University of La Verne takes steps to terminate tenured law professor Diane Klein for protected expression

On April 3, professor Diane Klein received notice that the University of La Verne — the southern California school where she has taught law for over 15 years — was moving to strip her of tenure.

Why?

Because she made an offhand, metaphorical comment about a colleague after a Faculty Senate committee meeting. 

FIRE wrote to the University of La Verne last week, asking the university to reject the College of Law Personnel Committee’s recommendation to revoke Klein’s tenure. If you share FIRE’s concerns, we invite you to write to ULV as well:

TAKE ACTION: Ask ULV to reinstate Professor Klein's tenure

Tensions rise at the ULV College of Law

Last year, the ULV Faculty Senate ad hoc committee, established to discuss the potential closure of the university’s law school, drafted a report of its concerns about the College of Law’s path forward. One thing the committee members considered was whether to include their criticisms of the Center for Academic & Bar Readiness, managed by Assistant Dean Jendayi Saada. The committee ultimately decided not to include concerns specifically related to CABR in its report. According to ULV, after the meeting Klein made the following statement to another professor: “We have to decide whether we are willing to assassinate Jendayi—and I, for one, am willing to do it.”

That meeting took place on Nov. 26.

This was not the first instance of friction between the traditional law faculty and Saada. In January 2018, Klein requested CABR data concerning her students after ULV graduates reported low California bar exam passage rates. In response, Saada reported Klein to the university’s human resources administrators for harassment, employing what should now be a familiar metaphor: She alleged Klein was “attempting to assassinate her character,” presumably by questioning the efficacy of her program.

To Klein’s surprise, almost a month after the faculty senate ad hoc committee meeting, she was called to meet with an outside investigator to discuss a report that she had threatened Saada’s life. That meeting took place on Dec. 20, and later that day Klein was placed on administrative leave with pay. She was also prohibited from communicating with ULV faculty, staff, or students on any subject, and physically barred from campus.

The months that followed only increased Klein’s frustration.

ULV moves to terminate Klein and strip her of tenure

On Jan. 6, at a meeting of the Faculty Senate, ULV’s general counsel announced that the investigation into Klein’s remark was complete. At the time, Klein herself had received no such notice, but two days later she was placed on administrative leave without pay and told that ULV intended to strip her of tenure and terminate her.

On Jan. 10 — some 45 days after the offending comment — Saada filed for a civil restraining order against Klein in San Bernardino Superior Court. She also reported the threat to the Ontario Police Department some time in early January. Neither of these reports ended in any action against Klein: Saada failed to appear for the hearing on her petition for a restraining order, and Ontario police interviewed Klein on Jan. 9, but she never heard anything further from them.

On March 20, ULV held a hearing before the College of Law Personnel Committee concerning Klein’s tenure and position. ULV, for its part, presented no evidence other than unorganized binders containing various documents from Klein’s time at ULV, student reviews, and references to human resources “investigations” — the full reports of these investigations were never provided to Klein. The formal outcome of this hearing was the April 3 notice Klein received recommending that her tenure be involuntarily surrendered.

Characterization of Klein’s remark as a ‘true threat’ and as the impetus to remove her tenure presents a serious threat to faculty freedom of expression

ULV has characterized Klein’s remark as “criminal” and as a threat of violence. But metaphorical language that borrows from violent themes is not equivalent to making a “true threat,” which is not protected speech. Responses of the other parties involved here make it doubtful that anyone genuinely interpreted Klein’s remark as such a threat, and any attempt to categorize Klein’s remark as an unprotected true threat is inconsistent with First Amendment jurisprudence.

As we wrote in our April 10 letter:

Klein’s clear intent was to express institutional criticism of the internal flaws at the ULV College of Law and the CABR program, and her opinion that to do so would also require criticism of Saada herself. There is no evidence that Klein ever considered or intended to assassinate Saada. Saada herself has used the word “assassinate” in the context of previous criticism of her program by tenured faculty, claiming that they were attempting to “assassinate” her character. Either an objective or subjective evaluation of Klein’s intent in making her remark to Professor Doskow inexorably leads to the conclusion that she did not intend to threaten Saada’s life or physical wellbeing.

. . .

[T]he First Amendment and any reasonable understanding of freedom of speech plainly protects such expression, even when it obliquely, hyperbolically, rhetorically, or sarcastically implies physical harm to another. Such speech, like Klein’s comment, remains protected expression and cannot reasonably be considered a true threat to physically harm another.

Saada’s own behavior, once aware of the remark, is also wholly inconsistent with someone who is in fear for their life or physical wellbeing. Although she became aware of Klein’s comment and ULV’s investigation in mid-December, she waited weeks to report the alleged threat to the police or to petition for a restraining order. As we wrote to ULV, “[t]he amount of time that passed between Saada’s cognizance of the alleged threat and decision to report it to the authorities, as well as her failure to diligently follow up concerning the legal proceeding, do not indicate that she was truly in fear for her life or wellbeing.”

Although ULV is a private institution, it makes promises of freedom of expression and academic freedom to its faculty. ULV includes in its faculty handbook that “the right to academic freedom includes the right to free inquiry [and] the free exchange of ideas,” and expresses a commitment “to providing to its faculty members the protections of academic freedom.” The American Association of University Professors’ definition of academic freedom, which includes faculty members’ “freedom to express their views . . . on matters having to do with their institution and its policies,” is informative here. People—including faculty members—often speak in informal and sometimes metaphorical ways, and to punish a professor for employing metaphorical language in their criticism of the way their institution runs will have a chilling effect on speech.

ULV’s faculty handbook provides for review of the College of Law Personnel Committee’s recommendation that Klein lose her tenure. If you, like FIRE, are concerned about ULV’s treatment of Klein and the threat it poses to faculty freedom of expression, we encourage you to express your concerns to ULV Provost Jonathan Reed.

We hope to soon be able to report that ULV has rejected the College of Law Personnel Committee’s recommendation and that Klein’s tenure and position are secure.