Chief Judge of Ninth Circuit: Academic Freedom Imperiled by Previous Decision | The Foundation for Individual Rights and Expression

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Chief Judge of Ninth Circuit: Academic Freedom Imperiled by Previous Decision

Last Wednesday, the United States Court of Appeals for the Ninth Circuit denied a rehearing en banc in the case of Emeldi v. University of Oregon, Inside Higher Ed reports. The denial of rehearing was issued without comment, but the dissent, penned by Ninth Circuit Chief Judge Alex Kozinski, is scathing, invoking stirring principles of academic freedom.  

First, the Chief Judge summarizes the facts: 

Monica Emeldi, a former Ph.D candidate at the University of Oregon, had a falling out with her dissertation advisor... Emeldi says that she complained to a university administrator about sex discrimination, the administrator relayed this complaint to Emeldi's advisor and the advisor resigned as her dissertation chair in retaliation... Emeldi also asserts, again without evidence, that the advisor prevented Emeldi from finding a replacement, thus forcing her to withdraw. 

After all evidence was collected at trial, the University of Oregon (UO) filed a motion for summary judgment, essentially arguing that the only evidence of sex discrimination was the opinion of Emeldi herself. But the district court refused to dismiss the lawsuit, and on appeal to a three-judge panel of the Ninth Circuit, two judges voted to let the lawsuit continue. UO had the opportunity to ask the Ninth Circuit as a whole to reconsider the ruling, and, in last Wednesday's ruling, the court denied its request. 

To Chief Judge Kozinski, letting the case proceed is a big mistake because of the incentives it provides for students to bring litigation challenging academic decisions they don't like: 

[The decision] jeopardizes academic freedom by making it far too easy for students to bring retaliation claims against their professors. Plaintiffs will now cite Emeldi in droves to fight off summary judgment: We may not have any evidence, but it's enough under Emeldi. Defendants will go straight to trial or their checkbooks—because summary judgment will be out of reach in the Ninth Circuit. 


The relationship between professor and Ph.D. student requires both parties to engage in candid, searing analysis of each other and each other's ideas. Methodology, philosophy and personality often lead to intractable disputes and, when they do, the professor must be free to walk away without fear of a frivolous discrimination suit.

It's not just the practicalities of academia that require this freedom. The First Amendment does, too. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978). In equating Title IX with Title VII, the panel overlooks the critical differences between academia and the outside world. It applies the law so loosely that one of the laxest interpretations of the pleading standard is now planted squarely in academia, just where the pleading standard should be highest. If this ill-considered precedent stands, professors will have to think twice before giving honest evaluations of their students for fear that disgruntled students may haul them into court. This is a loss for professors and students and for society, which depends on their creative ferment.

If, as Judge Kozinski argues, "[i]n the place of evidence, the majority permit[ted] Emeldi to create a material issue of fact by speculation," then Emeldi's case ought to have been dismissed. To be sure, this characterization is up for debate; students who have evidence that they have been discriminated against by professors using poor academic performance as a pretext should have access to legal remedies. But facts matter, and judges should only allow lawsuits to go forward only if they are based on actual evidence. Academic freedom demands this. 

The court was right to permit Emeldi to sue, and to go through discovery, and to search for and present evidence. But if there were truly no evidence to support the accusation, the discrimination claim should have been dismissed.

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