East Stroudsburg University of Pennsylvania (ESU) has finally reinstated professor Gloria Gadsden this week after suspending her for more than a month, pending a psychological examination, because of comments about her students on Facebook. Taking actions that would have been worthless if Gadsden had truly presented a threat as the university asserted, ESU put her on paid administrative leave because she had posted obvious jokes including that she "didn't want to kill even one student." After FIRE intervened and a clinician found her fit for work, Gadsden returned to the classroom last week.
Gadsden's saga began in late February, after someone who had access to her Facebook page (it is unclear who; it seems that Gadsden's posts were unintentionally set to be accessible to the public) reported that Gadsden had posted the joke on February 22, "Had a good day today. Didn't want to kill even one student :-) ... Now Friday ... that was a different story." She also had posted the joke on January 21, "Does anyone know where I can find a very discrete [sic] hitman? Yes, it's been that kind of day..."
Given the context of these postings—tongue-in-cheek expressions of frustration with the workaday world, sharply denoted by a "smiley face" emoticon—no reasonable reader would have construed these postings as communicating a serious intent to kill or harm a student. Gadsden's message was clearly not threatening to anyone and did not name anyone. Nor did Gadsden note that she was referring to any particular course or group of students. In addition, the first posting clearly notes that whatever negative feelings she might have had three days earlier, those feelings had already passed.
On February 24, however, Gadsden attended a meeting with College of Arts & Sciences Dean Peter Hawkes to discuss Gadsden's "postings on Facebook." According to Gadsden, Hawkes suggested that the comments were threatening, invoking an unrelated shooting at another college campus earlier in the month. Gadsden reports that ten minutes after this meeting, she was placed on leave by Hawkes, who was accompanied by a security officer. According to Gadsden, the security officer escorted her out of the building and kept watch until she reached her car in the parking lot.
According to a letter sent to Gadsden on February 26 by Interim Provost and Vice President for Academic Affairs Marilyn J. Wells as a "follow up" to the meeting with Hawkes, "The University is concerned about your conduct and believes that it is necessary for you to undergo a fitness for duty evaluation." (Emphasis added.) Wells' letter also stated that ESU had put Gadsden on paid administrative leave pending a mandatory "psychological evaluation [at the university's cost] to determine your fitness for continued duty and type of treatment, if any, that you may require." The university reserved discretion to "make a final determination" after receiving "the outcome of the assessment (fit or unfit for duty)" by the evaluator.
The letter also banned Gadsden from "report[ing] to your position at the University without prior authorization." Under the ban, Gadsden missed various meetings as well as her five regularly scheduled classes this term, which were taught by other faculty members.
Wells' letter also demanded that a psychological evaluation be performed by a specific clinician to be named by ESU no later than March 19, 2010. Gadsden was not provided with anyone's name until the night of March 8—nearly two weeks after the meeting with Hawkes. It is probably no coincidence that FIRE had written President Robert J. Dillman earlier that day. We pointed out in our letter that this timeline completely betrays any idea that ESU genuinely thought Gadsden was a person to worry about:
One further marvels at how far Gadsden's expression (not "conduct") falls from constituting a "true threat" as defined by the Supreme Court. In Virginia v. Black, 538 U.S. 343, 359 (2003), the Court noted that true threats consist of only "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Gadsden did not threaten to commit any type of violence, nor did she express any sense of serious intent. Nor did Gadsden target a particular individual or group; the most specificity in her postings at all is a reference using the word "student." Therefore, it remains mystifying that anyone could construe Gadsden's postings as communicating a true threat or any sign of being "unfit for duty."
Moreover, ESU's actions indicate that the university does not even believe that Gadsden is any threat at all. If ESU did think so, only incomprehensible negligence and incompetence would explain the lengthy delay in even providing the name of the clinician for the mandatory evaluation. Nor would ESU give Gadsden, supposedly a potential killer, a full three weeks to complete the evaluation. Real concern for the safety of ESU students, if someone really were threatening to kill them, might include a ban on any presence on campus, contact with the police to evaluate the potential threat, and immediate psychological evaluation if recommended after appropriate review by the police. ESU apparently has done none of these things. Instead, ESU has merely taken actions that give the appearance of taking a potential threat seriously. In the end, it appears that ESU has decided that the appearance of responding to minor utterances on Facebook is more important than the rights of its own faculty members.
In short, it is untenable for ESU, a public university, to deny its faculty the right to freely express their feelings off campus without fear of being put on leave and forced to undergo mandatory psychological evaluations with clinicians chosen by the university, the results of which must be reported to the university. In light of the First Amendment, ESU must make clear, in no uncertain terms, that individuals and faculty members are free to engage in such speech, which the First Amendment protects. No reasonable person would see Gadsden's postings as a danger to the campus, ESU itself apparently does not truly believe she is a danger, and the fact that another faculty member elsewhere had recently shot some of her colleagues should have no bearing whatsoever on the analysis of Gadsden's postings.
ESU's March 16 response from University Legal Counsel Suzanne C. Hixenbaugh was laughable. She went trolling around FIRE's website and finally found something that FIRE Vice President Robert Shibley wrote back in 2008 in order to justify ESU's illogical actions. Robert wrote that the Internet's characteristics take away "some of the ability for people to determine the source of ... information and whether or not it is true." Hixenbaugh incoherently added, "This statement rings particularly true for postings made on Facebook where the statements may be communicated to individuals outside of the immediate circle of Facebook friends."
Hixenbaugh also exaggerated the case by suggesting that ESU had already determined that Gadsden's posts were threats: "[First Amendment] freedoms are not absolute in the face of threats made against its students." Actually, that's called begging the question. At the end of her letter, however, Hixenbaugh wrote that "The University's knowledge of perceived threats comes with a responsibility to act in a manner that ensures the safety of our students, employees and our campus community. Accordingly, when such perceived threats are brought to its attention, the University will act accordingly to explore the context of the statement and the intentions of the speaker."
OK, well, the investigation easily could have ended during the February 24 meeting, once the "context" and Gadsden's "intentions" became clear. ESU does teach critical thinking, right?
The clinician, predictably, found Gadsden fit for duty, and she was reinstated effective March 31 without conditions. It is of note that the clinician pointed out that being suspended because of one's Facebook comments can be a significant stress on someone. If anything, ESU caused its own problems—unnecessary stress for the people involved as well as disruption of five regularly scheduled courses for more than a month, not to mention a bunch of bad publicity—in the name of addressing innocent online comments that were simply not threatening in the first place.