Free Speech Win for Paramedics Instructor Deemed Insufficiently ‘Sensitive to Diversity’

April 15, 2014

Elizabeth Nolan Brown at Reason Online

A California paramedics instructor deemed insufficiently “sensitive to diversity” will be allowed to return to his position at Antelope Valley College (AVC). The college settled with the instructor, Lance Hodge, after a federal judge deemed his lecture about unusual cultural practices paramedics might encounter a matter “of public concern” and allowed Hodge’s first amendment claim against AVC to proceed.

In 2010, Hodge—a long-time paramedic and tenured AVC instructor—gave a lecture about “weird” cultural practices his students might encounter in the field. In his career as an emergency medical technician (EMT), Hodge said he’d been exposed to “witch stuff,” people using heated coins for healing, and women eating placenta after childbirth.

Now it’s certainly not polite or “politically correct” to describe cultural practices foreign to you as “weird.” But as far as “insensitivity to diversity” goes, it’s pretty mild. Perhaps AVC Dean of Health Sciences Karen Cowell, who was attending Hodge’s lecture that day, could have pulled him aside after class and suggested he reconsider his phrasing, and Hodge would have, and everybody could have moved on.

Cowell’s main objections to Hodge lecture were his use of the word “burning” to describe a healing method more properly referred to as “coining” and his use of the word “weird.” Deeming Hodge’s statements as “inappropriate and disrespectful,” the school required Hodge to improve his “sensitivity to diversity” by writing a paper on discrimination and delivering a one-hour class lesson on cultural diversity.

Hodge fulfilled both requirements, submitting a 27-page paper and a lesson plan titled “Political correctness vs. the real world: The EMT and professionalism in the face of offensive language or behavior and our understanding of stereotyping and prejudice.” The paper was accepted, but not the lesson plan, and Hodge was threatened by human resources with disciplinary action if he delivered it. He was also expected to submit another proposed diversity lesson plan.

Hodge filed a grievance, saying the punishment would violate school policy, which grants that “academic freedom in the pursuit and dissemination of knowledge in an educational environment shall be ensured and maintained” and states that faculty “shall not be subjected to censorship or discipline” for expressing “controversial or unpopular” views. The school responded by saying that Hodge had violated AVC’s ethics policy, which requires employees to be “fair and respectful in all interactions” with students, “work with people without prejudice,” and “respect the personal values, beliefs, and behaviors of others.”

While those are fine norms for workplaces and academia, they’re also incredibly open to interpretation. “Respect” relies on intent, and that’s hard to verify (we’re also in an era of increasing progressive scorn for intent). For his part, Hodge says the point of the original lecture was teaching his students to respect diversity.

With the help of the Foundation for Individual Rights in Education (FIRE), Hodge challenged the university’s assessement in a letter, asking the school to “rescind its requirement that Hodge present a lecture on ‘cultural diversity’ because of his protected classroom expression.” When AVC refused, Hodge and FIRE filed a complaint in the U.S. District Court for the Central District of California.

In the complaint, Hodge alleged First Amendment retaliation and infringement of academic freedom under the First Amendment. In February, District Judge Philip S. Gutierrez allowed Hodge’s First Amendment retaliation claim to proceed. From Gutierrez’s decision:

“Until a few weeks ago, Plaintiff’s First Amendment retaliation claim presented a novel question of law in this Circuit: To what degree are a public university professor’s teaching and writing protected by the First Amendment?

The Supreme Court explained in (Garcetti v. Ceballos) that ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.’ However, the Supreme Court did note a possible exception to this far reaching rule, reserving the question of whether its holding applied to ‘speech related to scholarship or teaching.'”

Seizing upon this exception, the Ninth Circuit recently held (in Demers v. Austin, 2014) that teaching and academic writing must receive greater protection under the First Amendment than what Garcetti currently provides. It concluded tha a public university professor’s academic speech is protected by the First Amendment under two conditions: it addresses “matters of public concern” and the employee’s interest in commenting on these matters outweighs the state’s interest in “promoting the efficiency of the public services.”

Guiterrez decided that both Hodge’s situation fulfilled both conditions. He chastised AVC for “consider(ing) the form of (Hodge’s) speech to the exclusion of its context and content.”

Earlier this month, AVC and Hodge settled the case out of court. The school will pay half of Hodge’s legal fees, he will retain tenure, and he will not face disciplinary action nor be required to offer an approved diversity lecture.

“After two years of litigation, I am very pleased with the court’s determination that Mr. Hodge’s classroom speech on matters related to public safety and the performance and training of first responders is protected by the First Amendment,” said Hodge’s lawyer, FIRE Legal Network attorney Arthur Willner. “It is in the interests of the students, faculty, and the community at large to foster the free and open discussion of these issues.”