Professor’s Complaint of Discrimination on the Basis of His Conservative Political Beliefs May Proceed to Trial
November 4, 2008
Last Friday, a federal district court in New York ruled that political science professor Michael Filozof may proceed to trial with his claim against Monroe Community College (MCC). Filozof alleges that MCC violated his First Amendment rights when it did not renew his contract because of his conservative political beliefs. The court's ruling serves as a reminder that public institutions cannot refuse to hire, promote or fire a professor because of his political speech, beliefs or associations.
The Supreme Court has long held that public institutions cannot discipline employees for their political speech, beliefs or associations, and public colleges are no exception. Addressing the practice of public institutions favoring employees who belong to a particular political party, the Court held:
[Employees] will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold, in order to progress up the career ladder... The First Amendment is not a tenure provision, protecting public employees from actual or constructive discharge. The First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate, or to not believe and not associate.
Rutan v. Republican Party, 497 U.S. 62, 72-73, 74-76 (1990). The exception to this general principle is when political speech or beliefs are germane to an employee's official duties—for example, the President can require the members of his cabinet, who must set policy, to have certain, job-related political beliefs.
With regards to Filozof's case, MCC did not argue that his conservative political speech or beliefs were germane to his employment as a professor. Instead, MCC argued, among other things, that Filozof was "close-minded"—and that this characteristic, rather than the content of his speech, was in fact the problem. While close-mindedness could arguably create a pedagogical problem in the classroom, as well as hinder the production of quality scholarship, the judge's description of the case makes it sound more likely that "close-mindedness" was simply a pretext for MCC to not rehire Filozof.
In addition to claiming Filozof was too close-minded, MCC claimed he was not "a good citizen" and indifferent "to departmental and college culture." Such vague charges are often the reasons proffered by administrators who want a capable professor gone for his political beliefs or some other illegitimate reason. It is important to note that "collegiality" and "good citizenship" are not free passes for colleges to enact a heckler's veto—if a group of professors rate another professor as lacking in collegiality because of that professor's political beliefs then that is tantamount to (and equally illegitimate as) the administration punishing a professor because of his political beliefs.
It is relatively uncommon to see professors successfully suing for political discrimination, at least in part because such cases are difficult to prove. Academia is filled with qualified individuals, and because courts are hesitant to second-guess academic decisions, schools can usually articulate a plausible reason for not promoting a particular candidate which the court will defer to, even if the real reason was the candidate's political beliefs. As a result, most professors in this position need a smoking gun—e.g., an e-mail stating, 'let's fire this professor for his conservative political beliefs'—or an impeachable record of teaching, scholarship and service, combined with suspicious timing between the expressed beliefs and the disciplinary action. Filozof—who has the support of his disciplinary group, positive teaching evaluations, and a record of service—may be able to meet this standard at trial.
In addition to Filozof's positive record, MCC seems to have left evidence of their illegitimate intentions. In one particularly troubling incident, after Filozof bowed and kissed his secretary's hand in a dramatic fashion, either the chairperson of Filozof's department or the sexual harassment officer, or both, pressured the secretary to file a formal sexual harassment complaint against Filozof. The secretary obliged even though she explained she did not feel that the action was sexual harassment, nor did she wish to file a complaint. This highlights yet another danger of overbroad sexual harassment policies—administrators can use them to pursue alternative, illegitimate agendas.
We will follow the case should it proceed to trial. Given some of the evidence already released, MCC just might settle.