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FIRE raises questions about UCLA lecturer Keith Fink’s firing

By August 4, 2017

Did in-class criticisms of administrators influence University of California, Los Angeles Interim Dean of Social Sciences Laura Gómez’s June 27 decision not to renew part-time lecturer Keith Fink’s contract? A new letter from FIRE asks UCLA for answers.

Fink had contested the fairness of the “Excellence Review,” a review lecturers undergo after 18 quarters of teaching to determine whether they meet the university’s standard of excellence, long before UCLA made the decision not to renew his contract. Since Fink’s firing, both UCLA and Fink have publicly disagreed about the reasons why the university chose not to renew Fink’s contract. As detailed in FIRE’s letter, Gómez’s letter notifying Fink of the non-renewal fails to provide specific justifications for the decision.

In a comment to The Chronicle of Higher Education after Fink’s non-renewal, Associate Professor and Vice Chair Greg Bryant stated that the case was “handled by the book.” However, Bryant also claimed that Fink — who taught “Sex, Politics, and Race: Free Speech on Campus” and would often criticize UCLA administrators’ treatment of student rights in class — “was pushing his own views harder than [Bryant thought] he should.”

Bryant explained his view more fully in his March 19 teaching evaluation of Fink’s “Free Speech on Campus” class. The evaluation stated, in part:

The lecture I observed was essentially a review, and was the last lecture before an exam the following week. Mr. Fink began by reviewing current events which I thought should be an effective technique for a class like this. He immediately launched into an analysis of a letter written to the UCLA community by Jerry Kang, the Vice Chancellor for Equity, Diversity and Inclusion. The letter is a note about recent Title IX investigations, and a report of new developments. Mr. Fink had a rather combative and provocative tone, and throughout the lecture mentioned “Dean Kang” many times, all rather unfavorably. He was highly critical of specific aspects of the letter and the Title IX officers, telling the students that they were not qualified to be in their positions. While the connections to course content were not always clear, he took particular issue with the SVSH mandatory reporting policy. This is the first instance of many throughout the class where he seemed to be using his lecturer role as a means to espouse his personal legal views. I felt like this aspect reduced his credibility, even when I agree with his specific legal points (which in this lecture overall was often). The course is political in nature, but I could imagine his treatment of the issues being much more balanced, which I believe would greatly enhance his teaching effectiveness.

[ . . . ]

The lecture continued with various free speech instances, all interesting and provocative, that afforded opportunities for Mr. Fink to ask students to identify the relevant legal cases, but also argue his specific opinion. In particular, I found his examples of art compelling, and I appreciated his defense of artists’ rights to free speech. But overall, his tone continued to feel unnecessarily hostile, especially regarding UCLA administrators and policies which he constantly returned to. At one point, he quipped how he was surprised that the current class got approved in the first place, and repeatedly attacked UCLA as not supportive of free speech rights. I believe Mr. Fink clearly has a right to express these views, especially in a class on the topic of free speech, but as a teaching technique, I feel the more he belabors his points about UCLA in particular, the more he undermines his credibility and objectivity as an instructor.

Today, FIRE wrote to UCLA Chancellor Gene Block asking for clarification: Did Fink’s in-class criticisms of UCLA’s treatment of free speech — in a class about free speech — play a role in the decision not to renew his contract?

First, FIRE’s letter explains that Fink’s in-class comments, regardless of how ill-received they may have been by UCLA’s administration, were protected under academic freedom:

The Supreme Court has also made clear that academic freedom is a “special concern of the First Amendment,” stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). Accordingly, the U.S. Court of Appeals for the Ninth Circuit has extended robust protection to expression “related to scholarship or teaching” by faculty members at public colleges and universities even when made pursuant to their official job duties. See Demers v. Austin, 746 F.3d 402, 412 (9th Cir. 2014) (“We conclude that Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing that are performed “pursuant to the official duties” of a teacher and professor.”).

FIRE also pointed out that in 2009, Block himself published a statement stressing the importance of academic freedom after a UCLA panel focusing on human rights in Gaza elicited controversy. Block argued that “UCLA is a public institution with core values of academic freedom and the free exchange of ideas” and that “the university must always give wide latitude to individual expression and to our entire faculty, whose job it is to educate and enlighten. Importantly, we are training students to think critically and to be responsible citizens.” Citing that statement, FIRE explained:

You rightfully praise academic freedom and the free exchange of ideas as “the pillars of university life” and note the importance of allowing students to hear diverse and sometimes controversial viewpoints. Fink’s criticism of UCLA administrators’ dealings with free speech in a class dedicated to discussing and analyzing the pivotal role of free speech in campus life, while perhaps ill-received by UCLA’s administration, can hardly be said to fall outside the wide swath of speech protected under any meaningful conception of academic freedom, or Fink’s First Amendment rights. Your stated commitment to academic freedom is admirable—but it is only credible and worthwhile if it also applies to in-class speech, like Fink’s, that possesses the potential to upset administrators. UCLA may not retaliate against Fink for exercising the rights that he is morally and legally entitled to.

Finally, FIRE notes that, as a public university, the operations of UCLA and its administration’s treatment of students’ rights are inescapably matters of significant importance to both the UCLA community and the taxpaying public. Simply put, UCLA administrators may not, consistent with its obligations under the First Amendment, make employment decisions based on employees’ criticism of them:

Courts have consistently held that a core purpose of the First Amendment is to shield criticism of governmental bodies and public officials from official threat or retribution. See Ariz. Free Enter. Club’s Freedom Fund PAC v. Bennett, 564 U.S. 721, 755 (2011) (“[T]here is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs.”) (internal citation and quotation marks omitted); New York Times Co. v. Sullivan, 376 U.S. 254, 296–97 (1964) (Black, J., concurring) (“[F]reedom to discuss public affairs and public officials is unquestionably, as the court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion.”). This is particularly true in the university context. Rodriguez v. Maricopa County Cmty. College Dist., 605 F.3d 703, 708-09 (9th Cir. 2010) (“[T]he desire to maintain a sedate academic environment… [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.”) (internal citation omitted).

Bryant’s review of Fink’s free speech class and his public comments about Fink “pushing his own views harder than . . . he should” suggest Fink’s in-class criticisms may have played a role in his non-renewal.

FIRE looks forward to UCLA’s response to the letter and hopes that it sheds light on both administrators’ decision-making in Fink’s case and the state of academic freedom at UCLA.

Schools: University of California, Los Angeles