Here comes another free speech lawsuit for college officials in the University System of Georgia.
Torch readers likely are aware of the ongoing Valdosta State University (VSU) federal lawsuit, in which a district court has issued an order denying various VSU officials qualified immunity (which means they can be personally sued and held liable for monetary damages) because of their role in the expulsion of student Hayden Barnes, who was peacefully protesting the construction of new parking garages on campus. If you don’t remember that case, it’s outrageous–so outrageous that the judge in the case agreed that if Barnes’ allegations are true, reasonable college officials should have known they were violating his constitutional rights:
Having already determined, for purposes of this motion to dismiss, that Barnes’s speech was protected by the First Amendment, the court finds that the defendants were on notice and had fair warning that retaliating against him for his speech and expression against the proposed construction of the parking garage would violate his constitutional rights.
Last Thursday, August 5, a new free speech lawsuit put the President and the Vice President for Legal Affairs of East Georgia College (EGC) in similar danger. As FIRE has been reporting since September 2009, EGC President John B. Black dismissed Professor Thomas Thibeault from campus and had him escorted from campus by police after he criticized the school’s sexual harassment policy during a faculty training session about that very policy.
During the training in August 2009, Thibeault related a story about another professor and asked, "What provision is there in the sexual harassment policy to protect the accused against complaints which are malicious or, in this case, ridiculous?" Vice President for Legal Affairs Mary Smith, who was conducting the session, replied that there was no such provision to protect the accused, so Thibeault responded that "the policy itself is flawed." According to Thibeault, Smith also "explained to the EGC faculty that violations of EGC’s sexual harassment policy are determined based on the subjective view of the accuser rather than an objective, reasonable person standard" as the law requires, and Thibeault also complained about Smith’s interpretation of the policy during the meeting.
The next day, according to Thibeault, "Smith began a retaliatory crusade against Thibeault. Smith summoned numerous EGC faculty and staff members to her office and demanded that they provide information about their interactions with Thibeault during his tenure with EGC." The day after that, Thibeault was summoned to President Black’s office. According to Thibeault’s written account of the meeting, which Black received but to our knowledge has never disputed, Black told Thibeault that he "was a divisive force in the college" and that Thibeault must resign by 11:30 a.m. or be fired and have his supposed "long history of sexual harassment … made public." Black added that Police Chief Drew Durden would escort Thibeault from campus and that he had notified the local police that Thibeault should be arrested for trespassing if he returned. Thibeault was never presented with any charges against him or given a chance to present a defense. Refusing to resign, Thibeault understood that he was fired, and Durden escorted him from campus.
Black also sent Thibeault a letter, dated August 7, notifying Thibeault that his contract would not be renewed for the 2010-2011 academic year. Most likely realizing that he had violated college policy, Black soon began attempting to justify his treatment of Thibeault after the fact. On August 11, Black wrote Thibeault to say that since Thibeault had failed to resign by the deadline, "EGC has begun dismissal proceedings. … [A] faculty committee has been appointed to conduct an informal inquiry." He then paradoxically wrote, "Their charge is to advise me whether or not dismissal proceedings shall be undertaken." On August 25, Black wrote Thibeault again, claiming that Thibeault had actually been suspended, not terminated. Despite the lack of evidence, Black wrote that the reviewing committee found "sufficient evidence to support your suspension." Black added that Thibeault was about to be terminated for sexual harassment, that the charges finally would be sent upon request, and that Thibeault finally could request a hearing.
FIRE outlined many of these shocking violations of due process and freedom of speech in a letter to University System of Georgia Chancellor Erroll B. Davis Jr. on August 27, 2010, with copies to Black and Smith. Davis did not respond. FIRE’s letter is now one of the exhibits in Thibeault’s lawsuit.
Thibeault requested the charges and a hearing on August 28, but Black never fulfilled his promise and the Georgia Attorney General’s Office began to intervene. Black finally wrote on October 20 that "I have made the decision that the evidence does not warrant the charge of sexual harassment."
Yet even then, Black compounded the violations of Thibeault’s rights, adding that the letter was a "reprimand to you for the use of offensive language and angry outbursts in your past interactions with your colleagues. This letter is further a warning that, if I receive any complaints … you may face further disciplinary action including termination." Black also stated that "you must show better judgment and discretion in the future when engaging in discussions in the public work setting." Once again, the reprimand failed to provide any evidence, notice, hearing, or witnesses.
Furthermore, on October 27, Vice President for Academic Affairs Tim Goodman began demanding that Thibeault sign a statement that "some of what he has said in the past has bothered some people" as a condition of his return to work. The statement also provided no evidence whatsoever for the claim that "some are fearful that he will lose his temper and do something rash," a line which appears to be intended to disparage Thibeault and mar his reputation.
It seems to me that EGC, President Black, and Vice President Smith failed to meet their constitutional and moral obligation to respect freedom of speech, academic freedom, and due process. Anyone in Smith’s and Black’s positions should have known that you can’t start investigating a professor because he challenged a policy on the previous day, and then fire him on the next day in retaliation for his complaint and his otherwise protected speech. Black also never lifted his retaliatory decision to not rehire Thibeault for the next academic year.
We’ll see if the judge in the case agrees. If Black and Smith lose their qualified immunity in this case, too, it will be a fine day for freedom of speech in Georgia. The message will be that if you knowingly violate a student or faculty member’s speech rights in Georgia, you are in danger of having to pay out of your own pocket.
Stay tuned to The Torch for updates.