Earlier this month, FIRE wrote to the University of Colorado Boulder, raising questions about its response to the extramural political speech of visiting professor John Eastman in the wake of his Jan. 6 speech, hours before the violence at the U.S. Capitol.
As we pointed out in our letter to CU, Eastman’s political expression outside of the classroom is protected by the First Amendment. As a public university — particularly one that has a demonstrable commitment to protecting the expressive rights of its constituents and earns FIRE’s highest, “green light” rating — CU may not retaliate against Eastman for his protected speech.
The university’s letter makes two general arguments.
First, it argues that the Benson Center’s decision not to renew Eastman’s appointment preceded the Jan. 6 speech and violence, making it impossible for the nonrenewal to be retaliatory. A public employer’s decision not to renew a contract can be made for any or no reason, but not for an unlawful reason, like retaliating against protected speech.
Second, the university cites a policy noting that “undergraduate courses having an enrollment of fewer than 20 students may be cancelled.” That is generally in line with prior reporting that CU had told a journalist that it “typically” requires that classes have fifteen students. Enforcing a neutral policy for the reasons behind that policy will not violate the First Amendment, provided it is enforced on a reasonably consistent basis and not arbitrarily used to retaliate against protected speech. A practice which affords administrators discretion to enforce it (such as, here, providing that courses “may” be cancelled or “typically” require a minimum enrollment) could be abused as a vehicle to retaliate against protected speech.
That brings us to the second letter, sent by Benson Center director Daniel Jacobson, which muddies the issues. That letter is difficult to square with the university’s larger points and, more importantly, Jacobson’s Jan. 10 email to Eastman.
Jacobson’s letter argues that he merely criticized Eastman. Criticism, of course, is not censorship: it’s more speech. Jacobson writes that the decisions about Eastman belonged to others, that “the Benson Center did not cancel his classes or relieve him of any duties,” and that he would “let those at CU who made these decisions speak for themselves.” Jacobson also adds information about the reappointment process, specifying that the “search committee met on December 23” and “voted unanimously not to recommend to the Chancellor” that Eastman be reappointed, conceding that “renewal is possible,” if rare.
That’s difficult to square with what Jacobson wrote to Eastman as public anger peaked. In his Jan. 10 email, Jacobson wrote: “I’ve now made some decisions,” and “I am changing your courses next term to independent studies,” a “less drastic measure” than that “demanded by many hostile to the Benson Center” and by supporters of the Center. Jacobson added that Eastman could conclude “from the Chancellor’s statement” condemning Eastman that “renewal of your appointment is out of the question.”
“FIRE isn’t alone in raising concerns about CU’s response to Eastman’s extramural expression.”
That email, cancelling Eastman’s classes and replacing them with independent studies, is in tension with Jacobson’s subsequent disclaimer that the decisions about Eastman were made by others at CU and that the Benson Center did not cancel his classes. It’s not impossible that the classes were, in fact, cancelled by other officials, but Jacobson’s email suggests that the center was involved in the decision. If so, Jacobson’s email evidences that the decision was driven by anger — whether from him, other administrators, or the general public — over Eastman’s speech.
Likewise, the fact that a recommendation was made on Dec. 23 places that recommendation before the Jan. 6 violence, but not before the broader controversy over Eastman’s views on the election. By that point, Eastman had long since drawn criticism due to his remarks about the election and the arguments made in his legal representation of Donald Trump as candidate for president. It may be that the decision not to recommend a renewal was unrelated to Eastman’s extramural political speech — which, again, is protected against retaliation under the First Amendment — but its timing only means that it wasn’t in response to the later speech.
FIRE isn’t alone in raising concerns about CU’s response to Eastman’s extramural expression. The Colorado Conference of the American Association of University Professors likewise weighed in on Feb. 9, urging CU to rescind its suspension of Eastman.
The Colorado AAUP rightly points out that the standards that are applied to Eastman will not be applied to him alone, but will imperil the rights of faculty members across the ideological spectrum. The conference argues:
Since influential stakeholders outside of the University—whether state legislators, alumni, donors, trustees, newspaper editorialists, radio shock jocks, or concerned members of the tax paying public—have often been more politically conservative than the typical professor (especially in the Humanities and Social Sciences), the historical targeting of professors on the political left is unlikely to change and may only be intensified by the intolerance of many in the CU Boulder community toward Professor Eastman for testing, from an unpopular reactionary perspective, the limits of permissible dissent.
In FIRE’s experience, it’s true that the pressures brought to bear on conservative faculty will also reveal pressure points that can be exploited by other interests, and vice versa. We have often seen — and often defended — faculty members of all political stripes whose speech offends others, on or off campus.
CU’s responses are a welcome effort to provide greater clarity to the decisions that led to Eastman’s sidelining. But while the responses shed some light on those decisions, they do not vindicate them, and we urge CU to fully and transparently evaluate these decisions in order to prevent a deterioration of the rights of all faculty.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If your rights are in jeopardy, get in touch with us: thefire.org/alarm.