FIRE Cases Figure Strongly in 'Chronicle of Higher Education' Article on Retaliation Against Faculty Speech
August 3, 2011
The Chronicle of Higher Education's Peter Schmidt has an excellent article on the hair-trigger sensibilities of the college classroom, in which many professors have found themselves under fire for remarks seen as violent or threatening. Perhaps not surprisingly, given the free speech and academic freedom issues involved, several of the cases Schmidt cites in his piece are cases in which FIRE has been—or is currently—involved.
Two of the cases Schmidt devotes significant coverage to in his article are cases with which FIRE has been intimately involved in recent months. The first, involving law professor Lawrence Connell of Widener University, concerns Widener University School of Law Dean Linda Ammons' trumped-up charges in attempts to fire him—including Widener's alleged inducement of two students to file complaints against him—after, among other things, Connell used Ammons as a character in hypothetical discussions of homicide in his class. Ammons placed Connell on administrative leave and asked campus security to give her special protections, so fearful she allegedly was for her safety.
Despite Ammons' alarmist reaction to Connell's class exercises (if it was not just a pretext to go after him for his political opinions), the use of such hypothetical examples is common in law school classrooms. As Schmidt reports:
In separate affidavits submitted in the disciplinary proceedings against Mr. Connell, law professors at other schools have defended his teaching methods as he describes them. Orrin S. Kerr, a professor of law at George Washington University, said professors teaching criminal law often present hypothetical situations using their schools' faculty members and administrators as perpetrators and victims. Mr. Kerr said such absurd hypotheticals add levity to classes and train law students "to focus on the legal questions quite apart from the identity of the individuals involved."
As FIRE reported recently, Widener cleared Connell of the university's incredibly weak charges of "harassment" and "discrimination." Shockingly, though, it found him responsible on charges of "retaliation," based in large part on attempts by Connell and his attorney to publicly defend Connell and bring attention to Widener's disregard for his rights. As Adam wrote:
All of this prosecution for what from the very beginning looked like completely trumped-up charges is pretty despicable. The behavior of Widener and Ammons should be embarrassing to the faculty, students, administration, and trustees. The apparently bad-faith charges against Connell were found to be without merit. Yet, Connell was required to keep his prosecution so secret that he couldn't even tell his students why he was kicked out of class, and his attorney couldn't even try to protect his client's reputation. When he did, Widener tacked on new charges, and Connell is now facing discipline for them, despite the fact that he was completely innocent of the original charges. When a professor can get in trouble for defending himself against false accusations, you know something is profoundly wrong at his university.
Schmidt writes, "It is now up to Ms. Ammons to decide whether to terminate him through additional judicial proceedings or discipline him in some other way."
Connell is currently suing Ammons for defamation and has moved to add Widener University and the two students as additional defendants.
The other prominent example in Schmidt's piece is another recent FIRE case, that of American Sign Language Instructor Peter Quint at the University of Oregon. Quint was suspended without due process, and soon thereafter told he would not be reappointed, on the basis of a single classroom comment:
In May, Mr. Quint caught students speaking aloud after he told of how his ability to communicate respectfully in a foreign environment had helped him escape potential harm from armed Pashtun tribesmen while traveling in Pakistan. According to an account he provided to FIRE, he asked the students: "Do you want me to take a gun out and shoot you in the head so you understand what I am talking about? I had to practice being respectful in Pakistan, otherwise I would have been shot. Can you practice the same respect here?"
UO's disregard for Quint's rights brought international attention to his former employer, and Quint has alerted UO that he is preparing to sue UO over his firing.
Schmidt also highlights FIRE's case involving Gloria Gadsden at East Stroudsburg University (ESU), who was temporarily suspended on the basis of comments made about unnamed students on her Facebook page:
Gloria Y. Gadsden, an associate professor of sociology, returned to work at East Stroudsburg University last fall after a psychologist said she posed no threat. She had been placed on administrative leave after a student complained about two comments she had made on her Facebook page: "Had a good day today, didn't want to kill even one student.:-) Now Friday was a different story ..." and "Does anyone know where I can find a very discrete [sic] hitman, it's been that kind of day."
Gadsden was suspended for more than a month for her supposedly threatening remarks, and ESU made her undergo a "fitness for duty evaluation." Gadsden was—unsurprisingly—cleared to return to work unconditionally. As we pointed out at the time, ESU's response to Gadsden's comments belied any belief that it actually considered her a real threat to safety; if it had, ESU's dithering could only have been characterized as gross incompetence in the face of a real danger.
In all of these cases, the universities utterly failed to show that the expression of their faculty members constituted a "true threat," which the Supreme Court defined in Virginia v. Black (2003) as only consisting of "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Universities have been burned badly before for jumping the gun in labeling their own as dangers to the university community. Schmidt highlights a sterling example of this in the now famous case against former Valdosta State University President Ronald Zaccari, who was stripped of his qualified immunity for his grave violations of the due process rights of Hayden Barnes, whom Zaccari had summarily expelled and labeled a "clear and present danger." Barnes had criticized his administration via a satirical collage. (The case is now before the U.S. Court of Appeals for the Eleventh Circuit on appeal.)
FIRE has written over and over about how the exploitation of emotions about any possibility of "violence" in the community has the effect of being a pox on free speech in the academy, yet another tool of infantilization of members of the college community by administrators in order to squelch free speech. I wrote way back in 2008 (somewhat eloquently, I like to think) how Colorado College disgraced itself in just such a way by punishing the creators of the satirical "Monthly Bag" flyer. Then there's the example of Arkansas Tech's hogwash cancellation of a student production of the Stephen Sondheim musical Assassins "out of respect for the families of those victims of the tragedies at Northern Illinois University and Virginia Tech, and from an abundance of caution."
Schmidt's article, in addition to giving an excellent rundown of recent incidents involving faculty (he also alludes to cases involving a graduate teaching assistant at University of California, Davis, and a professor at University of Wisconsin - Whitewater), conveys the worrying sense of how the terrain has shifted in recent years. Ominously, W. Scott Lewis of the National Council for Higher Education Risk Management (NCHERM) tells Schmidt, "We are far more likely to investigate-and at times take actions on-statements or behaviors that 10 years ago would have been dismissed as flippant or sarcastic." Representatives of other risk management organizations offer their insights as well in the article.
Fortunately, Schmidt gives the last word to FIRE's Adam Kissel, who uses it to return to first principles. Of the impulse to catalog and police every stray remark hinting at some possible ill, Adam says, "Putting innocent outbursts into a campus database is a chilling way to police discourse on campus."I hope many will read Schmidt's highly worthwhile and informed article.