An Open Letter to Eduardo M. Peñalver, Dean of Cornell Law School

Editor's Note: Since the beginning of the "cancel" craze that has swept through higher education (we are tracking attempted professor cancelations here), the National Association of Scholars has been examining individual cases and writing private letters to college and university administrators to urge them either to defend unjustly accused faculty members or to reverse decisions that have violated the principles of academic freedom. In several cases, (Professors Hudlický, Lowery, and Porter) our letters have gone unanswered and the injustices we sought to correct have been left to fester. We are now taking the additional step of writing again to administrators at these institutions, but in this round, we are making copies of the letters public.

We are posting these letters individually rather than as a bundle because each case deserves to be weighed on its own merits and because the individual postings will lend themselves more easily to those who want to call out the malfeasance of the college authorities.

We do not urge readers who are unacquainted with the cases to rush forward with emails, letters, or posts. Rather, we ask readers to weigh the facts and check our accounts against other sources. If you then agree that a college or university has acted in bad faith or counter to the core principles of liberal inquiry, then we do indeed urge you to speak up.

Colleges and universities these days sometimes give short shrift to academic freedom because their administrators fear they too will be attacked if they do not heed the commands of the censorious activists. They fear for their reputations with this particular group of "stakeholders." We would like to remind them that a greater reputation is at stake: the reputation of their colleges and universities as bodies that protect and nurture free intellectual inquiry and responsible debate.

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23 July 2020

Eduardo M. Peñalver
Allan R. Tessler Dean and Professor of Law
Cornell Law School
Myron Taylor Hall
Ithaca, NY 14853-4901

Dear Dean Peñalver,

I write to express my concern about your treatment of William A. Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic. I wrote to you previously in a private letter on June 19, 2020. I did not receive a response to that letter and am now taking the additional step of releasing this as a public letter.

You have written an open letter that purports to defend Professor Jacobson’s academic freedom, but at the same time slanders Professor Jacobson by casting unsubstantiated, and unsubstantiable, aspersions on his character. Your condemnation not only damages Professor Jacobson’s reputation but also chills academic freedom. I call upon you to publish a new letter that vindicates Professor Jacobson’s character.

I write as President of the National Association of Scholars (NAS). NAS is a network of scholars and citizens united by our commitment to academic freedom, disinterested scholarship, and excellence in higher education. As part of our mission, we support intellectual freedom throughout America. We have more than thirty years of experience in advocating for the principles of intellectual freedom. (For further information, please see www.nas.org.)

Cornell Law School’s treatment of Professor Jacobson, as exemplified by your open letter of June 13,¹ is astonishing. Your letter states that, “recent blog posts of Professor William Jacobson, casting broad and categorical aspersions on the goals of those protesting for justice for Black Americans, do not reflect the values of Cornell Law School as I have articulated them. I found his recent posts to be both offensive and poorly reasoned.” You do not state what is offensive or poorly reasoned—and you mischaracterize Professor Jacobson’s arguments. As he has stated, “Of course, I did not criticize ‘those protesting for justice for Black Americans,’ I criticized the Black Lives Matters Movement and the rioting and looting and cultural purge.”²

Cornell Law School should, of course, regard criticism of the Black Lives Matters Movement, rioting, looting, and cultural purge as admirable and worthy of praise. Most of all, Cornell Law School’s fundamental values should be intellectual freedom and the rule of law—and Cornell Law School should not act in any way to inhibit either. Your slanderous mischaracterization of Professor Jacobson does.

Your statement that Professor Jacobson’s writings are “objectionable” sends the clear signal that Cornell Law School will not admit, hire, or continue to employ any individual who publicly expresses Professor Jacobson’s views and does not yet possess the contractual protections of tenure. You also send a clear signal that Cornell Law School will not fight hard to protect Professor Jacobson as the would-be purgers seek an excuse to evict him from the Law School.

Your invocation of the word “offensive” also gives credence to the grossly illiberal argument that “offense” should have any weight in academic life. The life of the mind depends on full, free, and frank discussion; any concession to “offense,” any but, vitiates and renders hollow your supposed “commitment to academic freedom.”

Your phrase that “we also value academic freedom, which prevents us from censoring the extramural writings of faculty members,” also gives a strong impression that you would censor Professor Jacobson if you could. Academic freedom cannot flourish, or even survive, if deans and presidents do not give it full-throated support, but only “defend” it as an unfortunate necessity or an encumbrance on their preferred approach.

I urge you to publish a new letter which retracts your criticisms of Professor Jacobson, vindicates his personal and professional reputation, and states that the Cornell Law School’s fundamental values are academic freedom, the rule of law, and the charitable tolerance of full and frank discussion of every view that is necessary both for the life of the mind on campus and the operation of a free republic. Cornell Law School will not benefit either in reputation or in substance if it becomes known as a place that is hostile to intellectual freedom, and especially not if that hostility is based on the desire to avoid offending politically motivated actors.

I write partly in the spirit of reminding you that your actions have caught the attention of academics far beyond your campus.

We do not seek, as the purgers do, to incite a throng of angry people demanding that someone resign or be fired. But we do hold college officials to the legitimate standards of their positions. The best way to do that is to ensure that there is a permanent, visible, and widely accessible record of their actions.

In short, the Jacobson affair will not be an incidental footnote to your career. It will be a defining moment, and you should weigh your actions with the expectation that what you do now will be a significant part of what you will be known for in years to come. Consider the reputation of President James A. Perkins, whose handling of Cornell’s crisis in 1969 has marked him out as among the weakest and irresponsible figures in the history of American higher education in the last century. He set a path that does not invite emulation.

Respectfully yours,

Peter Wood
President
National Association of Scholars