Constructive Cancellation: An Interview With Ilya Shapiro
What explains Shapiro's abrupt about-face in deciding to leave Georgetown Law?
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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. His story has been covered extensively by everyone from the New York Times to Fox News, and I’ve also written about it for these pages, so I’ll provide only brief background.
Earlier this year, Shapiro was hired by Georgetown University Law Center (“Georgetown Law” or “GULC”) as a senior lecturer and executive director of its Center for the Constitution. Before he could start, a controversial tweet of his about President Joe Biden’s Supreme Court pick incited an uproar and calls for his firing. Dean William Treanor placed Shapiro on (paid) administrative leave, while Georgetown Law’s human-resources department and Office of Institutional Diversity, Equity, and Affirmative Action (“IDEAA”) conducted investigations into whether his tweeting violated GULC’s policies on antidiscrimination and professional conduct.
Last Thursday, June 2, Georgetown Law finally announced the results of its investigations. As Dean Treanor explained in a public statement, GULC concluded that because Shapiro was not yet an employee at the time of his incendiary tweet, he was not subject to the school’s antidiscrimination and professional-conduct policies, so he could start work. But both Dean Treanor’s statement and IDEAA’s report about its investigation harshly criticized Shapiro’s tweet—and pointedly declined to declare that he wasn’t being fired because his tweet constituted protected speech.
In a Wall Street Journal op-ed that appeared online on Thursday night, Shapiro touted his reinstatement, declaring that “my cancel-culture nightmare is over.” But on Monday, just four days later, Shapiro announced his resignation from GULC, also in an op-ed for the WSJ. He claimed that Georgetown Law administrators “created a hostile work environment” for him by making clear that the next time he “transgress[ed] progressive orthodoxy,” he would be fired. In other words, even if he wasn’t technically “canceled,” he was “constructively canceled.”
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: First of all, congrats on your new gig. You just announced that you’re joining the Manhattan Institute as senior fellow and director of constitutional studies, which strikes me as a much better fit for you than GULC. When do you start?
IS: I’ll be starting right after July 4th. [My wife] Kristin and I are taking a long-planned, two-week vacation to Sicily. It’s a celebration of my 45th birthday and our wedding anniversary [which happens to be today—happy anniversary!], as well as a “babymoon” of sorts, since we’re expecting twins. I’m hoping to return tanned, rested, and ready for what comes next.
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.1
DL: Let me cut to the chase. Why did you decide to resign from Georgetown Law almost immediately after announcing your retention? It all happened very abruptly. Can you walk me through your thought process?
IS: At around 1 p.m. on Thursday, I met with Dean Treanor, who told me I was getting reinstated. I had previously told the Wall Street Journal that I’d be meeting with Treanor, which is when I expected to learn my fate, and they told me they’d be interested in getting a piece from me about it. So after I met with Treanor, I finalized and submitted my first op-ed to the Journal, which went online on Thursday night.
Late that Thursday afternoon, maybe around 4:30 or so, the report from IDEAA on its investigation hit my inbox. But I was very busy that afternoon, between meeting with Treanor and dealing with edits to the WSJ piece, so I didn’t read it carefully until the following day. It was only after closely reading the IDEAA report on Friday that I got a full sense of the situation I’d be walking into.
DL: Ah, that makes sense. And your resignation letter is basically a point-by-point rebuttal of the IDEAA report, going into great detail in terms of what you found problematic in it. [See also this detailed analysis of the IDEAA report by Professor Eugene Volokh at the Volokh Conspiracy.]
In your resignation letter, you mentioned consulting with “counsel, family, and trusted advisers.” Can you tell us about whom you talked to?
IS: Two crucial advisors were [Georgetown Law professor] Randy Barnett, my boss at the Center, and my wife, a better lawyer than any of us. After reviewing the report carefully, we concluded that I’d be entering an untenable situation. I couldn’t properly do my job if I was going to be walking on eggshells the whole time, trying to avoid the inadvertent but inevitable causing of hurt feelings and offense. So I had to leave.
DL: You mentioned consulting with counsel. Who represented you?
IS: I was advised by Jesse Binnall. I have to thank him and FIRE [the Foundation for Individual Rights and Expression], which funded Jesse’s work through their Faculty Legal Defense Fund. As I told [FIRE president and CEO] Greg Lukianoff, they’re my new favorite organization. They were especially crucial in the early days of the controversy, providing public-relations support, crisis management, and strategic thinking. I hope to become one of their biggest fundraisers, and the recently announced expansion of their mission is very important.2
DL: When did you decide that you’d be leaving Georgetown?
IS: Over the weekend—sometime on Saturday.
DL: The Manhattan Institute opportunity seemed to come together very quickly after that. You announced your departure from Georgetown Law on Monday, and by Tuesday night, you announced your new job at the Institute. How did this all happen so fast? Some might wonder if this was some elaborate, pre-planned rollout of your Manhattan Institute gig—announce you’re staying at Georgetown, announce you’re leaving Georgetown, announce you’re going to the Manhattan Institute.
IS: Definitely not. None of this was planned, and I couldn’t predict any of the twists and turns over the past six months that got me to this point.
Last year, I wasn’t even looking to leave the Cato Institute, where I had been for almost 15 years. But back in October, I was talking to Randy [Barnett], telling him that maybe it might be time for a new opportunity, a new challenge. That conversation was the germ of our idea of my going to Georgetown, which set all of this into motion.
As for my going to the Manhattan Institute, I can’t give too many specifics, but I can say that I’ve known the organization for a long time, I have many longtime friends there, and I’ve worked with them professionally—for example, with Jim Copland on amicus briefs. When my scandal first broke, several of my friends at the Institute reached out to show support. In fact, I’ve been blessed throughout this entire ordeal to have friends and allies at many different organizations—some expected and some not, some who defended me publicly and some who supported me privately.
I kept in touch with my Manhattan Institute friends, among other folks, and the Institute was always going to be in the realm of possibilities in terms of where I might end up if Georgetown didn’t work out. Over the weekend, as I realized that I’d have to quit, I started talking to the Manhattan Institute, and we reached an agreement.
DL: And when did you notify Dean Treanor of your resignation?
IS: I notified him when I submitted my resignation letter on Monday morning, about 45 minutes to an hour before my second Wall Street Journal op-ed went up.
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.3
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!
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According to Shapiro, WilmerHale didn’t conduct the investigations, which were done by Georgetown Law’s HR department and IDEAA, but it advised the university throughout the process.
On Monday, FIRE made a major announcement: “Today, the Foundation for Individual Rights in Education becomes the Foundation for Individual Rights and Expression. America’s leading defender of free speech, due process, and academic freedom in higher education is expanding its free speech mission beyond campus. The $75 million expansion initiative will focus on three main areas of programming: litigation, public education, and research.”
As I noted on Twitter, this strikes me as great news, since there’s no shortage of work to be done in defense of free speech. Not surprisingly, FIRE is in hiring mode, with 14 jobs they’re looking to fill. (If you’re interested in opportunities at FIRE, see also the Institute for Free Speech, which is looking to hire senior attorneys as well as a First Amendment Fellow for the 2023-2024 term.)
E.g., Professor David Cole of Georgetown Law in a Washington Post op-ed, or Professor Carol Christine Fair of the Georgetown School of Foreign Service, in comments to the New York Times. Shapiro cited Professor Fair as an example of a Georgetown faculty member who tweeted inflammatory things from the left and was not investigated or punished.