Rounds Hall Clocktower at Plymouth State University (Credit: Pjard / Shutterstock)

FIRE calls on Plymouth State University to rescind faculty punishment over participation in criminal trial

By September 13, 2018

Last week, FIRE wrote to Plymouth State University, calling on the university to reverse adverse actions taken against two PSU professors for participating in a criminal prosecution and offering support for a criminal defendant during her sentencing.

This summer, PSU professor emeritus Michael Fischler and adjunct professor Nancy Strapko weighed in on the trial of former Exeter High School guidance counselor Kristie Torbick, who pled guilty to sexually assaulting a 14-year-old student. Fischler sent a letter to the court asking for leniency, and Strapko served as a paid expert witness for Torbick.

This did not sit well with PSU administrators, especially after the trial elicited widespread media coverage. Due to the controversy surrounding the professors’ participation, PSU refused to rehire Strapko and required Fischler to complete Title IX training as a condition for teaching classes this fall.

By imposing penalties on these professors, PSU runs afoul of the First Amendment and its own academic freedom policies. Although adjunct professors are without the benefits of tenure, public universities may not refuse to rehire them over protected expression, as such an act is retaliatory in nature and violates their First Amendment rights.

Furthermore, state university professors generally may not be punished for their speech as private citizens, so long as the expression consists of matters of public concern and does not disrupt the educational environment. Both Fischler and Strapko were speaking as private citizens because they were not employed by PSU for purposes of providing analysis to the trial court judge, and a reasonable recipient of their communications would not believe they were made on behalf the university, especially one that explicitly disavowed the opinions of these professors in this matter.

Criminal proceedings against a former public employee are inherently matters of public concern, as evidenced by the substantial coverage of Torbick’s prosecution. Finally, public anger toward the university does not rise to the level of disrupting the proper functioning of the university, rendering PSU powerless to discipline these professors for their expression.

Through its course of action, PSU disregards the profound societal importance of ensuring that witnesses and others with relevant information come forward when called to testify in criminal trials — a civic responsibility that forms the backbone of any functional system of justice. Disciplining faculty for participating in the sentencing of a criminal defendant sends a chilling message to all PSU professors, discouraging them from participating in public affairs if it has the potential to create negative reactions within or outside of the university.

As an institution that has attained FIRE’s highest, “green light” rating for revising its speech codes, PSU has made a strong institutional commitment to protecting free speech and academic freedom. We call on PSU to put these policies into practice by rescinding its punishments of these professors.

Schools: Plymouth State University