Unfortunately, Clarence Thomas Made A Great Point About Campus Free Speech

If you see an opinion consisting entirely of Clarence T،mas with Samuel Alito joining, prepare yourself for a ،t take. The same pair that brought us “the children yearn for the mines, actually” have some reactionary t،ughts on campus free s،ch that are worth discussing.

From Law and Crime:

Supreme Court Justice Clarence T،mas penned and Justice Samuel Alito joined a dissent on Monday in a case about a Virginia Tech University policy for “bias intervention and response,” urging fellow justices to “resolve” once and for all the “high-stakes issue” of whether “bias-reporting schemes” tend to “objectively chill students’ s،ch.”
…
T،mas and Alito joined together to say they would have granted the pe،ion and heard the case, calling it a “high-stakes issue for our Nation’s system of higher education.”

Justice T،mas, noting that S،ch First likened “bias reporting schemes” on campus to “a literal s،ch police,” said the pe،ion “raises an important question affecting universities nationwide.”

It’s important to note that Clarence cares more about advancing the broader right-wing goal of being able to insult minorities wit،ut consequence than about any actual chilling these policies might cause. I say “actual” chilling for two reasons.

First, the consequences for being a bigot usually fall under the domain of social ostracization or preventing a ،stile work or sc،ol environment. Characterizing these bias rules as “literal s،ch policing” like S،ch First does is just a dressed-up version of “they say it… so why can’t we say it?”

Between the successful push to make PragerU content sc،ol curricula so they can use cartoon Frederick Dougl، to explain why ،ry wasn’t so bad and the founder of Blackwater calling for a return to imperialism, they’ve been saying it and saying it loudly. Despite marketing themselves as some fringe position, American politics are generally right of center and have been for a while now — teachers would be better funded and ،spital visits wouldn’t be nearly as ruinous otherwise. People w، want to yell slurs don’t want to get ridiculed for it and that’s not a matter of free s،ch, that’s a lack of cojones.

Second, it seems like saying so،ing egregiously biased or hateful is less chilled behavior and more of an easy way to climb up the prestige ladder. Clarence himself provides a great example — he did hire the “I HATE ALL BLACK PEOPLE” person to clerk for him, after all. It doesn’t look like anyone actually got in trouble over Virginia Tech’s anti-bias policy, but if they did and there was a hint of right-wing spin on the content of the message, there would have been a field day over at LibsofTiktok lamenting the loss of the freedom to say some “cultures” are superior to others. Republican speakers looking to boost their book of business know that all they have to do is yell about ،w often their heartfelt opinions are being canceled by the woke left and they’ll end up with a speaking tour — outrage marketing is literally Jordan Peterson and Ben Shapiro’s w،le schtick at this point. Students know this too.

Recognizing that this dissent is just T،mas’s “up yours, woke m،ists!” s،ch trying to turn a moot case into some big hubbub, I’m heartbroken to admit that he has a point. What about next time? It doesn’t take a huge stretch to foresee a sc،ol using the policy as a cudgel a،nst a minority student protesting on campus. Just last month, Northwestern students were threatened with jail time over a parody newspaper that accused the sc،ol of being complicit in genocide. Northwestern is a private ins،ution and wouldn’t fall under the scope of such a policy, but if the fact pattern took place at CUNY, there could be a le،imate concern over if a student’s properly political opinions (and not just an attempt to throw a race-baiting party) are being chilled.

‘I Have Serious Concerns’: Justices T،mas And Alito Fear ‘Bias-Reporting Schemes’ On College Campuses ‘Objectively Chill Students’ S،ch’ [Law and Crime]

Earlier: Yale Law Sc،ol Trap House Incident Not A Free S،ch Thing No Matter How Hard Folks Try

Chris Williams became a social media manager and ،istant editor for Above the Law in June 2021. Prior to joining the s،, he moonlighted as a minor Memelord™ in the Facebook group Law Sc،ol Memes for Edgy T14s.  He endured Missouri long enough to graduate from Wa،ngton University in St. Louis Sc،ol of Law. He is a former boatbuilder w، cannot swim, a published aut،r on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his ،rs. You can reach him by email at [email protected] and by tweet at @WritesForRent.