator go to: https://www.dailymail.co.uk/news/article-9386805/Man-68-latest-victim-anti-Asian-violence-NYC-subway-assault.html)

    UK Daily Mail:

    “A 68-year-old man Asian man has been violently assaulted on the New York City subway by an assailant shouting racial insults, in the latest shocking incident of anti-Asian hate.

    Narayange Bodhi, originally from Sri Lanka, was commuting to his job as a security guard at 2.40pm on Friday when the attacker viciously punched him on a 1 Train in Lower Manhattan, police and witnesses say.

    Suspect Marc Mathieu, 36, of the Bronx was arrested on Sunday and charged with assault after NYPD Transit cops recognized his image on a wanted poster. Mathieu has nine prior arrests, a police source told DailyMail.com.

    The assailant randomly attacked Bodhi while shouting ‘You Asian motherf***er!’ according to witness George Okrepkie, who aided the victim until police arrived.

    ‘I could not believe that somebody would attack a man of that age,’ Okrepkie told WNBC-TV. ‘Before I could even look he was standing on top of him.’ …”

    White Nationalists have been attacking Asians around New York City for months now. There was a March Against White Nationalism last month.

    antonio

      1. And there’s more from the story…

        NYPD said on Sunday that they did not yet have evidence that the attack was racially motivated.

        The NYPD Hate Crimes Task Force published a call for information about the attacker without calling the incident a hate crime.

        The alleged assailant had been described as a 6-foot-2 black male with a muscular build, aged around 30 and last seen distinctively dressed in a black fedora, pink hoodie, black leather motorcycle jacket, large chain necklace and light colored pants.

        Okerpkie tried to grab the attacker, but said the man escaped out the subway doors as the train came to a stop at the Franklin Street Station in Manhattan.

        The Good Samaritan took off his scarf and helped Bodhi use it to stop the bleeding until police arrived.

        Bodhi’s family told the NBC affiliate that he has no memory of the attack, and suffered bruising on his face.

        Wonder how many sh@@libs read the story with anticipation hoping that the perp really was a “White Supremacist”. Leftists do believe their own propaganda, don’t they? That is until they have to get their hands dirty by sending their kids to a minority dominated school or living in such a neighborhood.

        I feel absolutely no empathy for sh@@libs when their beloved pets turn around and bite them.

        antonio

  10. “After sending a letter demanding an apology, the school’s Asian Pacific American Law Student Association filed a formal complaint in conjunction with the Student Bar Association. APALSA also sent a list of demands including the firing of Smith or guaranteeing “that Professor Smith never be allowed to teach 1L students since they do not have the option of picking and choosing their classes. We would want this to apply INDEFINITELY.”
    ******************************************
    I wonder if they stomped their feet and held their breath as they wrote these demands. In my experience, student governments represented real students like BLM represents blacks – as in very few or not at all. I’d ignore these cretins and let’ em hangout in the student lounge grousing to one another about the lack of progress in their worker’s paradise. Academic “leaders” are so impressed with and intimidated by underdeveloped cerebral cortices. It makes you wonder about their own.

    1. I hope they mature a good deal more in about 10-15 years because otherwise this is what is likely to start appearing in real government. Egad.

      1. Oh no. there are funded by a different form of communist.. American university ones. They have internal budgets for varous student associations. Funded by the usual university racket sources: tuition but also, grants from the rich powerful interests who are plying an agenda.

  11. What manner of attorneys are law schools churning out today? Instead of teaching aspiring lawyers to address the merits of an opposing argument, law schools seem to be teaching their students how to do little more than throw hissy fits about language they don’t like. While I, myself, look forward to facing an opposing counsel who lacks the ability to do more than pout like a petulant toddler, it does not bode well for the profession.

  12. Misguided a lack of critical thinking. That’s the best that can be said of these so-called law students. One shudders to think what kind of ambulance chasers they will become, because that’s all they’ll be good for. But with someone like Shapiro setting the example, we can expect nothing more from the students. Yesterday Asian-Americans were victims; today they are oppressors. There is no social stability in America these days.

  13. Dear Dean Shapiro – Please grow a fre**ing backbone as leader of your law department and educate your potential law students as to the meaning of freedom of speech AND critical reading and thinking .

    The “accused” is clearly referencing the Chinese government in the post. That your students cannot understand this is troubling on a whole other level
    as they are exhibiting a lack of reading comprehension, which one must certainly have in the pursuit of a legal career.

    Furthermore the Chinese government has clearly indicted itself as a racist institution in its pursuit in the persecution and annihilation of the Uyghurs alone.

  14. Can’t criticize the CCP because they make sure Democrat leaders like Joe and the Biden family get their payoffs. Furthermore the most Woke crowd hates America and for some reason likes the CCP. Maybe they like the idea of concentration camps for people whose ideas fail to conform.

    That seems to be it, the Woke left wants total conformity and will use concentration camps to get it.

  15. And here in a nutshell, we have the difference between the right and the left.

    If we don’t like a person’s writings, we argue against them or we ignore them.

    The left seeks to cancel, destroy, or intimidate the writer.

    The difference is telling.

    1. @monumentcolorado

      DITTO! For the most part we see them as being naive and wrong; they see us absolute evil. And anything is fair and sometimes necessary when fighting evil.

      antonio

  16. Looks like some Chinese activists are learning how to use claims of racism to get attention. The media coverage following the Atlanta shootings has emboldened these activists. But still, academics should not be in the business of name calling.

  17. The Elite, Intellects, Higher Learning for the most part, MSM, Dem’s, Liberals all are critical of any one who is critical of China, associate the virus with Wuhan Lab and etc. The Woke crowd are a Mob with their Bots and Big Tech going after anyone that does not follow their Party Line.

    Free Speech is under assault.

    It is going to be very interesting when Trump launches his Social Media Network, it is suppose to be Big and Revolutionary and has some big backers and companies along with 76 to 100 million potential followers immediately, Big Tech, MSM and Dem’s are not going to like it

  18. The Chinese government is run by “chinks”. There. Put me on the itShay list Then I will withdraw my contributions to that law school.

    1. I have used the phrase “Clearly the president has a few chinks in his armor” on social media just to see what would happen. So far, no cancellation messages from the FB pajama boys.

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