Law Schools

Law School Launches Investigation Into Professor's Shocking Blog Post

Students say it was 'racist, it was offensive,' and fuels the ongoing violence against Asian Americans and Pacific Islanders.

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(Photo by Megan Varner/Getty Images)

University of San Diego Law professor Thomas Smith is under investigation for comments made on his personal blog. Critics have framed the post as “corrosive” and one that “mirrors the same unfounded conspiracy theory peddling that has contributed to the nearly 4000 hate incidents reported against Asian Americans and Pacific Islanders in the United States over the last year.”

A lot of commentators on the right have their panties in a bunch bending over backwards to dismiss the investigation as attacking Smith’s right to be critical of the Chinese government, or that it’s part of the CCP’s “propaganda line.”

Well, let’s take a look at the content, shall we?

“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 cock swaddle.”

Hmmm… Not so much being critical of a government but promulgating conspiracy theories. Cool, cool.

After the outrage over the post rightly became public, Smith made this addendum to the original post:

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UPDATE: It appears that some people are interpreting my reference to ‘Chinese cock swaddle,’ as a reference to an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government.

No apology to those who were insulted. No recognition that this kind of rhetoric has fueled hatred towards AAPI folks in this country. Does it really matter what Smith “intended”? Spoiler alert: I also don’t care to delve into Donald Trump’s “intention” when he talked repeatedly about the “Kung Flu.”

As the USD Asian Pacific American Law Student Association chapter wrote in their letter to Professor Smith about his rhetoric:

Recent anti-Asian hate crimes and sentiments can be traced back to rhetoric and conspiracy theories blaming China for the COVID-19. As you know, Donald Trump and his administration frequently used terms like “Kung Flu” and “Chinese Virus.” While these terms do not, on their face, call for violence or extreme hatred, that has certainly been their impact. Normalizing such rhetoric has a direct link to the rise in racism against all Asian Americans based on the false perception that a racial group could be responsible for the pandemic. These violent crimes are a result of simple words.

Remember, we are in the midst of tremendous violence against Asian Americans and Pacific Islanders.

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According to the “Stop AAPI Hate” Report, there have been over 3,795 incidents reported over the last year. This report only covers incidents from March 19, 2020, to February 28, 2021. According to Dr. Russell Jung, a Professor of Asian American Studies at San Francisco State University, these numbers likely do not accurately indicate the true magnitude of incidents which are more likely than not severely underreported. “Surveys show that almost three out of five Asian Americans faced direct racism last year,” Dr. Jeung said. “The most concerted number is that seven percent of California experienced racism. That’s almost 400,000 people—a 1,000 cases a day—so it’s a pervasive issue.”

But instead of actually contemplating how his rhetoric may contribute to this hateful zeitgeist, Smith eschews responsibility, blaming the readers for “misunderstanding” his dog whistle. Students at USD Law have been clear they understand the game Smith’s playing:

“I think it ultimately revealed that he does not understand the hurt that he’s caused. It’s not what he’s explicitly saying in the post, but it’s the context,” said Rosa Namgoong, APALSA Vice President of Student Affairs.

And:

“It’s very hurtful rhetoric that was used. It is very divisive language,” said Ashley Thompson, USD APALSA event coordinator. “It was very hard to process and swallow what he said.”
….
“What he did was ultimately hurtful. And we ultimately want ownership and for him to learn and to do for him to do better,” said Thompson.

Students also say it’s important to look at the harm of Smith’s words, not just what he now says his intent was:

For Benjamin Cope, a first-year law student representative of the Asian and Pacific Islander student association, the impact of the words outweighs the intent.

“Maybe it wasn’t his intent, but he chose very, very specific, unique, colorful language,” Cope said. “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.”

And here’s the thing — this isn’t the first time students have raised concerns about Smith’s blog. As the student petition to have Smith fired notes:

Over the last several years, USD Law students have raised formal complaints with our law administration about offensive commentaries included on Professor Smith’s blog, which until last year was linked directly to the USD Law’s website on a webpage showcasing faculty scholarship and achievements. USD Law students have confronted Professor Smith about previous commentaries in class and in private meetings, but none of our previous efforts compelled a disciplinary response from our leadership that could have prevented the vulnerability and helplessness that so many in our law community have experienced this week

It goes on to note the only acceptable course of action is seeing Smith out at USD:

Professor Smith must either resign or have his contract with USD Law terminated. Any other response from the University and School of Law is shameful and performative, and protects neither the safety of our students nor the integrity of our institution.

The law school released a statement indicating an investigation will be made:

The University of San Diego School of Law is aware of the blog post of the faculty member.

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.

While APALSA’s calls to action are a lot more extensive than what the law school is willing to commit to right now:

      1. Immediate Investigation + Termination of Professor Thomas Smith (Joint request w/ SBA President and VP) 
      2. Monthly updates regarding the progress of the investigation being conducted against Professor Smith 
      3. Option for students to opt out from Professor Smith’s class, which consequently would require more availability of professors to teach the same subjects 
        1. A demand 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, not just for a couple of years like what happened with Professor Alexander
      4. Formal apology from Professor Smith 
      5. Hiring more diverse professors
        1. Having a committee of student reps from each affinity org to be part of the hiring/interviewing process
      6. A cohesive reporting system for students to access when there is offensive conduct by faculty or staff at USD 
      7. Students to be provided with a notice of prior offensive conduct when registering for a class that involves Professor Smith (& any other Professor who has been flagged for xenophobic, transphobic, racist, bigotry) 
      8. Offer a suggestion for Dean’s Diversity Task Force to include one representative from each affinity group to be present at meetings
        1. Alternatively, have the 2 student representatives in the Task Force have the duty of communicating with affinity group organization leadership and keeping them posted on updates.

But… this is the law school that still employs Larry Alexander, and previously fielded complaints about Smith’s blog (and he has tenure), so I wouldn’t get too excited about the potential consequences.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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