What’s at Stake in KU’s Investigation of Professor’s In-Class Comments? Only Academic Freedom as Faculty Know It

In the midst of the surge in student protests across the country last fall, Torch readers may have caught wind of the case of University of Kansas (KU) communications professor Andrea Quenette, who last November found herself caught in a whirlwind of controversy following the negative reaction of students enrolled in her graduate seminar to her facilitation of an in-class discussion on race.

“Negative reaction” doesn’t begin to cover it.

The students accused Quenette of racial harassment and signed a now widely-seen open letter demanding that KU fire Quenette—effectively asking the university to police in-class speech by faculty to a degree that would be ruinous to academic freedom. Due to the hostile reaction of her students, who refused to continue being instructed by Quenette, she asked for and was given leave through the end of the Fall 2014 semester. Running Quenette out of the classroom wasn’t enough for the students, though; six discrimination complaints were filed against her, which KU has been investigating this semester. The students’ demands for retribution are utterly inimical to academic freedom, and FIRE has written to KU urging it to reject them.

Of importance is that the class session on November 12 took place the night after a town hall meeting called by the KU administration to discuss community concerns about racism at the university, which was attended by roughly 1,000 people. This town hall was spurred by student protests at the University of Missouri, which were still unfolding and igniting a wave of protests at dozens of campuses around the country. The letter, signed by 11 graduate students (10 who were enrolled in Quenette’s seminar and one who was not), describes the in-class discussion as follows:

On the morning of November 12, 2015, a question was posed by Communication Studies Masters student Abigail Kingsford in her COMS 930 class, a required seminar with the primary purpose of instilling best practices in graduate students teaching COMS 130 (public speaking) for the first time. She inquired, “In light of last night’s university-wide town hall meeting about race and discrimination on campus, what is the best approach to talk about that event and these issues with our students?”

We students in the class began discussing possible ways to bring these issues up in our classes when COMS 930 instructor Dr. Andrea Quenette abruptly interjected with deeply disturbing remarks. Those remarks began with her admitted lack of knowledge of how to talk about racism with her students because she is white. “As a white woman I just never have seen the racism…It’s not like I see ‘Nigger’ spray painted on walls…” she said.

As you can imagine, this utterance caused shock and disbelief. Her comments that followed were even more disparaging as they articulated not only her lack of awareness of racial discrimination and violence on this campus and elsewhere but an active denial of institutional, structural, and individual racism. This denial perpetuates racism in and of itself. After Ph.D. student Ian Beier presented strong evidence about low retention and graduation rates among Black students as being related to racism and a lack of institutional support, Dr. Quenette responded with, “Those students are not leaving school because they are physically threatened everyday but because of academic performance.” This statement reinforces several negative ideas: that violence against students of color is only physical, that students of color are less academically inclined and able, and that structural and institutional cultures, policies, and support systems have no role in shaping academic outcomes. Dr. Quenette’s discourse was uncomfortable, unhelpful, and blatantly discriminatory.

[Emphases added.]

In an interview with Inside Higher Ed after the controversy broke, Andrea Quenette described the exchanges this way:

“I believe academic freedom is an important issue in this situation,” Quenette said. “This topic was already the focus of the readings in class for this day, and issues of race and discrimination are current issues our campus is focusing on. I did not call anyone this word, nor did I use it to refer to any individual or group. Rather, I was retelling a factual example about an issue elsewhere.”

She added, “Later in the discussion we discussed low graduation rates for African-American students at KU. I was trying to point out that there are a number of factors that contribute to graduate rate statistics for all students, among them varying levels of academic preparedness. The university needs to identify ways to provide additional academic support for students who may need greater resources to be successful. I believe it is well within the purview of my job to discuss these issues and indeed, it was related to the focus of the class for the day. My words were not intended to hurt anyone but rather to make a larger point that the solutions to race and diversity issues on our campus must directly address the specific problems our campus faces.”

The students’ open letter makes numerous arguments about why Quenette’s speech wasn’t protected by her First Amendment rights or academic freedom. Chief among them is their claim that Quenette’s speech “actively violated,” among other things, KU’s Racial & Ethnic Harassment policy. The students go so far as to declare certain words and lines of argument systematically unfit for the classroom. “[U]nacceptably offensive” is, for example, the “[u]se of the n-word,” which—despite the fact that all are in apparent agreement that it was used in a non-pejorative context and not directed at any individual—they call “terroristic and threatening to the cultivation of a safe learning environment.” The students further declare, “Dr. Quenette’s deployment of racially violent rhetoric not only creates a non-inclusive environment in opposition to one of the University of Kansas’ core tenets, but actively destroys the very possibility of realizing those values and goals.”

These are strong claims. They’re not, however, backed up by KU’s Racial & Ethnic Harassment policy, which defines such harassment as “racially or ethnically motivated” behavior or conduct that “has the purpose or effect of creating an intimidating, hostile, or offensive work or educational environment”; “interfering with an individual’s or group’s work, academic performance, living environment, personal safety, or participation in a university-sponsored activity”; or “threatening an individual’s or group’s employment or academic opportunities.” By the students’ own description of the November 12 class discussion, Quenette did not violate this policy.

Broaching uncomfortable topics and challenging one’s students in a classroom discussion doesn’t come close to violating this policy. In fact, it’s explicitly protected by the policy, which states that it is “not intended to infringe upon freedom of expression or academic freedom,” which it recognizes is “fundamental to the educational process.” This clear defense of free speech is bolstered by years of federal guidance from the Department of Education’s Office for Civil Rights (OCR).

A 2003 “Dear Colleague” letter from then-OCR Assistant Secretary Gerald Reynolds, for example, advised:

Some colleges and universities have interpreted OCR’s prohibition of “harassment” as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program.

OCR has refreshed universities on this basic principle as recently as 2014, when Assistant Secretary Catherine Lhamon reminded universities that “when a school works to prevent and redress discrimination, it must respect the free-speech rights of students, faculty, and other speakers.”

The students’ claim that Quenette’s speech violates KU’s racial harassment policy is only one of the questionable arguments they put forth. They also claim the Supreme Court’s controversial ruling in Garcetti v. Ceballos (2006) should apply in Quenette’s case. In Garcetti, the Court held that a public employee’s First Amendment rights were not violated when he was punished for speech made “pursuant to [his] official duties.” The students argue in favor of applying Garcetti even while acknowledging that the Supreme Court “has not settled on the question of whether or not this analysis extends to ‘scholarship or teaching.’” While the Supreme Court, indeed, has left open the question of whether Garcetti should apply to faculty expression in the academic context, the United States Courts of Appeals for the Fourth Circuit and Ninth Circuit have rightly held that it does not.

Going further down the Garcetti rabbit hole, the students acknowledge that Quenette’s speech had legitimate pedagogical value. Yet they argue that this supports the case for terminating Quenette:

Dr. Quenette’s comments in this specific class, though, clearly demonstrate a legitimate pedagogical concern. The goal of the course is to produce practitioners, so by imbuing racist language, remarks, and viewpoints into the pedagogy her students were meant to replicate, Dr. Quenette was training us to perpetrate acts and ideas violating the policies of the university. Therefore, her speech is not protected by the First Amendment and employer discipline for her remarks is not only legal, but necessary based on her breach of contract.

The students are right in saying that Quenette’s comments “clearly demonstrate a legitimate pedagogical concern.” But that’s about it.

Contrary to the students’ Garcetti claims, FIRE argued that Garcetti doesn’t apply. Instead, the public employee speech test the Supreme Court employed in Pickering v. Board of Education (1968) governs Quenette’s case. To satisfy Pickering, the Court held that protected speech by a public employee must address “matters of public concern” and that the employee’s interest in commenting on such matters should outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

As we wrote in our letter to KU, Quenette’s speech meets both of Pickering’s requirements:

Her comments were made during a single class session in response to inquiries from her students specifically seeking her opinions on how to approach particular issues in their own teaching. Thus, the comments were germane to the classroom subject matter and advanced an academic message. Quenette’s comments were not intended to insult or denigrate her students but were instead intended to demonstrate the limits of her knowledge and perceptions of racism in society, as the students’ letter acknowledges. And there can be no doubt Quenette was speaking on a matter of public concern. Indeed, the discussion of racial and cultural issues in higher education was so pressing that KU held a forum to discuss those very concerns, attended by some 1,000 members of its community the evening before Quenette’s class. Further, her interest in speaking freely with her students on these issues clearly outweighs KU’s interest in disciplining her for her speech, which violates no KU policy.

It’s alarming—not to mention ironic—that a group of graduate students has called on the university to punish a professor for constitutionally protected speech when such a reaction would, in turn, decimate the freedoms necessary to pursue their own careers as academics. Hopefully KU administrators recognize these demands for what they are—calls to police the classroom speech of professors and punish those who step out of line—and reject them.