Year in Review: Punished for Public Expression, Professor Finds Exoneration with FIRE

2006 saw a lot of extraordinary cases for FIRE: the censorship of a Dave Barry quote at Marquette; thought reform at Michigan State; harassment charges at the University of Central Florida because one student called another “a jerk and a fool” online at Facebook.com.

But one case in particular arguably holds the dubious distinction of being 2006’s most egregious violation of constitutional rights on a college campus. At the State University of New York at Fredonia, Professor Stephen Kershnar endured a tumultuous summer, almost losing his promotion for refusing to acquiesce to an unconstitutional “prior review” of his public statements after he authored newspaper columns critical of the school. Thanks to FIRE’s help, however, Professor Kershnar continues to exercise his First Amendment rights at SUNY Fredonia into the new year without fear of administrative reprisal. It’s a case that warrants recollection as we wind down 2006 and prepare to usher in 2007.

Professor Kershnar, an associate professor of philosophy, was well-liked in his department, and was proposed for promotion to full professor in January 2006. Because of Kershnar’s exemplary professional record, his nomination was strongly supported by his colleagues and by the head of Fredonia’s Philosophy Department.

However, Professor Kershnar was not one to be shy about sharing his opinions on SUNY Fredonia’s policies, mincing no words as he chastised the school’s affirmative action procedures and bemoaned its paucity of conservative professors in the local newspaper, the Dunkirk-Fredonia Observer. In addition, Kershnar was quoted in an article about SUNY Fredonia’s student code in The Buffalo News, stating that the code would “turn the student population into a group of snitches.” These articles, published in the spring of 2006, would soon land Kershnar in trouble with SUNY Fredonia’s administration.

In an e-mail sent to the entire Fredonia community, President Dennis L. Hefner complained of “media misrepresentation” of school policies. Kershnar responded to President Hefner’s e-mail with one of his own, arguing that he had criticized, not misrepresented, Fredonia’s policies. In response, Hefner issued a stern warning to Kershnar, telling him he needed to “start acting like a responsible member of this campus community.”

In late April, Hefner denied Kershnar’s promotion, stating that while his teaching record had won acclaim, his promotion would be refused because of his “deliberate and repeated misrepresentations of campus policies and procedures…to the media.” However, Hefner hinted to Kershnar at a subsequent meeting that Kershnar could still win promotion, if he agreed to refrain from making public statements critical of the school.

Kershnar responded to Hefner’s comments by drafting a contract that would establish, for one year, a “Prior-Consent Committee” comprised of two faculty members who would determine whether Kershnar’s public statements misrepresented the university. In so doing, Kershnar—who holds a J.D. from the University of Pennsylvania Law School in addition to a Ph.D. in Philosophy from the University of Nebraska, Lincoln—was unsubtly informing President Hefner that he was asking for a form of prior review.

Failing to pick up the hint, Hefner in turn proposed an even more restrictive—and, of course, flagrantly unconstitutional—contract. Hefner’s version would have established a larger “Prior-Consent Committee” that would last indefinitely and would require unanimous consent for approval of any writing by Kershnar. Kershnar refused Hefner’s proposed terms, contacting FIRE instead.

FIRE’s July 7 letter to President Hefner began to turn the tide in Kershnar’s favor. On July 20, Hefner responded to FIRE, refusing to comment on the case. However, on that same day, he sent another letter to Kershnar, again denying his promotion, but this time making no mention of the “misrepresentation” he had based his decision on previously.

Obviously, the cover-up was on, but the media pressure garnered by FIRE’s press release would prove too powerful to be ignored. An editorial written by FIRE President Greg Lukianoff and Vice President Robert Shibley appeared in the New York Post on August 1, providing an exceptionally large audience for FIRE’s case. Robert and Greg wrote: “While free speech too often comes under assault on campuses these days, President Hefner’s brazen attempt to control a professor’s public speech is in a class by itself. Kershnar should get the promotion he merits and Hefner—or anyone else who seeks to use the office of university president to silence opinions they dislike—should be out of a job.”

Ten days later, SUNY Fredonia took half of FIRE’s advice. On August 11, President Hefner reversed his decision, granting Professor Kershnar his promotion with no strings attached. This month, Professor Kershnar finished his first semester as a full professor. As Greg said at the time, “We are very pleased that SUNY Fredonia has seen the error of its ways. SUNY Fredonia was violating the First Amendment, its own contractual promises, and the canons of academic freedom. We hope that in the future universities will consider their duty to protect the marketplace of ideas before they set out to quash dissent.”

We at FIRE hope that 2007 brings, at the very least, a greater understanding on the part of administrators of the legal obligations a public school maintains under the Constitution. Here’s to hoping.