FIRE Letter to UCSD Chancellor Marye A. Fox, May 16, 2007

By May 16, 2007

May 16, 2007

Chancellor Marye A. Fox
University of California, San Diego
9500 Gilman Drive, MC 0005
La Jolla, CA 92093-0005

Sent via U.S. Mail and Facsimile (858-534-6523)

Dear Chancellor Fox:

As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, due process, freedom of speech, and, in this case, academic freedom on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned about the threat to free expression and academic freedom posed by the University of California, San Diego’s (UCSD’s) recent decision not to rehire Thurgood Marshall College’s Dimensions of Culture Program (DOC) Teaching Assistants Benjamin Balthaser and Scott Boehm. Rather than being motivated by legitimate performance issues, the discontinuance of Balthaser and Boehm’s employment was apparently due solely to their criticism of the DOC’s core curriculum and what Balthaser and Boehm perceived to be the intentional dilution of the DOC’s original mission.

This is our understanding of the facts. Please inform us if you believe we are in error. In addition to studying at UCSD as Ph.D. candidates, Balthaser and Boehm have been employed as Teaching Assistants (TAs) for the DOC since 2003 and 2004, respectively. Working as DOC TAs, both Balthaser and Boehm have received consistent praise and positive performance evaluations from students, their TA peers, and DOC administrators. Balthaser and Boehm’s unique dedication to the DOC program has been readily demonstrated in many ways throughout their time with the DOC: for example, by their organization of extracurricular events for DOC students and by the invitation they received to deliver a twenty-minute presentation on the history of Thurgood Marshall College at the school’s opening lecture this past year. By all reports, Balthaser and Boehm have been model TAs and a credit to Thurgood Marshall College. Indeed, Boehm was awarded the Thurgood Marshall College Distinguished Teaching Award in 2006 for his outstanding performance in his capacity as a TA.

Despite their exemplary work, however, Balthaser and Boehm have not been asked to return to work as TAs next year, a decision apparently made solely on the basis of their repeated criticism of the DOC’s curricular choices. By both the public and private admission of Dr. Abraham Shragge, the current Director of the DOC, the decision not to renew Balthaser and Boehm’s contracts was not based on their teaching performance, but rather was due to their public and private criticism of the DOC’s management and direction. 

Balthaser and Boehm’s relationship with Dr. Shragge, who joined the DOC as director in 2004, has been marked by repeated disagreements over the program’s direction. In response, Balthaser and Boehm have participated in organizing two student groups over the past three years: Students and Scholars Mobilized Against Repressive Times (SMART) and the Lumumba-Zapata Coalition (LZC), each formed with the intent of lobbying for a renewed commitment to the DOC’s original mission as understood by each group’s membership.  

During the Spring 2005 semester, SMART organized a national conference on academic freedom, held at UCSD. One of the conference’s panels, moderated by Balthaser, was a discussion of the DOC’s perceived drift from its founding intent. After the conference, Balthaser and Boehm report that they were verbally reprimanded by Dr. Shragge in a private meeting for speaking poorly of the program publicly and for inviting a former DOC TA to participate in the panel discussion. During the Fall 2006 semester, Boehm and other dissatisfied and concerned TAs held two meetings with Dr. Shragge to discuss the DOC’s direction, at which they voiced objections to a revised mission statement prepared by Dr. Shragge. Later, during the Winter 2007 semester, Dr. Shragge met again with Boehm to inform him that his proposed plans for student presentations—structured by Boehm in the same way as they had been in years prior, including during Boehm’s award-winning job performance in 2006—were no longer acceptable.

In a break with previously established DOC TA hiring procedures, all DOC TAs were informed by Dr. Shragge near the end of the Winter 2007 term that they would be subject to personal interviews before rehiring for the 2007-2008 academic year. During their separate interviews with Dr. Shragge, both Balthaser and Boehm report that Dr. Shragge told them to look for work elsewhere because they were “undermining” the program, being “disrespectful,” and obstructing Dr. Shragge’s attempts to promote “collegiality.” In each interview, Dr. Shragge clearly stated that the decision not to rehire Balthaser and Boehm was unrelated to their teaching performance.

Indeed, Dr. Shragge has publicly attributed this decision to his discomfort with Balthaser and Boehm’s public criticisms of the DOC. When asked about the impetus behind the decision not to renew Balthaser and Boehm’s contracts, Dr. Shragge told InsideHigherEd.com that the two TAs “get good ratings as teachers. That’s a fact.” (Elizabeth Redden, “Inquiry or Indoctrination?”, http://www.insidehighered.com/news/2007/05/03/ucsd.) Instead of basing the decision on job performance, Dr. Shragge continued, he chose not to renew Balthaser and Boehm’s contracts because they were “stir[ring] up a lot of campuswide dissent” and have “created a very hostile atmosphere” in a “working environment that depends on collegiality.” Dr. Shragge also stated that Balthaser and Boehm have “been very hostile” to him personally. However, while acknowledging their disagreements with Dr. Shragge on teaching-related matters, both Balthaser and Boehm deny having ever been “hostile” to Dr. Shragge in any personal interaction. 

When considered together in sum, the facts strongly indicate that Dr. Shragge chose not to rehire Balthaser and Boehm solely because of their repeated criticisms of the DOC program. UCSD’s actions represent a shameful attempt to silence respected TAs whose views do not accord with those of the administration.

UCSD is a public university and therefore has an overarching legal obligation, in addition to its moral obligation, to ensure the First Amendment rights of its faculty and students. In penalizing Balthaser and Boehm for their public statements on controversial curricular decisions, UCSD has violated their constitutionally protected right to free expression. Universities have a special obligation to protect the right to dissent and disagree, and without this commitment, the collegiate “marketplace of ideas” cannot function.

There can be little doubt that Balthaser and Boehm’s expression is protected speech, guaranteed by both the U.S. Constitution and decades of Supreme Court decisions. Additionally, Balthaser and Boehm’s critique of the DOC’s curricular choices qualifies as speech regarding a “matter of public concern.” In City of San Diego v. Roe, 543 U.S. 77, 84 (2004), the Supreme Court defined a matter of public concern as “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Because the curriculum of Thurgood Marshall College’s DOC program has been the subject of national scrutiny from conservative academic watchdog organizations in years past, and because Balthaser and Boehm’s criticisms and subsequent unemployment have garnered the attention of Thurgood Marshall College’s student government and press, their statements about the DOC’s mission and focus deal with a matter of public concern. 

Because, as UCSD TAs, Balthaser and Boehm are public employees, their protections under the First Amendment when speaking on matters of public concern must be evaluated under the standard first enumerated by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the Court held that while teachers as public employees do not enjoy the complete protection of the First Amendment because of the government’s “interests as an employer in regulating the speech of its employees,” a balance must be struck between “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. If the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally,” then “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public,” and the teacher’s speech enjoys First Amendment protection. Id. at 568, 573. 

Applied to the facts at hand, the Pickering standard shows Balthaser and Boehm’s criticism of the DOC to be protected speech. Balthaser and Boehm have demonstrated that their ongoing criticism neither impedes their performance in the classroom nor interferes with the operation of the DOC or Thurgood Marshall College generally. After all, they publicly criticized the DOC at the national conference they held at Thurgood Marshall during the Spring 2005 term. Despite the fact that the criticism earned Balthaser and Boehm a verbal reprimand, the DOC administration still saw fit to award Boehm a Distinguished Teaching Award in 2006. Additionally, Boehm’s most recent “Evaluation of Teacher Performance” report, signed by Dr. Shragge and Assistant Director Pamela S. Wright at the conclusion of the Winter 2007 term, describes Boehm as “exemplary,” a “passionate advocate for DOC” and a “positive force within the college community.” Similarly, Balthaser’s Winter 2007 evaluation states that he “continues to be a highly valued asset to the DOC program.”

Pickering’s “public concern” standard was recently revisited by the Supreme Court in Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006). In Garcetti, the Court held that the government, as employer, has authority to impose restrictions on “speech that has some potential to affect the entity’s operations” and that statements made by employees “pursuant to their official duties” do not enjoy First Amendment protection as otherwise dictated by Pickering. Id. at 1961. (Emphasis added.) However, in so holding, the Court explicitly acknowledged the possibility that “that expression related to academic scholarship or classroom instruction”—precisely the speech at issue here—may “implicate[] additional constitutional interests…not fully accounted for by this Court’s customary employee-speech jurisprudence.” Id. at 1962. It is also important to note that the Court in Garcetti nevertheless reiterated Pickering’s holding insofar as it represented a rejection of an attempt by school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” By discontinuing the employment of Balthaser and Boehm because of their speech on a matter of public concern, Dr. Shragge has impinged upon the free expression rights owed to Balthaser and Boehm under the First Amendment and has unquestionably sought to “limi[t] [their] opportunities to contribute to public debate.”

Dr. Shragge’s comments to InsideHigherEd.com implied that Balthaser and Boehm’s public statements demonstrate their lack of “collegiality,” promoting “campuswide dissent” that he judges to be “very damaging to the program.” But should not a public university welcome varied opinions? Is that not the very definition of the “marketplace of ideas?” By choosing not to rehire Balthaser and Boehm for the sole offense of publicly stating their disagreement with UCSD’s policies and practices, you have sent the message that dissenting opinions are intolerable, and that they alone may block one’s prospects for employment within the university.

Such action stands in stark contrast to the promises made by the university in UCSD’s “Principles of Community,” which state in no uncertain terms that freedom of expression is valued at the university (“We affirm the right to freedom of expression at UCSD”). The university makes an even stronger commitment to freedom of expression in Section 16.10 of UCSD’s student conduct code, which unequivocally announces that “UCSD is committed to ensuring that the exercise of constitutional rights of free and open discussion, expression, and advocacy are not only protected but encouraged as a vital aspect of the spirit of free inquiry appropriate to a university setting.” While we are pleased to learn that UCSD comprehends both its legal obligation to uphold the Constitution and the moral and pedagogical importance of free expression in an academic setting, we cannot reconcile UCSD’s stated commitments to freedom of expression with its actions in the instant case.

Please note that FIRE takes no position regarding the content of Balthaser and Boehm’s speech, nor do we necessarily support the mission of the DOC as they understand it. A class may indeed have a “viewpoint,” as Boehm told InsideHigherEd.com in describing his conception of the DOC, but FIRE opposes mandatory education which coerces students to adopt a particular ideological viewpoint. Such a program would impermissibly violate a dissenting student’s freedom of conscience, as the First Amendment guarantees students the right to hold views that differ from those they are taught. However, our hypothetical concerns about Balthaser and Boehm’s intentions for the DOC in no way diminish our commitment to ensuring their right to advocate for whatever changes to the program they wish. The First Amendment demands no less, and UCSD is both legally and morally bound to honor its provisions. 

We ask that UCSD reexamine its decision not to rehire Benjamin Balthaser and Scott Boehm. To restrict freedom of expression and academic freedom is to risk stifling the free and open flow of ideas upon which higher education relies. Surely, this does not describe your vision for UCSD.

We hope to hear from you soon about a resolution. FIRE is committed to supporting the rights of Balthaser and Boehm and, ultimately, to seeing this matter through to a just and moral conclusion. We have enclosed signed waivers of Balthaser and Boehm’s rights under the Family Educational Rights and Privacy Act, allowing UCSD to discuss this matter with FIRE.

We request a response on this matter by May 24, 2007.
 
Sincerely,
 
 
William Creeley
Senior Program Officer
 
Encl.
 
cc:
Benjamin Balthaser
Scott Boehm
Dr. Abraham Shragge, Director, Dimensions of Culture, Thurgood Marshall College, UCSD 
Pamela S. Wright, Assistant Director, Dimensions of Culture, Thurgood Marshall College, UCSD
Allan Havis, Provost, Thurgood Marshall College, UCSD