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Federal judge’s dangerous speech code ruling overshadows promising due process decision

Last week, a federal district court issued a ruling in a lawsuit brought by University of Michigan professor Pamela Smock against her institution that is notable for its sharply divided outcomes on several major civil liberties issues facing public university faculty. While the decision is promising with regard to campus due process protections, its holding on freedom of speech and academic freedom threatens faculty rights.

Pamela Smock, a tenured sociology professor and demographer whose scholarship focuses on issues involving sexuality and gender, sued the University of Michigan earlier this year. Smock sued after she was disciplined for alleged misconduct specified in a 2016 accusation by three students that Smock “made inappropriate jokes and had conversations of a sexual nature with them.” Smock denied the allegations and was subjected to an eight-month-long investigation.

The investigation concluded that Smock had engaged in behavior that, while not rising to the level of harassment, was “inappropriate” and violated a university policy governing “Professional Standards for Faculty.” That policy, intended to promote “an environment of trust, openness, civility, and respect,” prohibits

oral, written, visual, or physical actions by a member of the faculty that, according to a reasonable person standard: a) Have the purpose or effect of unreasonably interfering with an individual’s employment or educational performance; and/or b) Have the purpose or effect of creating an intimidating, hostile, offensive or abusive climate for an individual’s employment, academic pursuits, living environment, or participation in a University activity.

As a result of the alleged misconduct, Michigan sanctioned Smock by freezing her wages for three years, forbidding her from serving as the primary advisor to graduate students, and significantly limiting her sabbatical privileges.

Policy threatens free speech, academic freedom for faculty

In her suit, Smock alleged that the policy was overbroad because it prohibited speech protected by the First Amendment and vague because it failed to meaningfully define the conduct it forbids.

The district court ruled the Michigan policy was not overbroad because public universities possess broad power to dictate faculty standards of “civility” and “professionalism.” “Civility of discourse and openness of discourse are ideals in opposition as much as they are in concert,” wrote Judge Arthur J. Tarnow, “but the task of calibrating this balance is best left to the University.” Judge Tarnow correctly recognized that “public universities may not force professors to endorse or eschew specific viewpoints.” But in holding that “the First Amendment does not bar a public university from requiring that its faculty treat each other and their students with civility,” the court granted public university administrators de facto permission to silence those voices and viewpoints deemed insufficiently “civil.”   

As another federal judge wrote in enjoining San Francisco State University from enforcing a civility policy in 2007, “the word ‘civil’ is broad and elastic — and its reach is unpredictably variable in the eyes of different speakers.” And as the United States Court of Appeals for the Ninth Circuit has observed, “[t]he desire to maintain a sedate academic environment, ‘to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,’ is not an interest sufficiently compelling … to justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.”

Requiring faculty to act with “civility” — and deferring entirely to the university to determine what “civility” means — might easily be used as cover for administrative actions against faculty who express unpopular ideas or opinions. For an example of how this form of censorship works in practice, read FIRE Executive Director Robert Shibley’s commentary on the University of Illinois’ defense of its treatment of Professor Steven Salaita.

Smock also argued that her alleged comments of a sexual nature to students were protected by the First Amendment under basic precepts of academic freedom, given the focus of her scholarship and teaching. But the court found that Smock’s speech did not touch upon a matter of public concern, and could therefore be subject to discipline.

Due process holding protects faculty rights

With regard to Smock’s due process arguments, however, the court’s ruling is protective of procedural rights on campus: The court held that Michigan failed to provide Smock with meaningful due process because it prevented her from cross-examining the students who accused her. Judge Tarnow cited September’s landmark ruling in Doe v. Baum, in which the U.S. Court of Appeals for the Sixth Circuit held that the University of Michigan, and public universities like it, must provide for some form of cross-examination in campus judicial proceedings that turn on credibility.

“[I]f a public university has to choose between competing narratives to resolve a case,” the Sixth Circuit wrote in Baum, “the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” Here, the federal district court observed that Smock “challenged the credibility of her accusers but was denied an opportunity to cross examine them,” further noting that “Plaintiff’s inability to challenge her accusers’ credibility was complete: their identities were undisclosed.”

When combined with other glaring procedural defects — the university “charg[ed] Plaintiff twice for the same conduct after she was acquitted the first time,” and Smock argued that she wasn’t provided with notice of the charges levied against her until the hearing was halfway over — the court found that Smock had sufficiently pled a violation of her right to due process.

FIRE will continue to monitor developments in the Smock case, including whether the professor plans to appeal the ruling.

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