Last month, FIRE wrote to the University of California, Los Angeles, after it suspended longtime professor Gordon Klein for declining to alter exam schedules and grading practices for Black students in the midst of the nationwide protests and unrest following George Floyd’s homicide in Minneapolis. UCLA suspended Klein and denounced his actions as an “abuse of power” — even though Klein was following UCLA’s own policies.
At almost the same time, another UCLA faculty member, Lt. Col. W. Ajax Peris, a former U.S. Air Force pilot, came under heavy criticism for reading from Martin Luther King, Jr.’s “Letter from a Birmingham Jail,” including its recounting of the use of racial slurs. FIRE has now written to UCLA in Peris’ defense as well, asking UCLA to respect his academic freedom rights and uphold its obligations as a public institution bound by the First Amendment — one whose admirable policies on free expression, incidentally, earn it a coveted “green light” rating from FIRE. Our letter follows the initiation of an investigation by the United States Department of Education into the matter.
While the tenor of the discussion on the issues raised by George Floyd’s death has changed, universities’ basic obligations under the First Amendment have not.
In a virtual class lecture, Peris read a portion of King’s “Letter from a Birmingham Jail,” which contains a couple of uses of the word “nigger.” On June 2, one UCLA student tweeted a video of Peris reading a passage from King’s letter, declining to omit the epithet, and expressed outrage at his uncensored reading and called for his termination. In short order, UCLA’s College of Letters and Science referred the matter to the Office of Equity, Diversity and Inclusion for review, and Peris’ department chair sent a letter to departmental faculty condemning his reading of the passage and noting that he had referred Peris to UCLA’s Discrimination Prevention Office. The chair also faulted Peris for showing portions of a documentary that included graphic images and descriptions of lynching, as well as narration that, the chair wrote, “quoted the n-word in explaining the history of lynching.” The current status of any investigation into Peris’ teaching and expression — or whether a formal investigation has been initiated at all — is unknown.
Those who have followed FIRE’s work in recent years know there is no shortage of cases in which faculty find themselves facing possible investigation, removed from teaching, or even facing loss of tenure and termination, for repeating racial slurs in a relevant academic context. FIRE’s advocacy in this arena includes defending Emory University law professor Paul Zwier, who faced a year-long investigation for his use of the term “nigger” while discussing systemic racism with law students, and professors Phil Adamo and Laurie Sheck, respectively of Augsburg University and The New School, who both came under fire for their uncensored use of the term while teaching from the works of James Baldwin.
As FIRE told UCLA, though some students may have been made uncomfortable by Peris’ teaching, his speech was fully protected by his academic freedom — as well as, given UCLA’s status as a public institution, his First Amendment rights. As FIRE wrote in its letter (citations omitted):
Courts have grappled specifically with the use of this particular word in the context of higher education and have consistently ruled on the side of academic freedom. In Hardy v. Jefferson Community College, the United States Court of Appeals for the Sixth Circuit denied qualified immunity to administrators who terminated a Caucasian adjunct instructor who led a “classroom discussion examining the impact of such oppressive and disparaging words as ‘nigger’ and ‘bitch.’” The Sixth Circuit upheld the finding that “the use of the racial and gender epithets in an academic context, designed to analyze the impact of these words upon societal relations, touched upon a matter of public concern and thus fell within the First Amendment’s protection.” In denying qualified immunity to the college administrators, the court held that “reasonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment.”
Nor is it likely that pedagogically-relevant discussion of racially-offensive material will amount to a hostile environment, as that concept is defined under the law. The Ninth Circuit—whose decisions, again, are binding on UCLA—has explained that faculty members’ expression of offensive viewpoints, as they pertain to matters of public concern, will rarely amount to actionable workplace harassment.
As the U.S. Court of Appeals for the Ninth Circuit ruled in the above-mentioned case:
Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment. For instance, racial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities, as they do not “seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way[.]
The United States Department of Education has also raised concerns, initiating an investigation into whether the university’s response is “inconsistent with UCLA’s representations to students, the public, and the Department regarding its instructors’ right to free inquiry and exchange of ideas, to present controversial material relevant to a course of instruction, and to enjoy constitutionally protected freedom of expression.” The Department warns that this “inconsistency” could render the university’s published commitments to free expression a “substantial misrepresentation regarding the nature of UCLA’s educational program in violation of” federal law. As a result, the Department has opened an investigation into UCLA’s response, seeking documents and interviews with those involved in the decision, and warning that the university could face “monetary penalties and other measures” if the investigation finds that it made substantial misrepresentations.
The Department of Education’s response could have broader implications for institutions of higher education. In its proposed regulations following the president’s March 2019 executive order, the Department warned that it views the “substantial misrepresentation” prohibition as a vehicle to hold “public and private institutions . . . accountable” for departing from advertised commitments to freedom of expression. As a result, public and private institutions that promise their students and faculty expressive rights risk action from the Department of Education if they violate those rights.
As we noted last month in our statement addressing the wave of demands for censorship colleges have seen in recent weeks, while the tenor of the discussion on the issues raised by George Floyd’s death has changed, universities’ basic obligations under the First Amendment have not. UCLA must, consistent with its First Amendment and academic freedom obligations, promptly end any investigation into Peris’ teaching and cease its chilling of the climate for free expression and academic freedom. With the rights of two faculty members now in question, the spotlight on UCLA is that much brighter.