Last week, we covered a disturbing decision by the Court of Appeals of Indiana granting absolute immunity to college administrators who violated a professor’s free speech rights. Today we return to dissect the decision’s retaliation analysis — or lack thereof. Like the absolute immunity holding, the court’s flawed determination regarding a college’s retaliation policy opens the door for more censorship of professors on campus.
The decision concerns Purdue University’s finding that Professor Maurice Eisenstein was guilty of retaliation for comments he made to two professors who accused him of harassment and discrimination. Those charges were later proved unfounded as, following FIRE’s intervention, Eisenstein was cleared by the university. However, as we explained in our letter to Purdue, Eisenstein was still disciplined for allegedly making the following remarks, the most abrasive of which he denied making:
First, a professor accused Eisenstein of retaliation for the following interaction:
[The professor] reported that she said, “Hi” to Dr. Eisenstein, and that he responded, “Now I know why your son committed suicide.”
Second, another professor accused Eisenstein of retaliation for the following interaction . . .[Eisenstein] sent an electronic communication to two colleagues associated with the Jewish Federation that read:
“There will not be anything from [the professor] sent to anyone in this house. My mother cursed him before her death (a true Orthodox curse.) He knows why. Therefore, there will be no association with him period. I consider anything from him to be in and of itself cursed and therefore untouchable. In respect for my mother z’l, I and my family will also consider him in a like manner.”
At issue was Purdue’s retaliation policy. Eisenstein argued that Purdue used the policy to punish him for his comments — which, while abrasive, were protected speech. That policy reads:
Retaliation against any person for reporting or complaining of discrimination and/or harassment, assisting or participating in the investigation of a complaint of discrimination and/or harassment, or enforcing University policies with respect to discrimination and/or harassment is strictly prohibited. Overt or covert acts of reprisal, interference, restraint, penalty, discrimination, intimidation or harassment against an individual or group for exercising rights or performing duties under these Procedures will be subject to appropriate and prompt disciplinary or remedial action.
The Court of Appeals rubberstamped this policy in denying Eisenstein’s free speech claims. Rather than conducting a thorough analysis of the policy and whether Eisenstein’s comments were protected speech, the court summarily concluded that “[i]t is clear from Eisenstein’s arguments that the statements were overt acts made to harass… [the two professors] for filing their complaints.” The court then engaged in a cursory discussion of vagueness and overbreadth in upholding the policy against his First Amendment challenge.
This is troubling. Retaliation policies are “subject to constitutional guarantees of freedom of speech,” and the court here did not substantively engage in that analysis. To comply with the First Amendment, retaliation policies may not punish expression consisting entirely of “petty slights, minor annoyances, and simple lack of good manners.” Like harassment rules and civility codes, retaliation policies do not pass First Amendment muster when they proscribe large areas of constitutionally protected speech. When universities maintain retaliation policies that could be used as a weapon to punish accused professors for speaking out, they effectively muzzle professors facing unproven allegations of misconduct — a result antithetical to a public university’s obligation to protect expressive rights.
Furthermore, it is preposterous to prohibit professors from expressing their indignation with colleagues who have made baseless charges of unethical behavior against them. In this case, Eisenstein’s remarks to his colleagues may have been impolite, but they failed to rise to the level of punishable retaliation, which is only satisfied when employee’s speech is “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of . . . [misconduct].” A college simply declaring a professor’s remarks retaliatory doesn’t make it so — yet this is essentially what the court decided by ruling against Eisenstein.
When courts fail to properly scrutinize public university speech codes, they pave the way for campus censorship. The work of FIRE and other civil liberties organizations would prove impossible if judges meekly deferred to colleges on these issues, and we hope other courts will engage in a more searching analysis when adjudicating the First Amendment claims of students and professors.