Too Quick to Suspend?

September 26, 2013

It would be hard to find a faculty advocate opposed to the suspension last week of a University of Florida professor of veterinary science who was secretly taking videos of students’ body parts with a device hidden in his pen. Administrative — and police — action came swiftly, without any public objection from fellow instructors.

But beyond such a clear violation of professional conduct, and, in this case, the law, faculty advocates often are quick to criticize institutions for jumping the gun with punishments. A spate of forced leaves for professors in recent memory raises the question of what exactly constitutes suspension-worthy speech and action — particularly a suspension made unilaterally by administrators.

In other words, does a line exist and, if so, where?

The answer, some experts said, is another question: Does the faculty member’s exercise of his or her rights violate anyone else’s? And some fear that institutions may be becoming too quick to suspend in cases in which faculty conduct may have resulted in hurt feelings but not actual harm.“

The proper line to draw is where a professor’s actions interfere with the legitimate rights of others,” said John K. Wilson, co-editor of the American Association of University Professors’ "Academe" blog, editor of AAUP’s Illinois Conference Academe journal, and author of the book Patriotic Correctness: Academic Freedom and Its Enemies.

If, for example, a professor commits a crime against students (such as video voyeurism), it’s punishable, Wilson said in an e-mail. So, too, is unfairly grading or meeting the “high bar” of discriminating against some group of students; making verbal threats in violation of the law; or engaging in academic fraud. And professors can be suspended for failing to do their jobs, such as refusing to teach.

Still, that’s all with due process – and the professor should keep teaching as his or her case is being adjudicated, outside of being an immediate threat to students or others on campus. (Even the Florida professor deserves the right to defend himself before fellow professors at some point, faculty advocates said.)

But a professor can’t be punished if he or she “merely says something that offends someone,” Wilson said. “When a professor is suspended for expressing controversial ideas, it violates the rights of students to hear those ideas, and the rights of everyone on campus who must live in a climate of fear about freedom of expression.”

That students don’t obtain the right “not to be offended” is a position long held by the Foundation for Individual Rights in Education.

In an e-mail, Robert Shibley, vice president of FIRE, said: “A faculty member’s expression does not lose protection, nor is it punishable by a state university, simply because someone might find it offensive (even highly so).”

Speech is more protected than conduct, where administrations have a bit more “latitude” in judgment, Shibley said; the former mode of expression has “long been recognized as fundamental to the academic enterprise.” First Amendment case law and AAUP statements on academic freedom and tenure, including protections for intramural and extramural faculty expression, “have been widely accepted.”

And yet, in the last year and a half, several professors have been put on near-immediate administrative leave for utterances or actions that seemingly didn’t violate anyone else’s personal freedoms.

Last week, a tenured professor of journalism was put on administrative leave from the University of Kansas following a controversial, anti-National Rifle Association Twitter remark he posted following the Washington, D.C., Navy Yard shootings. Michigan State University put on leave a tenured professor of creative writing who was videotaped disparaging Republicans in class earlier this month.

Last academic year, a Florida Atlantic University adjunct professor of communications was put on leave and barred from campus, ostensibly for his safety — effectively fired, given his temporary employment status – for his “stomp on Jesus” exercise. (In an interview with Inside Higher Ed Deandre Poole said he never used those words; he was later rehired). Also in 2012, a tenured professor of sociology at Appalachian State University was put on leave for showing her students an explicit documentary about pornography, which she said was academically relevant (administrators also said her in-class language was “hostile” to student athletes). Jammie Price has since been reinstated, but can now be fired “at will,” according to the details of her contract, she said in an e-mail.

FIRE found fault with those suspensions. In the most recent case, for example — that of Kansas’ David Guth, whose tweet blamed the NRA for the Navy Yard shooting and said “next time, let it be YOUR sons and daughters” – the offense doesn’t meet the legal definitions of the "limited categorical exceptions" to the First Amendment, Shibley said.“

It is not a true threat, it does not constitute harassment or incitement, it is not obscene, and it is not defamatory,” Shibley said. And while “unpleasant and upsetting to some,” it’s not unlawful.

Guth told Inside Higher Ed he accepted his leave in part to protect students from death threats he’d received since his statement. But Wilson called even that kind of agreement “illegitimate,” as it was reached under pressure and because academic freedom doesn’t “belong” to the professor alone.

A faculty member’s expression does not lose protection, nor is it punishable by a state university, simply because someone might find it offensive (even highly so).”

–Robert Shibley, Foundation for Individual Rights in Education

Shibley said he couldn’t comment with "any certainty" on whether or not faculty suspensions for protected speech are on the rise. That said, he added, “the issue does seem to be coming up more often recently.”

But there also are recent examples of institutional acceptance of faculty utterances some deemed questionable.

The University of Rhode Island publicly distanced itself from a professor’s Twitter remarks calling for the NRA CEO’s “head on a stick,” in the wake of the Newtown, Conn., mass shooting in 2012. But Erik Loomis, assistant professor of history, remained in the classroom, despite many calls for his dismissal. 

In a different kind of incident, Columbia University all but ignored public reaction to a physics professor who in February stripped down to his underwear and featured sword-wielding ninjas and 9/11 imagery during a lecture on quantum mechanics.

The different treatment of questionable utterances stems from a variety of factors, but primarily from the fact that they are subjective; even the idea of what constitutes a violation of someone else’s "legitimate" rights can be subjective. Consequently, there’s no one document from AAUP or elsewhere that outlines what constitutes words or actions warranting suspension.

Neal McCluskey, associate director of the libertarian Cato Institute’s Center for Educational Freedom, said subjectivity is particularly acute at public institutions, which must “somehow balance both the free speech rights of professors – the right not to have government punish speech – and the rights of taxpayers not to support speech they find unacceptable. That leads to judgments that will always infringe on someone’s rights.”

Private institutions, which aren’t taxpayer-funded, don’t face the same issue, McCluskey said, “but it’s still very hard to set a clear line.”

Drawing on the doctrinal definition of academic freedom, which guarantees a professor’s right to teach or do research on ideas that may be unpopular, he said: “As close as it gets seems to be that a professor may say anything in class that is related to their subject matter.” He added the following qualifier: “[And] that is not intended to offend.”

Extramural utterances speech can be “more troublesome,” McCluskey said, because the professor still carries the “imprimatur” of the institution.

Greg Scholtz, director of tenure, governance and academic freedom for AAUP, said in an e-mail that experience shows “precisely ‘where the line gets drawn’ cannot be defined in the abstract and necessarily depends on the facts particular to the particular case. And these cases are often extremely complicated.”

Ultimately, he said, a professor’s faculty peers should determine in each case whether conduct or speech warrants suspension, or some other sanction – or whether it’s protected.

As a result, the AAUP takes “considerable interest” in the procedures institutions follow when sanctions are threatened or imposed, Scholtz said. It opposes unilateral, administrative sanctions, in which the faculty plays no role.

If an administration wishes to suspend a faculty member pending a dismissal for cause, it should do so only after consulting a faculty body and only if the faculty member constitutes a threat of "immediate harm" to himself or others, Scholtz said. "The AAUP has not, by the way, construed bad publicity as an ‘immediate harm.’ "

View this article at Inside Higher Ed.