The first two sentences of Richard Fausset’s article in the New York Times leaves nothing to the imagination.

Preston Damsky is a law student at the University of Florida. He is also a white nationalist and antisemite.

Remember the old Checkov quote, “Don’t tell me the moon is shining; show me the glint of light on broken glass”? Fuggedaboutit. Fausset leaves nothing to chance, lest you not realize who’s the bad dude in the story before you find out why he’s the bad dude. Damsky took a seminar taught by “Trump-nominated” (and, unmentioned, former federal defender) federal judge, John Badalamenti, which concluded with a paper worth  65% of the grade.

In his capstone paper for the class, Mr. Damsky argued that the framers had intended for the phrase “We the People,” in the Constitution’s preamble, to refer exclusively to white people. From there, he argued for the removal of voting rights protections for nonwhites, and for the issuance of shoot-to-kill orders against “criminal infiltrators at the border.”

Turning over the country to “a nonwhite majority,” Mr. Damsky wrote, would constitute a “terrible crime.” White people, he warned, “cannot be expected to meekly swallow this demographic assault on their sovereignty.”

Pretty horrifying stuff, right? Except Judge Badalamenti gave Damsky the book award for the class. This gave rise to some . . . outrage. While the “book award” is a nice thing, it’s not nearly as big a deal as the article suggests. Hell, I even won one back in law school. As Howard Wasserman notes:

• To people unfamiliar with law school, the phrase “book award” sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition. One of my colleagues declines to give a book award in seminars or other non-anonymous classes. Although at FIU we have begun a program of having profs pick a “best” paper from each seminar, for the student to present at a school program the following semester. So we end up in the same place, whatever we call it.

The interim dean rationalized it as free speech and institutional neutrality, but after the initial kerfuffle, Damsky took to twitter to make his situation worse.

At the University of Florida, the story of the book award took a dramatic turn soon after Ms. McAlister defended the decision to honor Mr. Damsky with it. It was then, in February, that Mr. Damsky opened an account on X and began posting racist and antisemitic messages. After he wrote in late March that Jews must be “abolished by any means necessary,” the university suspended him, barred him from campus and stepped up police patrols around the law school. He is now challenging the punishment, which could result in his expulsion.

This might better explain the first two sentences of the article, as the content of Damsky’s capstone paper, per Josh Blackman, was not beyond the “Overton Window” of right wing legal academia.

First, from a technical perspective, the paper is very well done. The writing is easy to understand. The footnotes are expertly bluebooked. The sentences are bit too long for my taste, but many law professors like long sentences with many clauses. I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for these technical elements.

Second, the author also presents a fairly detailed analysis of modern originalist scholarship. He accurately describes the views of McGinnis and Rappaport, Randy Barnett, and Adrien Vermeule. The author brings in discussion of the Federalist Papers, records from the Constitutional Convention, and early congressional debates over slavery. Again, I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for the literature/background information section.

Third, I’ll turn to the substance. The basic argument is that under what the author describes as National Constitutionalism, the Constitution should be understood to protect the sovereignty of “the People.” And, following Verdugo-Urquidez and Heller, “the People” are Americans, and not aliens. But the author doesn’t stop there. Citing records from the early republic, he concludes that the founding generation sought to discourage immigration from non-White countries. He quotes Professors Gabriel Chin and Paul Finkelman who wrote, “whether or not they supported slavery, a majority of [the Founders] unambiguously conceived of the United States as a White country.” (I’m not sure anyone would disagree with this point.)

You don’t have to agree with, or even care to stomach, the argument, but as a law school exercise, it’s not out of bounds. Then again, just because a handful of very conservative prawfs have pushed the academic Overton Window to the right doesn’t make a position scholarly-ish. Prawf Eric Segall goes down this path.

So, it all comes together–even though the founding fathers would never have thought that free speech protections apply to a public university (the text refers only to “Congress”), and even if they did, they would have thought that after-the-fact punishments for speech were fully constitutional (just no prior restraints). The school’s Interim Dean defended the award and the student’s right to express his heinous views on free speech grounds. A sincere originalist (like the judge) should not find a basis for that conclusion in the Constitution. (The Interim Dean’s scholarship does not appear to be especially originalist, and she was a clerk for Justice Stevens, so it seems doubtful that she is a committed originalist.) In any event, even if the speech could not be punished or even should not be punished because of free speech principles, it most certainly did not and should not have to be awarded. The judge/instructor and the law school also have a right to free speech, which they could and should have exercised by refusing to effectively endorse the student’s outrageous views.

While Segall takes the position that free speech jurisprudence has been overly protective of speech “at the expense of other values,” such as “equality and democracy,” he does not go so far as to argue that Damsky should have been punished for his views. On the other hand, he shouldn’t have been rewarded with the book award, either.

But as Howard Wasserman concludes, reprehensible though one might find the views expressed, academic freedom remains paramount.

Good on UF Dean Merritt McAlister for not overruling Judge Badalamenti on the book award or the grade. (Eric Segall disagrees on this). Absent some showing of bias, mistake, or other impropriety, the administration cannot overrule a prof on a grade, including identifying the “best” grade for the class. Grading is core academic freedom, on which the professor’s expertise controls. And she is correct that a prof cannot “grade down a paper that is otherwise successful simply because he or she disagrees with the ideas the paper advances.”

As Judge Badalamenti hasn’t chimed in on this controversy, there is no way to know whether his giving Damsky the book award was a reflection of his approval of the content or just routine grading of a paper, even if the ideas it expresses are anathema. And contrary to Fausset’s opening line, whether or not Damsky is “a white nationalist and antisemite” has little bearing on whether he wrote an academically decent paper.