We’re still waiting to see if Georgetown University Law Center, my disgraceful alma mater, will fire scholar Ilya Shapiro for expressing doubts that limiting the pool of Supreme Court nominees using factors that have absolutely nothing to do with judicial competence, experience or acumen is the best way to get the optimum Court. The statements condemning Shapiro by GULC’s Dean have been indefensible, consisting of woke virtue-signaling and speech-chilling posturing. It worked: none of the law school’s faculty have had the courage or integrity to oppose him, essentially abandoning their support for academic freedom.
This caused me to wonder in the Law Center would be similarly hostile to philosopher Stephen Kershnar of the State University of New York at Fredonia if he were instead a GULC faculty member. Kershnar, you might have read, gave a recent interview about “sexual taboos” on the philosophy podcast Brain in a Vat.The politically conservative Libs of TikTok posted a video about it and social media went metaphorically berserk. Kershnar expressed doubt that adults having sex with minors is necessarily wrong, and raised some hypotheticals and examples to make his point. Grandmothers in some cultures fellate baby boys to soothe colic, for example. Kershner also opined that the harm to children and teens who engage in sex with adults has not been established, and he made a terrible Rationalization #22 (“It’s not the worst thing”) argument that children participate in a number of activities besides sex that they don’t fully “understand” and which aren’t generally considered to be harmful. He also posed thought experiments, like…
“Imagine that an adult male wants to have sex with a 12-year-old girl. Imagine that she’s willing participant, It’s with a very standard, very widely held view that there’s something deeply wrong about this. And it’s wrong independent of it being criminalized. It’s not obvious to me that this is, in fact, wrong. I think this is a mistake. And I think that exploring why it’s a mistake will tell us not only things about adult child sex and statutory rape, but also about fundamental principles of morality.”
On the podcast he eventually says that “unwilling sex with underage individuals,” or “out-and-out rape,” is a “severe wrong and should be severely punished.” He also says that “if we’re in the area of legislation, rather than morality, here’s a rule of thumb: if you don’t know whether something has expected good or expected bad consequences, the thumb on the scale should go to liberty….If we don’t know whether willing sex with a 15-year-olds is going to have net good or bad consequences, it’s like, ‘Yeah, well, go ahead and ban it.’ The idea is that people trying to criminalize something bear the burden. And even having harsh opinions on this, before we condemn people for engaging in this, on the basis of probabilistic utilitarianism, we should know that it does pose a risk for those and only those willing participants. I don’t think we know that.”
This is thought-provoking commentary, at worst “Ick” rather than unethical. Peter Singer, the Princeton philosopher who infamously argued that newborns could be ethically killed using the same logic that supports abortion was no less offensive. Yet after a furor on campus and on social media, Fredonia announced that it was investigating the philosopher’s “reprehensible” comments, then told Kershner he was banned from campus due to “safety” concerns—you know, all those little children it has enrolled in college. Then the school announced that he’d been suspended until further notice. Kershnar’s teaching duties have been reassigned and he has been banned from contacting students.
His treatment is unambiguously a violation of the principle of academic freedom, and a particularly egregious one.
The Foundation for Individual Rights in Education was quick to make the point; in its letter to Fredonia, FIRE said that “Kershnar’s statements are protected by the First Amendment, which prohibits SUNY Fredonia from taking adverse action against faculty members for protected speech, however provocative or offensive it may be to others….Even if you accept Kershnar’s critics’ framing—that his statements could lead to erosion of laws criminalizing sexual abuse of minors—his views are still protected by the First Amendment.”
Writing on behalf of the Academic Freedom Alliance, Keith Whittington, William Nelson Cromwell Professor of Politics at Princeton University, also told Fredonia on behalf of the Academic Freedom Alliance that there’s nothing to investigate in Kershnar’s case:
“There is no doubt that questions of sexuality and sexual morality are important ones. Academia should be a place where such questions can be boldly and honestly investigated. If a scholar’s analysis is mistaken, then it should be rebutted or ignored. But the scholar should not be driven from campus for challenging widely held beliefs or for reaching the wrong or unpopular conclusions.”
Based on all this, would Dean Treanor have treated Kershnar as Fredonia has, or as he has handled the controversy regarding Shapiro? I very much doubt it. Progressives like Treanor and the mass of the Georgetown University leadership routinely exclude matters of race from their supposedly liberal ideals. Where matters of race are concerned, only lock-step conformity with the “systemic racism” narrative will do.