Professor fired for defending Black Lives Matter on Fox News files lawsuit

Lisa Durden, the former adjunct professor at New Jersey’s Essex County College who was fired following a testy ppearance on Fox News’ Tucker Carlson Tonight, filed a lawsuit against the school yesterday in New Jersey state court. Durden’s lawsuit follows FIRE’s own lawsuit against the college, which revealed that there were no records to evidence the college’s claims of having been “immediately inundated” with complaints.

Last summer, Durden appeared on Carlson’s show to discuss whether it was appropriate for a Black Lives Matter group in New York City to hold an event that excluded white people. Durden’s relationship with Essex was never mentioned on air, but administrators at the troubled college terminated her anyway. In a videotaped statement, Essex County College’s president, Anthony Munroe, intoned that the institution had been “immediately inundated” with “feedback from students, faculty and prospective students” who expressed “fear” about Durden:

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That wasn’t true.

After Essex stonewalled FIRE’s public records requests asking for records of being “inundated,” we filed a lawsuit, prompting the college to finally share its records. What did they reveal? Nothing close to having been “immediately inundated,” unless you count one person’s irate email:

Essex County College’s internal records do not support its leadership’s claims that it was “immediately inundated” with “feedback from students, faculty and prospective students and their families expressing frustration, concern and even fear” about Durden’s views. To the contrary, the records indicate that administrators had already decided to take action before any member of the public contacted them. And, for the first 13 days after Durden’s appearance, only one person contacted the college to complain.

Durden’s suit alleges claims arising under the state constitution’s guarantees of freedom of expression. As New Jersey’s Supreme Court has observed, the state’s constitution provides even broader protection of freedom of expression rights than those embraced under the First Amendment:

The New Jersey Constitution guarantees a broad affirmative right to free speech: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.” . . . . That guarantee is one of the broadest in the nation . . . , and it affords greater protection than the First Amendment[.] Federal law requires “state action” to invoke the First Amendment. See U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom of speech....”); . . . . The State Constitution does not.

As my colleague Ari Cohn pointed out when Durden was fired, employees of government institutions like Essex retain First Amendment rights to speak as private citizens on matters of public concern. Essex’s conduct — whether they were “inundated” with outrage or not — was a stark breach of Durden’s rights to freedom of expression:

It is indisputable that Durden’s speech is protected by the First Amendment, and indeed constitutes precisely the type of speech that the First Amendment was intended to protect. Durden spoke as a private citizen and was introduced only as a “political commentator,” and . . . [President] Munroe’s statement even acknowledges that she “was in no way claiming to represent the views and beliefs of the College.” Durden’s expression was also squarely related to a matter of public concern, as evidenced by its coverage on a national news program. She opined on a contemporary political and social movement and its tactics, a matter of significant public debate around the country.

[Munroe’s June 23 statement] insinuates that Durden’s expression created an environment that is unwelcoming to some students. . . . Durden appeared on Tucker Carlson’s show not to discuss any campus issues, but rather an event miles away, in an entirely different city and state. Moreover, even in explaining the rationale of Black Lives Matters in restricting attendance at their event, Durden expressly stated that she might not have made the same decision that they did, and that she was simply respecting and defending their position. Durden did not endorse or encourage similar activities at ECC, or anywhere else. Nor is there any indication that Durden has engaged in any form of discrimination against her students, or that her students will ever risk being treated differently based on their race.

Durden’s lawsuit also alleges that one administrator, following Durden’s termination, said “She's just an adjunct. If she doesn't like it, she can sue.” Well, that’s true.

Essex has complained to The Intercept that its inability to substantiate the purported tidal wave of complaints has been “mischaracterized.” How, exactly, is a mystery. Now they’ll have an opportunity to explain that absence of evidence to “just an adjunct” — now joined by her lawyer — and the court.