Alliance Defense Fund Goes Head to Head with the University of Illinois over Howell Case

Late yesterday, the Alliance Defense Fund (ADF) reported that the University of Illinois at Urbana-Champaign (UIUC) has replied to ADF's warning that it had violated the constitutional rights of adjunct professor Kenneth Howell. UIUC decided not to rehire him after he had been teaching for nine years. Its decision, by all indications, came because Howell had e-mailed the students in his class comparing what he described as Catholic and utilitarian criteria for making moral judgments about sexual conduct. FIRE also intervened in the case last week, and I provided further analysis of the situation on Monday. Today we examine the University of Illinois' reply and ADF's response to the reply.

On July 15, 2010, University of Illinois Deputy University Counsel Steven A. Veazie wrote ADF a short reply to its July 12 letter. Veazie cites the University of Illinois Statutes to assert that the university is dedicated to faculty members' individual rights after all:

The University is fundamentally committed to upholding the principles of the First Amendment and academic freedom. The University of Illinois Statutes ... state that it is the policy of the University to maintain and encourage full freedom within the law of inquiry, discourse, teaching, research and publication ... [Emphasis in original.]

Good start. Veazie then gets to the point:

First, contrary to some reports, Prof. Howell has not been "fired." He held, and continues to hold, the appointment of adjunct professor. Second, his teaching assignment for this coming fall is as yet undetermined pending a review of this matter by the Faculty Senate's Committee on Academic Freedom and Tenure (CAFT).

This is a reversal of all previous accounts of what happened to Howell. According to The News-Gazette, Associate Dean Ann Mester told other UIUC staff that "the e-mails sent by Dr. Howell violate university standards of inclusivity, which would then entitle us to have him discontinue his teaching arrangement with us." And just about everyone, including FIRE, has been reporting on the basis of this evidence and more that Howell undoubtedly had been let go. He even lost his job at the nearby Newman Center (which was paying his salary for the UIUC courses he was teaching, in an arrangement I discussed on Monday) because the Newman Center was convinced that he had been let go by UIUC.

Yet, as I wrote on Monday, this is a welcome development. It shows that the university is backtracking in the right direction, and thus I agree with ADF's Heather Gebelin Hacker when she writes that Veazie's letter means that the university is "suspending" its earlier decision.

Finally, Veazie seeks to encourage ADF not to litigate this matter, suggesting that CAFT will indeed reverse the non-rehire decision and that thus there has been no actual adverse action against Howell:

While I do not want to speculate on the outcome, the CAFT and University administrators who[m] you wrote to are fully committed to upholding principles of academic freedom and the requirements of the First Amendment. The University has not implemented any action which would violate these principles or Dr. Howell's legal rights. For these reasons, there is no case or controversy upon which legal action would be warranted at this time.

We disagree. As FIRE's letter to UIUC stated, the harm at UIUC has already occurred and is ongoing; an investigation of a professor's protected expression violates his or her rights. Further, every day without a resolution of Howell's case deepens the chilling effect on the rest of the university's faculty members, who must now understand that honestly stating their interpretation of the Catholic position on sexual conduct could make them the next ones getting the axe. According to Veazie, a professor can be told he will be punished because of his protected speech, but until the decision has been "review[ed]," there is no controversy.

ADF also disagrees. According to ADF's response to Veazie on July 20, reviewing UIUC's non-rehire decision is not sufficient:

While this is a step in the right direction, suspension of the University's decision to relieve Dr. Howell of his teaching duties does not reinstate him or cure the constitutional injuries he suffered. Prior to the University's actions against Dr. Howell, he was scheduled to teach during the fall 2010 semester. Yet as of today, he does not have a teaching assignment. While he continues to hold his appointment as adjunct professor, that title is virtually meaningless if he has no classes to teach.

Further, the University's current actions do not change the fact that Associate Dean Ann Mester stated that Dr. Howell's academic email to his class violated "university standards of inclusivity." Relieving Dr. Howell of his teaching duties based on violation of these standards chilled his speech and violated his First and Fourteenth Amendment rights. [Footnote reference omitted.]

ADF also challenges Veazie's suggestion that CAFT might be predisposed to rule in Howell's favor. Indeed, quoting University of Illinois President Michael Hogan, there is reason to believe the opposite:

We are concerned that the Committee's investigation into this matter is tainted already with bias toward affirming the dismissal. President Michael Hogan commented that the purpose of the Committee is to "reassure ourselves there was no infringement on academic freedom here." ... Also, the University has provided no assurance that this review will be fair and in accordance with due process. [Footnote reference omitted.]

Finally, I agree with ADF's conclusion that

[i]f the University is truly committed to the First Amendment freedoms of its faculty and their academic freedom in the classroom as your letter claims, then there is no need for the Committee's review of this matter. President Hogan [or whoever has the authority to do so] must simply correct the constitutional injuries by restoring Dr. Howell to his previously assigned teaching responsibilities.

The ball is now in the university's court for a few more days. ADF asks for a response by July 27, 2010; FIRE asked for a response by July 30. Stay tuned here to The Torch for further developments.