The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recently, Lauren Robel, the provost of Indiana University criticized Professor Eric Rasmusen for, among other things, tweets "slurring women." Robel explains that IU, a state institution, could not remove Rasmusen. Termination, she suggests, would violate the First Amendment.
His latest posts slurring women were picked up by a person with a heavily followed Twitter account, and various officials at Indiana University have been inundated in the last few days with demands that he be fired. We cannot, nor would we, fire Professor Rasmusen for his posts as a private citizen, as vile and stupid as they are, because the First Amendment of the United States Constitution forbids us to do so. That is not a close call.
Instead, the University took other steps to discipline Rasmusen. Specifically, he will be removed from any required classes, and his classes will be graded blindly.
Therefore, the Kelley School is taking a number of steps to ensure that students not add the baggage of bigotry to their learning experience:
- No student will be forced to take a class from Professor Rasmusen. The Kelley School will provide alternatives to Professor Rasmusen's classes;
- Professor Rasmusen will use double-blind grading on assignments; if there are components of grading that cannot be subject to a double-blind procedure, the Kelley School will have another faculty member ensure that the grades are not subject to Professor Rasmusen's prejudices.
The University of Pennsylvania Law School issued a similar punishment to Professor Amy Wax. Dean Ted Ruger announced that Wax would no longer be able to teach required first-year classes. Students would have to register for Wax's upper-level electives.
Professors, even with tenure, are not guaranteed certain teaching loads. There is no requirement that a professor teach required courses, or all electives. These sorts of assignments are generally at the discretion of the administration. For these reasons, neither Rasmusen nor Wax could claim that the reassignments violated their teaching contracts–unless their contracts had specific clauses concerning course loads.
UPenn, a private institution, is not required to protect Wax's freedom of speech. Indiana University, a public institution, is bound by the First Amendment.
Robel suggests that this alternate punishment would comply with the First Amendment, while termination would not. She does not explain why. I suspect the answer sounds in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. (1968)
Garcetti v. Ceballos (2008) described the well-known Pickering balancing test this way:
"The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public."
Here, Rasmusen spoke as a citizen on a matter of public concern. In response, IU took adverse employment actions against him–reassignment of roles and heightened scrutiny. The University likely concluded that it had an "adequate justification" to punish Rasmusen. Why? Rasmusen would cause less of a disruption on campus, the thinking goes, if students were not required to take his class. In contrast, I suspect, the University determined that it lacked an "adequate justification" to fire Rasmusen for his social media postings.
I have doubts about this analysis. As a threshold matter, I question whether Pickering is the appropriate framework to consider the speech rights of tenured academics. But I'll assume that Pickering controls. Under this framework, I question whether the University's actions actually addresses the problem.
There are no allegations (as far as I can tell) that students in Rasmusen's classes complained about his behavior in the classroom. Furthermore, the fairness of Rasmusen's grading was never called into question. Rather, the students complained that Rasmusen's mere presence on campus creates something like a hostile environment. (I table for present purposes the conflicts between hostile work environment jurisprudence and the First Amendment.)
Removing Rasmusen from teaching required classes does not remove the hostile work environment. He can continue to post on social media, and will continue to be present on campus. The University is merely reducing the number of students who have to see Rasmusen in class. But there are no complaints about how he treats students in class.
In short, the selected punishment is not tailored to address the purported problem. Indeed, it does nothing to alleviate the hostile environment claims. A far more narrowly tailored approach exists: allow students to transfer out of Rasmusen's class. The proposed blanket policy is overly broad, and fails to remedy the problem the university identifies.
Update: In the comments, Hans Bader flagged Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992). A professor at the City University of New York (yes, that bastion of free speech, CUNY) published "denigrating comments concerning the intelligence and social characteristics of blacks." In response, CUNY "created an 'alternative' section of Philosophy 101 for those of Levin's students who might want to transfer out of his class." Both the District Court, and the Second Circuit, found that the creation of the "shadow" class violated the First Amendment. Here is an excerpt:
Formation of the alternative sections would not be unlawful if done to further a legitimate educational interest that outweighed the infringement on Professor Levin's First Amendment rights. See Carroll v. Blinken, 957 F.2d 991, 1001 (2d Cir.1992). However, although appellants contended below that they created the alternative sections because Professor Levin's expression of his theories outside the classroom harmed the students and the educational process within the classroom, the district court saw no evidence that this was a factually valid concern. Given the complete lack of evidence to support appellants' claim of a legitimate educational interest, we are unable to say that the district court erred.
Appellants contend that "[s]ince, by definition, alternative class sections presuppose that Professor Levin will continue to teach a class section, the creation of such sections cannot, as a matter of law, constitute an infringement of Professor Levin's First Amendment rights." We disagree. Appellants' encouragement of the continued erosion in the size of Professor Levin's class if he does not mend his extracurricular ways is the antithesis of freedom of expression.
Because the alternative sections continue to exist, that part of the district court's judgment permanently enjoining appellants "from creating or maintaining `shadow' or `parallel' sections of his classes predicated solely upon Professor Levin's protected expression of ideas,"was warranted and is affirmed. Contrary to appellants' contention, this order is not too ambiguous to be enforced. The constitutionality of a shadow class organized solely because of Professor Levin's extra-curricular statements was the precise issue that was litigated below. Appellants cannot be unaware of exactly what they are forbidden from doing. In view of the shadow classes' continued existence, there is nothing abstract about the steps appellants must take to eliminate their chilling effect on Professor Levin's extracurricular activities.
I welcome other thoughts on this case.