The professor's social media posts were first collected by Texas Scorecard, a conservative journalism site focused state politics. The site asserted that the social media posts were "antisemitic" and "do not correspond with the high standards of ethical conduct the university demands of its employees." The system chancellor and university president subsequently announced by Funez-Flores had been suspended with pay while an investigation is conducted. They denounced his posts as "hateful, antisemitic, and unacceptable."
The university's actions have been publicly reported here and here.
From the letter:
There can be no question that the social media posts of Professor Funez-Flores
are constitutionally protected expressions of private political opinions and cannot
themselves form the basis of university discipline. For the university to explicitly
leverage complaints about such social media posts into grounds for a fishing
expedition into the professor's professional conduct on campus is not only
inconsistent with the university's policies and constitutional commitments but
has a direct chilling effect on all members of the faculty who might wish to
engage in their own constitutionally protected expressive activities on
controversial topics. The publicly announced suspension and investigation is itself
a form of punishment, and the stated cause of this punishment is that the faculty
member engaged in protected political expression that some found "hateful,
antisemitic, and unacceptable."
The post Texas Tech Investigates Professor for Social Media Posts appeared first on Reason.com.
]]>This week's featured article is "Commander in Chains: 7 Scenarios If Trump Is Jailed and Wins the Election" by Keith E. Whittington.
This audio was generated using AI trained on the voice of Katherine Mangu-Ward.
Music credits: "Deep in Thought" by CTRL and "Sunsettling" by Man with Roses
The post <I>The Best of Reason</I>: Commander in Chains: 7 Scenarios If Trump Is Jailed and Wins the Election appeared first on Reason.com.
]]>In 1920, the perennial Socialist Party candidate Eugene V. Debs ran for president of the United States while serving time in a federal prison for delivering a seditious speech. He received nearly a million votes. His sentence was commuted by his erstwhile rival, the newly elected Republican Warren G. Harding, two days before Christmas in 1921.
No one expected Debs to actually win the White House. His best showing was in 1912, when he captured nearly 6 percent of the popular vote (but no presidential electors). So the nation has never had to seriously grapple with the possibility of someone winning the presidency while behind bars.
It might be time to think more seriously about that contingency. The Donald Trump years have brought many strange constitutional hypotheticals to life, and Trump promises more to come if he has a second term, recently demanding, for example, the courts must recognize "COMPLETE & TOTAL PRESIDENTIAL IMMUNITY" from all criminal acts that he might commit during a term of office. The 2024 elections promise more possibilities even before we get to serious third party candidacies or faithless electors.
Trump has not yet been outfitted with an orange jumpsuit, but stranger things have happened. The former president is now defending himself against four separate criminal indictments. The wheels of justice turn slowly, and these cases are unusually complicated. Moreover, Trump has an incentive to throw up as many procedural obstacles as possible with an expectation (an expectation that has not been legally tested) that all pending prosecutions will be put on hold if he were to return to the White House.
It is a decent bet that none of his criminal trials will reach a conclusion before November. But there is a genuine possibility that one or more of his trials could reach a verdict by Election Day. No doubt some of these prosecutions were brought with the hope of knocking Trump off the ballot, or at least damaging his candidacy, and some resemble more of a political Hail Mary than an ordinary criminal prosecution, but Trump faces a serious risk of conviction in at least some of them.
To briefly review, Trump is charged with election interference in New York, with a conspiracy to steal the 2020 election in Georgia, with mishandling national security documents and obstruction of justice in Florida, and with defrauding the federal government and obstructing a government proceeding in Washington, D.C. The first two of those cases were brought in state courts under state law by state prosecutors, and the other two were brought in federal courts under federal law by Department of Justice special counsel Jack Smith.
Of course, even if he were found guilty of a criminal charge in one or more of those cases, Trump could be expected to file appeals to those convictions. He would likely be released pending his appeals, which further reduces the likelihood that he would be serving a criminal sentence at the time of the election or even Inauguration Day.
There is nothing in the Constitution that prevents a current inmate of a state or federal penitentiary from running for or winning the presidency. Unsurprisingly, the constitutional framers did not anticipate the possibility that the American electorate might make such a choice, and so did not think to account for the possibility. Thus, we must now consider what would happen were Trump to be both criminally convicted and elected president.
If Trump is cooling his heels in the big house when Inauguration Day arrives, he could simply be sworn in as president in his prison cell. The presidential oath can be taken wherever the presidential designate happens to be at the time of his ascension to the office. Nothing says the president cannot be a convict, though the Department of Justice has insisted (when this was a live question under Nixon and Clinton) that a sitting president cannot be prosecuted. Joe Biden will stay out of prison—at least until he moves out of the White House.
Whether or not a president-elect is behind bars in the weeks after the election, what might we expect to happen?
The most likely scenario might be that Trump would receive a pardon, or at least a commutation of his sentence, before Inauguration Day. The prospect of a president being sworn into office while behind bars is such a national embarrassment and potential constitutional crisis that responsible government officials may decide it necessary to spare the nation that particular nightmare.
When President Gerald Ford issued a pardon to former President Richard Nixon in September 1974, he explained: "My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as president, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to ensure it."
As expected, the pardon damaged Ford's hopes of winning the presidency in his own right, but he believed the self-sacrifice was worth it to restore some normalcy after the Watergate scandal. The political costs to anyone pardoning Trump are also likely to be severe, but the national benefit of not inaugurating an inmate is arguably greater than that of turning the page on Nixon.
Trump's criminal liability is more complicated than was Nixon's. President Joe Biden could pardon Trump of his alleged federal crimes currently being prosecuted by Jack Smith. Biden's authority in regard to those crimes is plenary, but it expires at noon on Inauguration Day if he doesn't win in November. If Biden were to act at all, it would seem wise to do so shortly after the election rather than letting the situation draw out.
But Biden has no power to pardon Trump for his alleged state crimes. Georgia's Republican governor, Brian Kemp, does not have the authority to pardon Trump of any convictions that Fulton County District Attorney Fani T. Willis might win: The Georgia Constitution vests the pardon power in the State Board of Pardons and Paroles, which is composed of five members, all of whom were appointed by Republican governors. The board may not grant a pardon until a criminal sentence has been completed (or innocence has been proven), but it can commute a sentence when "such action would be in the best interests of society and the inmate." By contrast, New York Gov. Kathy Hochul, a Democrat, may grant reprieves, commutations, and pardons if Trump is convicted in the prosecution brought by Manhattan District Attorney Alvin Bragg.
Perhaps the least likely scenario is that Congress rises to the challenge of what to do about an individual elected to serve as president who is currently an inmate. The House could adopt articles of impeachment holding that the crimes for which Trump had been convicted in state or federal court also qualified as high crimes and misdemeanors. The Senate could then try Trump on those articles of impeachment, with a conviction resulting in Trump's removal from office. Since Republicans currently control the House, it seems unlikely they would take this step. Even if they did, conviction in the Senate would hardly be assured. There are serious constitutional challenges to this path, which would undoubtedly increase the difficulty of persuading a necessary number of legislators to follow along.
First, the federal charges arising from Trump's actions in Mar-a-Lago involve his conduct when he was out of office. Whether a federal officer can be impeached for out-of-office misbehavior is constitutionally unsettled, at best.
Second, the other three prosecutions all involve Trump's conduct while still serving as president, but the Senate has already demonstrated that it is skittish about the prospect of convicting a former officer for misconduct while in office.
Third, the House has never impeached a private individual before he assumed a federal office. A pre-inauguration impeachment would require that the House be willing to take that unprecedented step and overcome the constitutional objections that would necessarily arise.
Fourth, it is not at all clear that the Senate can preemptively bar an individual from assuming office. The Constitution specifies that a sitting officer "shall be removed" upon conviction, but there can be no removal if Trump has not yet been inaugurated. The Senate can follow a conviction by disqualifying an individual from holding future federal office. The Senate has worked on the assumption that it can disqualify someone convicted in an impeachment by a subsequent simple-majority vote. This approach might make disqualification easier to win in the punishment phase, but it would also likely make conviction more difficult.
Congress could minimize some of these constitutional and political concerns by waiting to impeach and convict until after Trump is inaugurated. The newly elected House of Representatives will be sworn in on January 3, 2025, more than two weeks before Inauguration Day. A newly elected Democratic majority could move swiftly ahead with an impeachment of President-elect Trump as soon as the 119th Congress is convened. (Impeachment would presumably be a nonstarter if Trump's electoral coattails bring a Republican House majority.) If it so chose, the Senate could hold off on taking a vote to convict in an impeachment trial until the moment after Trump takes his oath of office. Immediately upon conviction, Trump would be removed from his new office.
Alternatively, the House could wait until Trump was sworn in to vote on articles of impeachment. Delaying the proceedings might avoid some constitutional questions about impeaching individuals before they take office, but it would still not avoid the problem of impeaching an individual for actions that took place before he assumed his current office.
The 25th Amendment is being recognized more and more. Adopted in the wake of President John F. Kennedy's assassination, the amendment provides for the possibility of a still-living president unable to perform the duties of his office. Section 4 of the amendment has been much discussed of late, since it allows the Cabinet to involuntarily strip the president of his powers. There is essentially no chance that a Trump-appointed Cabinet would invoke Section 4 under these circumstances.
Section 3 has been the most used provision of the amendment, and it provides for the possibility that the president might voluntarily transmit to the leaders of Congress "his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."
Presidents have used Section 3 when, for example, they expect to be under anesthesia. President Ronald Reagan somewhat reluctantly invoked this provision before undergoing surgery in 1985. President George W. Bush invoked it twice while he underwent colonoscopies. In 1988, a distinguished commission recommended that presidents put plans in place for invoking Section 3 in a variety of medical situations that would render the president temporarily unable to perform his duties.
Neither the Constitution nor practice has clarified what might render a president "unable to discharge the powers and duties of his office." Nothing prevents a newly inaugurated Trump from determining that his imprisonment constitutes such an incapacity necessitating he designate his vice president as acting president. As acting president, the vice president could immediately issue a pardon of Trump for any federal crimes. Trump, thus relieved of his criminal punishment, could then inform Congress that he is resuming his presidential duties and fly the coop aboard Marine One within minutes of his swearing in.
Of course, the pardon of an acting president could not reach punishments for state crimes. If Trump finds himself in a state prison in Georgia or New York on Inauguration Day, the 25th Amendment gambit will not work. It is, however, the safest way for Trump to receive a valid presidential pardon after his inauguration.
Alternatively, a newly inaugurated Trump could dispense with the complications of the 25th Amendment and instead simply issue a pardon to himself for his federal crimes. This would be a legally risky strategy. There are good reasons for thinking that a self-pardon would not be constitutionally valid.
The director of the Federal Bureau of Prisons could presumably be persuaded to take the president's word for the validity of his self-pardon and see to his release. He would likely need a pliant attorney general and Office of Legal Counsel in place to provide legal cover, which would necessitate waiting until such officers could be appointed.
The validity of a self-pardon would undoubtedly be litigated. Trump would no doubt be able to wait out the litigation from the White House rather than from a prison cell. But with such a novel and difficult constitutional question, it is far from certain how the courts would resolve such a case. Ultimately, the question would have to be resolved by the Supreme Court.
If Trump had issued a self-pardon in his first term of office, it seems entirely plausible that the justices might have ruled it out of bounds. As a practical matter, though, Trump would back the Court into a difficult corner if he launched his second term of office with a self-pardon. In that situation, the justices would understand that declaring the pardon invalid would create an immediate constitutional crisis over whether the president would voluntarily return to prison. Faced with such high stakes, a majority of the justices might be willing to swallow their doubts and uphold Trump's self-pardon.
There is always the possibility that an incarcerated Trump could recognize that he should decline to serve as president for the good of the country. He could declare his intentions before Inauguration Day or be sworn in and then immediately resign. In either case, the duly elected vice president would become the president.
Such a prison-house conversion seems extremely unlikely.
As long as we're reaching, there are two more scenarios that are at least possible. They are even more far-fetched than the resignation, but this is Trump that we're talking about. Who can say that he might not prefer the unexpected?
We've all seen TV shows where an incarcerated mob boss keeps pulling the strings of his criminal organization from his jail cell. Trump is sometimes likened to a mob boss. Perhaps he would enjoy the drama and spectacle of being the leader of the free world from a customized and lavishly appointed wing of a penitentiary. State and federal officials might be willing to make such accommodations, even if they are not willing to simply let Trump go. If he can't go to the White House, then he can make White House operations come to him. He could meet with foreign dignitaries and congressional leaders in the prison yard. His chief of staff could set up shop in the cell next door to Trump's own. Donny from Queens could become The Kingpin.
These are all legalistic scenarios, even if the legal strategies are sometimes a stretch. But why be limited by mere legalities? Trump likes to toy with raw power.
If he were confined in a federal prison on Inauguration Day, President Trump could simply order any and all necessary executive officers to release him from his cage. If some of those officers were not sufficiently pliant to his demands, he could remove and replace them with more accommodating substitutes. Trump might not bother to supply those officers with even the legal fig leaf of a self-pardon. He could simply order them to act and promise to pardon them if there are any legal consequences for their escorting him out of prison.
Trump would be daring Congress or the courts to stop him. But maybe the lesson he took away from his first term of office was that he could win such a dare.
If he were confined to a state prison on Inauguration Day, President Trump could not just issue orders to his jailers. Things would have to be done the hard way. Trump might expect the U.S. military to rescue the commander in chief from his imprisonment and overawe or overwhelm any resistance it might encounter in doing so. The military would perhaps be unwilling to obey such orders, but that would not necessarily deter him from trying to find a sufficient pocket of loyalists in the federal ranks who would be willing to storm a state prison complex on the president's orders.
The events of January 6, 2021, demonstrated that at least some Trump supporters were willing to riot on his behalf. It is unclear whether he still commands that level of passion, but perhaps there are those who would be willing to take up arms if he were to call out to them. Rather than imagining themselves as American patriots circa 1776, they would instead have to imagine themselves as French revolutionaries circa 1789 as they stormed their American Bastille. Whether taking to the streets to prevent Trump from being taken into custody in the first place or mustering outside the prison gates in an attempt to break him out, they would have no need to wait until Inauguration Day to liberate their hero.
Trump once bragged, "I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump—I have the tough people, but they don't play it tough—until they go to a certain point, and then it would be very bad, very bad." Very, very bad indeed
We are on the path to nominating two presidential candidates well over the age of 75. From an actuarial perspective, this seems unwise.
If a newly inaugurated president were to suffer a major medical event in the moments after being sworn into office, the path forward would at least be clear: The 25th Amendment would kick into gear. If the president were to die, the vice president would become president and would select a new vice president to be confirmed by the Senate and the House.* If the president were to be left severely impaired but alive, the president could voluntarily and temporarily turn over his duties to the vice president. If he were unable to do so voluntarily, the vice president and a majority of the members of the Cabinet could vote to temporarily take the powers from him.
If a president-elect were to die before being sworn into office, the 20th Amendment specifies that the vice president–elect would be sworn in as president in his stead. If the president-elect were alive but unable to take the oath of office, the situation is not so clear, but most likely the vice president–elect would be sworn in, perhaps as acting president, and immediately begin to exercise the powers of the office.
Of course, the next American president will not truly be elected until the Electoral College casts its ballots on December 17, 2024. Once the electors have voted, their choice is locked in. If the nominal president-elect were to shuffle off this mortal coil before the electors meet, they could have a relatively free hand to choose someone else, but they most likely would be expected to choose the successful presidential running mate. (In 1872, one of the candidates did in fact die after Election Day and before the Electoral College met. He had lost the contest, so the question of who would get his votes was academic; the electors split their ballots among several figures, with three attempting to cast votes for the corpse.)
If a presidential candidate were to die shortly before the general election on November 5, 2024, his name would remain on the ballot and voters pulling that lever would in reality be choosing a slate of that candidate's presidential electors. If something were to happen to a candidate after the nominating convention but before ballots are printed and early voting begins? Well, then things get complicated, depending on each political party's own rules.
Essentially, if the Republican presidential nomination unexpectedly became vacant, the Republican National Committee would fill the slot using voting rules comparable to those of the national convention. If Biden were to vacate the nomination for any reason before early voting began, the Democratic National Committee would vote for a new presidential nominee.
*CORRECTION: The original version of this article mischaracterized the confirmation process under the 25th Amendment.
The post Commander in Chains: 7 Scenarios If Trump Is Jailed and Wins the Election appeared first on Reason.com.
]]>It has been awhile since I've had a piece in a print issue of Reason, and I'm particularly delighted that this time I get cool cover art. The article is now available digitally (but of course you should also subscribe to the print magazine, if you do not already do so).
From the article:
It is a decent bet that none of his criminal trials will reach a conclusion before November. But there is a genuine possibility that one or more of his trials could reach a verdict by Election Day. No doubt some of these prosecutions were brought with the hope of knocking Trump off the ballot, or at least damaging his candidacy, and some resemble more of a political Hail Mary than an ordinary criminal prosecution, but Trump faces a serious risk of conviction in at least some of them.
. . . .
There is nothing in the Constitution that prevents a current inmate of a state or federal penitentiary from running for or winning the presidency. Unsurprisingly, the constitutional framers did not anticipate the possibility that the American electorate might make such a choice, and so did not think to account for the possibility. Thus, we must now consider what would happen were Trump to be both criminally convicted and elected president.
The post What If Trump is Convicted? appeared first on Reason.com.
]]>Indiana Senate Bill 202 is discussed here. The state senator sponsoring the bill is a former aide to Mitch Daniels when Daniels served as the president of Purdue University. He hopes the bill would help change perceptions about American higher education among conservatives, but I'm skeptical that this bill would help much in changing those perceptions and I don't think it would make much progress in addressing the underlying concerns that conservatives have. The text of the bill can be found here.
The bill (ch. 2, sec. 1(b)(1)) directs the regents to develop a policy to block tenure of professors who are "unlikely to foster a culture of free inquiry." I think this is actually quite interesting and raises difficult questions. I'm not enthused about trying to do it through board policy, however. Could universities under this rule hire a professor who subscribed to various postmodern views about free speech or agreed with Marcuse on the need for "repressive tolerance"? Could universities hire professors with various views derived from critical race theory about the need to suppress certain ideas in the public sphere and in the universities specifically? Could universities hire conservative faculty who agree with Christopher Rufo and others about the need to weed out campus radicals and dispense with what they might characterize as luxury disciplines like women's studies? Perhaps not. There are classic problems regarding whether we must tolerate the intolerant, and universities do need to resist being captured by those who are hostile to their core mission of free inquiry and the neutral pursuit of the truth and the advancement of knowledge. But this kind of blanket ban is unlikely to have good effects.
Much more serious is sec. 1(b)(2) which would block tenure of those unlikely to expose students to works from "a variety of political or ideological frameworks."
Sec. 1. (a) This section applies to an institution that grants tenure or promotions to faculty members.
(b) Each board of trustees of an institution shall establish a policy that provides that a faculty member may not be granted tenure or a promotion by the institution if, based on past performance or other determination by the board of trustees, the faculty member is:
(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;
(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member's academic discipline; or
(3) likely, while performing teaching or mentoring duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction.
What counts as a "variety"? Why is necessary that individual professors provide that variety? I can teach a class on "originalism and its critics," but I cannot teach a class on "originalism?" Do I get "variety" in my originalism class if I teach Rappaport, Baude, Barnett, Balkin and Whittington? Presumably not, but why exactly and who decides?
Sec. 1(b)(3) prohibits subjecting students to political views in teaching unrelated to subject matter of class. On the whole, good. But hair trigger and severe penalties could be wind up hampering teaching.
Sec. 2(a) would incorporate the same into a system of 5-year post tenure reviews. Sec. 2(c) would protect "expressing dissent" or criticizing the administration or outside political activity from retaliation during the post-tenure review, which is interesting. Not sure this is the best place to secure that kind of protection, and might not be terribly effective at doing the job.
Unsurprisingly, sec. 4 would create a system for taking student complaints about faculty performance on this "intellectual diversity" requirement. Systems of surveillance of classroom speech by university administrators leveraging student complaints is a sure path to chilling free inquiry in the classroom and punishing professors who become controversial or an annoyance to the administration.
The bill has other features on diversity statements and institutional neutrality, which I think are mostly good but won't get into the details here. As written in the bill, the whole process could be entirely within the board of trustees—no faculty or administration involved at all. Likely not how it would play out in practice, but not how you would want to structure such a process.
I appreciate the instinct here, but this is not the way. It will encourage political witch hunts of faculty, and it invites inappropriate trustee intervention into teaching in unjustified ways. Sec. 1(b)(2) is a big problem and more difficulties flow from it. Intellectual diversity on campus is not going to be achieved through mandates to faculty about how they must teach their classes. Ultimately, free inquiry will depend on the composition and professional norms of the faculty.
The post Indiana Bill Would Mandate "Intellectual Diversity" in the Classroom appeared first on Reason.com.
]]>A useful maxim to guide decision makers is "if an academic institution is not required to adopt a position in order to fulfill its mission of intellectual freedom or operational capacity, it is required not to adopt a position." (See, e.g., Princeton Principles for a Campus Culture of Free Inquiry.)
For a neutrality principle to work, it must be publicly announced and adhered to on a consistent and faithful basis. Making an exception inexorably leads to pressure to make others and to allegations of bias.
Critically, institutional neutrality applies only to leaders and units of the institution. This is true not only for the central administration, but also for the units of the university, such as schools, departments, centers, and programs. It does not apply to faculty members and students (i.e., the "critics"), either individually or as members of voluntary, non-institutional associations.
I recently discussed institutional neutrality for a webinar sponsored by Heterodox Academy, which can be found here. My most recent written piece on the topic was in the Chronicle of Higher Education and can be found here.
The post A Call for Institutional Neutrality appeared first on Reason.com.
]]>It is a comprehensive opinion, and I think a correct one. Given my own scholarly interests, I was particularly anxious about how the court might handle the claim that an officer who has been acquitted in an impeachment trial cannot be criminally prosecuted, but I think the panel handled that issue correctly.
Interestingly, the panel went with the distinction in Marbury v. Madison between discretionary and ministerial acts and concludes that discretionary acts are largely outside the purview of the courts. But acts that violate a constitutionally valid criminal law also violate the president's legal duties and thus cannot be understood to be purely discretionary acts within the constitutional and legal authority of the president to make.
The cases following Marbury confirm that we may review the President's actions when he is bound by law, including by federal criminal statutes. In Little v. Barreme, the Supreme Court concluded that the President's order to a subordinate officer to seize American ships traveling to or from French ports violated the Nonintercourse Act precisely because the Congress had acted to constrain the Executive's discretion. 6 U.S. (2 Cranch) 170, 177–79 (1804). Chief Justice Marshall observed that the President may have had the discretionary authority to order the seizure absent legislation but had no discretion to violate the Act. Id. at 177–78. Similarly, in Kendall v. United States ex rel. Stokes, the Supreme Court reviewed the official acts of the postmaster general, the President's subordinate officer who derived his authority from the Executive Branch, because the civil case involved the violation of a statutory requirement. 37 U.S. 524, 612–13 (1838). To find a statutory violation unreviewable, the Court held, "would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice." Id. at 613.
Likewise, the court thinks the weight of functional considerations lean toward no blanket immunity in this context.
The federal prosecution of a former President fits the case "[w]hen judicial action is needed to serve broad public interests" in order to "vindicate the public interest in an ongoing criminal prosecution." Fitzgerald, 457 U.S. at 754. The risks of chilling Presidential action or permitting meritless, harassing prosecutions are unlikely, unsupported by history and "too remote and shadowy to shape the course of justice." See Clark, 289 U.S. at 16. We therefore conclude that functional policy considerations rooted in the structure of our government do not immunize former Presidents from federal criminal prosecution.
Particularly true that president cannot be understood to have blanket immunity for trying to steal an election.
We cannot accept former President Trump's claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.
Court does not find Trump's argument of no prosecution if acquitted in an impeachment trial consistent with the text and purpose of the relevant constitutional clauses.
In drafting the Impeachment Judgment Clause, to the extent that the Framers contemplated whether impeachment would have a preclusive effect on future criminal charges, the available evidence suggests that their intent was to ensure that a subsequent prosecution would not be barred.
Importantly, court emphasizes that the impeachment process is a political process involving political charges and political punishments, and as such it does not trigger double jeopardy principles regarding criminal prosecutions in which criminal punishments are at stake.
In light of the very different procedures and purposes associated with impeachment proceedings as compared to criminal proceedings, former President Trump's reliance on the Double Jeopardy Clause is misplaced. Impeachment is not a criminal process and cannot result in criminal punishment.
We'll see what the Supreme Court does with this.
The post Former Presidents Do Not Enjoy Blanket Criminal Immunity appeared first on Reason.com.
]]>From the abstract:
Since the early twentieth century, academics have urged universities to recognize robust protections for the freedom of professors to speak in public on matters of political, social, and economic controversy—so-called "extramural speech." The U.S. Supreme Court eventually recognized First Amendment protections for government employees, including state university professors, who express themselves about matters of public concern. The Court has indicated that the state should be especially solicitous of the speech of government employees in an academic context, but it has not adequately elaborated on the nature of those protections and how courts and government employers should assess the state's interests relative to the extramural speech of professors employed at public universities.
This Article describes the state of the existing principles and doctrine surrounding extramural speech and examines the factors that private and public universities can reasonably take into consideration when responding to such speech—and what rationales for suppressing such speech or sanctioning faculty for engaging in such speech are inappropriate. Controversies surrounding the public speech of university faculty have only become more common and more intense in recent years, and both public and private universities need to be more self-conscious about the risk of stifling the intellectual environment of universities and chilling unpopular speech when responding to such controversies. If First Amendment values are particularly weighty in the context of the marketplace of ideas on university campuses, then many of the rationales for disciplining government employees for controversial speech that may make sense in some governmental workplaces should be rejected if applied in the university context.
The article focuses on the balancing test in the Supreme Court's Pickering doctrine for government employee speech, and how that balancing test should be conducted in the specific context of universities and faculty speech. Although the constitutional test is specific to state universities, it works well for thinking through protections for free expression at most private universities in the United States as well.
From the conclusion:
There are very few occasions when university officials can properly sanction a university professor for his or her extramural speech. . . . Professors may say things in public that are mistaken, offensive, or even repugnant and vile—or they may simply say things that threaten the interests of powerful groups and individuals or run contrary to prevailing sentiment—but general principles of free speech protect their right to say such things and university employers should refrain from penalizing them for such speech. When universities claim that firing professors who say controversial things is justified, courts should stand ready to closely interrogate such claims. When the extramural speech of professors is weighed in a Pickering balance, the university's legitimate interest should not include an interest in suppressing speech because it is unpopular or uncivil or gives rise to the commotions that unpopular or uncivil speech can trigger.
You can read the whole thing here.
The post What Can Professors Say in Public? appeared first on Reason.com.
]]>Should departments be issuing such statements, and who should be understood to control the content of a departmental website or social media account? In an essay in the Chronicle of Higher Education, I argue that such political statements have no place in academia. They invite a further erosion of public support for higher education, and they threaten the foundations of individual academic freedom.
Here's a taste:
Another set of concerns involves the direct pressure put on individual scholars by the proliferation of institutional political statements. Individual members of the faculty are free to engage in individual political expression or to associate with others to express themselves collectively, and universities should be diligent in protecting the freedom of individual professors to do so. But individual members of the faculty also have the freedom to remain silent on matters of controversy and to choose their own time and manner of expressing their political views. They should not, as a condition of employment at a university, be dragooned into the political activities of others. Departmental statements make that impossible. Dissenting individuals are forced either to hold their tongue and allow statements to be issued in their name or to wade into a political controversy when they would prefer not to do so. Faculty members can always speak in their own name. That is an exercise of free expression. To attempt to speak in the name of others is rather an infringement on free expression.
For departments qua departments to issue political statements is to assert that those sentiments are not just personal, but professional. As such, they may also become professionally relevant to evaluation of current and future members of the faculty. It is an important protection of the academic freedom of individuals that institutions not take the personal political views and activities of professors into account when making decisions regarding hiring and promotion. It is possible to construct a firewall protecting professors from being punished for their political opinions by distinguishing such personal activities from professional activities. If, however, a department as such has specific political views, then the political views of prospective members of the faculty are suddenly professionally relevant and cannot be regarded as off-limits. Junior faculty would justly worry that their professional future will be damaged if they do not go along with the political activities of their senior colleagues. Dissenting members of the faculty will justly believe that they are made outsiders to their own department as a consequence of their political beliefs.
The post Against Political Statements by Academic Departments appeared first on Reason.com.
]]>A recording of that event is now available for viewing on C-Span here.
From the C-Span description.
Scholars from Harvard, Princeton, and New York Law School discussed campus speech amid the Israel-Hamas war at an event hosted by Harvard University. Topics included fostering a culture of mutual respect for disagreeing viewpoints, distinguishing between protected hate speech and harassment and bullying, protests on college campuses, and whether universities should take a stance on controversial issues. Prior to this event, Harvard University President Claudine Gay and other university presidents received backlash and calls for resignation due to their congressional testimony on antisemitism on college campuses.
The post Harvard Panel on Campus Free Speech appeared first on Reason.com.
]]>From the piece:
The presidents' bad hand in the hearings did not stem from a lack of hate speech regulations. Rather, it was due to the terrible track record that American universities have regarding principled free speech positions on campus. Harvard ranked dead last in the Foundation for Individual Rights and Expression's (FIRE) annual campus free speech rankings, and Penn was just one slot above them. Universities all too often have a double standard when it comes to protecting free speech. It is all too apparent that, regardless of their written policies, many universities would not tolerate hateful speech directed toward other, more favored groups on campus. But they have faced more conflicting pressures when it comes to antisemitic speech and the October 7 attack on Israeli civilians. While legitimate time, place, and manner regulations on campus speech are strictly enforced against some, violations are frequently ignored when university officials think that the violators have their hearts in the right place.
As a result, appeals to principles of robust academic freedom and free speech principles from Gay, Kornbluth, and Magill ring hollow. If universities uphold double standards, then there is a strong incentive to make sure that your constituency is on the right side of the double standard. The political scientist Ted Lowi famously wrote of the "end of liberalism," in which classical commitments to neutral principles in constitutional governance had been replaced in the 20th century with an "interest-group liberalism" that simply implemented the results of bargains among competing political interests. In such a world, your interests would be unprotected if you did not have a seat at the table and sufficiently strong leverage in the negotiations.
To a worrisome degree, universities have embraced an interest-group liberalism model of governing. The diversity, equity, and inclusion apparatus is both an outcome and a reflection of that kind of internal spoils system. Jewish students and faculty are now insisting that their interests get a better piece of the pie, and universities know how to respond to such demands. Don't hate the player; hate the game.
Read the whole thing here. Behind a paywall, but if you don't subscribe to The Dispatch, you should!
The post University Presidential Testimony Fallout appeared first on Reason.com.
]]>In my new piece in the Chronicle of Higher Education, I sketch out the choice before us.
One path is suggested by Stanford University's provost, Jenny S. Martinez. After student protesters at Stanford Law School shouted down a federal judge last spring, Martinez, who was then dean of the law school, issued a striking public letter rebuking the protesters, reaffirming the school's commitment to free expression and open discourse, and firmly rejecting the view that a commitment to diversity necessitated suppressing some speech or speakers. As provost, Martinez has similarly emphasized that colleges must tolerate even extreme and hateful speech, while taking action against actual harassment or threats. Moreover, she and Stanford's president announced that they believe the university should "generally refrain from taking institutional positions on complex political or global matters that extend beyond our immediate purview." Institutional neutrality would best secure an environment in which diverse scholars could develop and express their own individual ideas.
A quite different path is suggested by the University of Pennsylvania's president, M. Elizabeth Magill. Magill has come under particularly intense pressure to address perceived antisemitism on her campus. In her testimony to the congressional committee, she emphasized that "Penn's approach to protest is guided by the U.S. Constitution" and gives "broad protection to free expression — even expression that is offensive." But when confronted with questions about whether calls for genocide violated university policy, Magill and her fellow presidents stumbled in their replies. As a result, Magill released a short video. There she repeated that "Penn's policies have been guided by the Constitution," but she added that "in today's world … these policies need to be clarified and evaluated." She promised a "serious and careful look at our policies" with an eye to ensuring a "safe, secure, and supportive environment." She will, she promised, "get this right."
Magill's implication is clear: The university's policies need to be revised so that they do not so closely follow the Constitution; they should instead prioritize students' sense of safety. Protections for free expression and perhaps even academic freedom might well be pared back in the process.
The post Universities Must Make a Choice appeared first on Reason.com.
]]>From the letter:
Even if the words falsely attributed to Professor Strauss in the Trojans for Palestine video had in fact been articulated by him in the context of a public political rally, they are fully within the bounds of protected First Amendment speech and within the scope of protected speech under the university's policies. Private speech on controversial social and political topics can sometimes be heated, ill-tempered, ill-considered, and broadly offensive. We do not hold such speech to the standards that we would properly expect from speech in the classroom or from scholarly research. The video in question does not portray Professor Strauss as issuing a genuine threat to any individual nor as engaging in any harassing conduct. Of course, it is contested whether Professor Strauss even issued those words, and the words he and other witnesses assert that he actually said are even further from the line that would separate protected from unprotected speech. There is no proper investigation to be conducted as to whether Professor Strauss behaved contrary to university policy in a manner that might merit discipline. To the extent that any investigation might be justified to establish the facts of what happened at the rally, it could be concluded extremely quickly and would not justify an administrative leave.
The full letter can be found here.
Local news coverage here.
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]]>In June, the AFA sent a public letter to the Mayo Clinic complaining about its treatment of Dr. Joyner. The Mayo Clinic adopted its current free expression and academic freedom policy in 2020, which promised that its researchers would be free to discuss their scholarly conclusions and opinions without fear of censorship or retaliation. And yet,
Dr. Joyner, a distinguished professor and faculty member with thirty-five years of experience, is recognized as a leading expert on topics of scientific and public concern. Over the years, in his personal capacity, he has participated in numerous interviews with the media related to his areas of professional expertise. Mayo Clinic's admonishments, written warnings, and disciplinary actions against Dr. Joyner—which include a one-week unpaid suspension, denial of any salary increase at his next contract renewal, and threat of termination of employment for failure to comply with Communications Department preclearance and oversight of media interviews—are a direct attack on his academic freedom. Furthermore, the restrictions on Dr. Joyner's ability to speak publicly on controversial and important topics is a serious restraint on his speech.
The Mayo Clinic refused to change course, and so Dr. Joyner has been forced to seek a remedy in the courts. From the AFA press release,
"As the complaint clearly states, academic freedom is a key guarantor of scientific integrity," said Lucas Morel, chair of the AFA's academic committee. "We believe this lawsuit will set an important precedent about the right of other scientists, doctors, and academics to speak publicly and freely on topics relevant to their expertise. Americans should expect expert commentary to reflect the scientific evidence, not the financial or political interests of the institution. We hope Dr. Joyner is awarded the damages owed to him for violation of his rights."
The full complaint can be found here.
Previous coverage of the controversy by CNN can be found here.
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]]>Judges are reassessing as well. Judge James Ho became the face of a threatened conservative judicial boycott of hiring Yale law students as clerks after some high-profile assaults on conservative student speech. Yale Law School took steps to try to improve the situation.
Judges are looking at student actions in the wake of October 7th and drawing a line in the sand for those who would want to clerk for them. Judge Matthew Solomson said,
To me, it's a simple proposition that just like no judge would hire anyone who endorsed the KKK or the Nazis, anyone who endorses or approves or otherwise gives comfort to — in writing — Hamas, should not be hired.
Sarah Isgur reports on the Advisory Opinions podcast that Judge Lee Rudofsky has written to his own future clerks asking them to confirm that they have not condoned the October 7th massacre or engaged in acts of antisemitism or Islamophobia. He, quite appropriately, added that he had no problem with his future clerks holding or expressing a wide range of views about the Israeli-Palestinian situation and the current war, so long as they stopped short celebrating or advocating the targeting of civilians for abduction, torture, or death.
I would expect that other judges are contemplating similar steps in light of what we have seen over the past month.
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]]>I've been extremely fortunate to have been at Princeton, and I leave with nothing but good feelings and best wishes for my students and colleagues there. It is time to take on some new challenges, however, and I very much look forward to joining a new set of students and colleagues at Yale.
Yale Law School has an unparalleled role in shaping the legal academia and influencing policymakers, and I'm looking forward to finding my own niche there.
I'm not unmindful of the significance of this move at the present moment. YLS has, of course, had its own recent controversies regarding free speech and ideological diversity. Yale has notoriously been lacking in right-of-center public law faculty for decades. Co-blogger Josh Blackman says YLS is a failed academic institution. I hope not! But the lack of political diversity on elite law school faculties is unhealthy, and I'm glad to be able to do my small part to mix things up. Law students and law schools need to be able to understand and engage productively with a conservative federal judiciary. With the very meaning of the conservatism in the United States up for grabs, I look forward to lending what perspective and expertise I can to public debates.
I'm grateful to Yale Law School Dean Heather Gerken for her efforts in making this happen, and to the faculty at YLS for their welcome. The next couple of decades should be interesting. More to come in due course.
The post My Move to Yale Law School appeared first on Reason.com.
]]>Over the summer, Republicans in Wisconsin began to talk about impeaching the newly elected justice before she could sit on a case involving the current legislative maps. Republicans are demanding that the justice recuse herself from the apportionment case given her campaign statements about the existing maps and her receipt of large campaign donations from the Democratic Party. A failure to recuse would constitute the impeachable offense in the state proceedings.
Republicans have a large majority in the Assembly (the lower chamber), and just enough members in the state Senate to convict, if the GOP senators all stick together. The more interesting possibility is that the Assembly might impeach the justice and the Senate might delay a trial—or fail to hold a trial at all. When Nancy Pelosi slow-walked the impeachment of President Donald Trump, there were no legal consequences. Not so in Wisconsin. In Wisconsin, like in many states, an impeached judge is immediately suspended from exercising the power of the office until the conclusion of an impeachment trial. The Republicans in the Wisconsin Assembly could prevent Protasiewicz from ruling on cases without ever testing whether Republicans could hold together through a senate trial and without forcing Senate Republicans to cast what is likely to be a politically difficult vote.
An impeachment purely for the sake of suspension would be an extreme case of constitutional hardball, and if Republicans in Wisconsin can get away with it partisans in other states are surely likely to think seriously about trying it themselves.
A Democratic attorney has filed suit in state court seeking an injunction against any possible impeachment.
Meanwhile, Assembly Speaker Robin Vos seems to be trying to slow down the impeachment train. He announced that he is appointing a panel of three former supreme court justices to write a report on the scope of the legislature's impeachment power. An extraordinary move that if nothing else puts off a decision on the impeachment question for the "next few weeks."
Extraordinary developments that will bear close watching.
The post Slowing Down the Impeachment Drive in Wisconsin appeared first on Reason.com.
]]>The semester has now begun, and to my knowledge the class is being taught with The Right to Maim still on the syllabus. The university administration had refrained from issuing a public statement on the controversy, until now.
President Chris Eisgruber included a brief reaffirmation of the importance of academic freedom in his address to the faculty at the start of the new academic year. That statement was cast in general terms, and it can be found here.
Democratic Congressman Josh Gottheimer has now released his own public letter to the university "calling on them to take action in response to their universities' inclusion of antisemitic, anti-Israel, and hate-filled classroom curriculum and upcoming guest speakers," in the words of the Representative's press release. The letter itself is a bit more nuanced and refrains from directly demanding that the university pull the book out of the classroom. The letter can be found here.
President Eisgruber has now released a public letter in response to Representative Gottheimer. In it, he observes
Princeton's commitments to inclusivity coexist with equally vigorous commitments to free speech and academic freedom. Though people today sometimes seek to drive a wedge between free speech and equality, they are both fundamental to America's constitutional tradition and they are essential to the aims of a great university. We can achieve our mission, as a polity or a university, only if people of all backgrounds feel welcome, respected, and free to express their opinions. At Princeton, and at other great colleges and universities, we promote inclusivity and belonging in many ways, but never by censoring speech, syllabi, or courses.
The full letter can be found here. It is good to see the university standing up to the censors in this matter.
The post More on Controversial Books at Princeton appeared first on Reason.com.
]]>In recent days it has come to the attention of the national media in both the United States and Israel that an assistant professor in the Department of Near Eastern Studies at Princeton University is assigning a controversial book to students who will take a seminar at the university in the upcoming fall semester. The book in question is The Right to Maim by Rutgers University professor Jasbir Puar. The book is published by Duke University Press and is billed as an application of "Foucauldian biopolitics" to the Israeli-Palestinian conflict.
Critics see it a bit differently. Ronald Lauder of the World Jewish Congress called on Princeton to "cancel the course in question immediately" and "fire its professor" for fomenting "hate speech." International Legal Forum CEO Arsen Ostrovsky characterized the book propagating "a modern-day antisemitic blood libel" and should be banned from the class in order to avoid creating "hostile and discriminatory environments for students, such as one that will inevitably be created as a result of the use such antisemitic and inflammatory material." The university has yet to comment.
Unfortunately, the demand that students be protected from problematic books is an age-old one and is once again a live one in the United States. Such efforts to restrict access to disturbing books has most recently focused on primary and secondary education, where the state has an unusually strong hand in setting the approved curriculum and schools must grapple with how and when difficult subjects should be introduced to minor students. It should not be surprising, however, that such demands might make their way into universities as well.
Activists on both the left and the right have insisted that universities should be made into safe spaces where students can be sheltered from disturbing and offensive speakers, materials, and ideas. Professor Stephen Kershnar is still banned from setting foot on the SUNY-Fredonia campus because he talked about his book, Pedophilia and Adult Child Sex: A Philosophical Analysis, on a podcast. It is not hard to imagine a university barring professors from assigning that book in their classes. With universities trying to stay in the good graces of conservative state legislatures, some university presidents might be tempted to prohibit their faculties from assigning Kimberle Crenshaw or Ibram Kendi to their students. With the controversy at Hamline University and the attack on Salman Rushdie fresh in mind, might a university president think it a safer course to ban professors from assigning books visually depicting or satirizing the Prophet Muhammad? If Charles Murray can be shouted down, can a professor assign students to read The Bell Curve? The controversy surrounding this seminar at Princeton might well be a sign of things to come.
We have had this fight before. Some of the earliest fights over academic freedom in American universities involved university officials prohibiting professors from assigning controversial books in their classes. In 1880, the New York Times breathlessly covered the battle between pioneering sociologist William Graham Sumner and Yale University President Noah Porter over a book assignment. Sumner had assigned Herbert Spencer's The Study of Sociology in his class. Sumner and Spencer were leading "Social Darwinists" in the late nineteenth century, and Porter had strong views about the "so-called science" of sociology. Sumner threatened to resign over Porter's "interference with my work," and they eventually found a compromise. In the early twentieth century as state legislatures debated whether evolution could be taught in public schools, a dean at the University of Tennessee rescinded a professor's book order and fired the professor for applying the theory of evolution to humans.
In response to such controversies, a fundamental demand of the emerging movement in favor of academic freedom in the United States was the insistence that university officials not interfere with how professors taught their classes. The 1940 Statement of Principles on Academic Freedom and Tenure endorsed by the American Association of University Professors and the Association of American Colleges laid out three core principles of academic freedom. One was that "teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject." That commitment has found its way into university policies across the country. We may well soon see whether the courts are also willing to recognize this as a First Amendment principle.
As a result, the right of university professors to assign their preferred books to a class without interference from university administrators is one of the fundamental features of academic freedom in the United States. The critical consideration from the university's perspective is not whether an assigned book is controversial, hateful, or wrong, but whether it is germane to the class being taught. If a book is relevant to the subject matter, it is up to the professional judgment of the faculty member as to whether it should be used.
The professor might be wise or unwise in making such an assignment, and a professor might reasonably come in for public criticism for how they design or run their classes. But criticism must stop short of interference. If a work is relevant to the subject matter of the class, it does not matter whether others regard it as offensive or wrong. Students arriving at a university should expect that they will sometimes encounter readings and ideas that they regard as contemptible or erroneous.
The outrage surrounding the Princeton seminar is also entirely premature. Professors assign readings with which they disagree all the time. It is a routine feature of university classes to criticize and analyze controversial materials and not simply to absorb them uncritically. A professor may be justly criticized for behaving incompetently or unprofessionally if that professor attempts to present roundly rejected ideas as if they were widely accepted or tries to insulate controversial ideas from criticism. Professors should not attempt to indoctrinate or misinform students. But the mere fact that a professor assigns a controversial or mistaken text for undergraduate students to read is no reason to think that the professor is engaged in unprofessional misconduct.
It would be outrageous for a university president to unilaterally prohibit the assignment of any given book in a university class. Universities address bad ideas through discussion and debate, not through gag orders.
The post The Freedom to Assign Controversial Books appeared first on Reason.com.
]]>I have now posted an article-length paper examining the competing arguments in Porter and contending that neither the majority nor the dissent approached the question in the right way. I offer an alternative approach to extending the Supreme Court's doctrine on government employee speech to the particular context of intramural speech by state university professors. From the abstract:
Since the early twentieth century, advocates of academic freedom in the United States have urged universities to tolerate internal dissent and refrain from sanctioning professors for their comments on university affairs. Despite this long history of advocacy, the status of intramural speech within traditional theories and policies regarding academic freedom and within First Amendment doctrine relating to academic freedom remains uncertain at best. Controversies regarding intramural speech are recurring, but there is no clear conceptual framework for how those controversies should be resolved. University officials and judges are often inclined to give little weight to academic freedom interests associated with intramural speech.
This article offers a theoretical and doctrinal approach to integrating intramural speech within the broader logic of academic freedom. Deploying government employee speech doctrine as a useful paradigm for thinking about intramural speech generally, the article argues intramural speech should be viewed as a generally protected form of speech by university professors. The relative weight of the faculty's interest in such speech and of the university's interest in regulating such speech varies, however, depending on how closely associated the speech in question is to academic functions of the university. The weight that should be given to intramural speech is at its zenith when professors engage in campus speech directly related to scholarly and educational enterprise, but it is at its nadir when professors comment on university affairs that are not distinctive to or closely related to the academic mission of the university.
You can read the whole thing here.
The post How Does Intramural Speech Fit Within the First Amendment? appeared first on Reason.com.
]]>Of particular interest is their new report on policy recommendations for universities. The key points can be found here. The full report is here.
Although motivated by the specific situation at Cornell, the policy recommendations are not specific to that university. The report makes for useful reading and lays out a valuable agenda for faculty across the country.
The post Cornell Free Speech Alliance Launches appeared first on Reason.com.
]]>Don Downs, the Alexander Meiklejohn Professor of Political Science Emeritus at the University of Wisconsin at Madison and a long-time advocate of academic freedom and campus free speech, did the heavy lifting of drafting a statement and working to build a consensus. I was happy to join the final statement.
From the statement:
The American university is a historic achievement for many reasons, not least of which is that it provides a haven for free inquiry and the pursuit of truth. Its unique culture has made it a world leader in advancing the frontiers of practical and theoretical knowledge. The habits of mind required for this advancement of knowledge sustain our republic by educating citizens in the liberality and intellectual independence necessary to participate in self-government in a pluralistic society.
To do their work well, universities need a protected sphere of operation in which free speech and academic freedom flourish. Scholarship and teaching cannot achieve their full potential when constrained—externally or internally—by political, ideological, or economic agendas that impede or displace the disinterested process of pursuing truth and advancing knowledge.
You can read the whole thing here.
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]]>A group of parents are suing the state over the learning losses that that the state's pandemic response imposed on children. Plaintiff attorneys recruited expert witnesses from Stanford University to support their case. The California education department claims that the researchers signed an agreement to not testify against the state as a condition of accessing the state's data on k-12 schools during the pandemic. The prohibition, the state argues, extends to any testimony against the state, even when that testimony does not rely on the state's own data.
From the state's letter to one of the researchers:
This letter is to remind you of your obligations as the CDE's authorized representative performing research for and on behalf of the CDE. As CDE's authorized representative, in both paragraph 16 of the Agreement and paragraph 6 of the confidentiality provisions in Exhibit D, you agreed that you would not "testify, advise or consult" for any party other than the CDE or the State Board of Education. This prohibits any work for Plaintiffs in Cayla J.
The ACLU is now involved, arguing that any such provision in the data access agreement would amount to an unconstitutional condition.
From the ACLU letter to the California Department of Education:
The contract condition at issue is viewpoint discriminatory. LPI's contract with CDE specifies that, for the duration of the agreement, "LPI's employees, executives, and other representatives shall not voluntarily testify for, consult with, or advise a party in conjunction with any mediation, arbitration, litigation, or other similar proceeding" where the LPI-associated individual "knows that the party is adverse to CDE, the State Superintendent of Public Instruction or the State Board of Education." There is no similar restriction on an LPI-associated individual's ability to testify, advise, or consult in a proceeding on behalf of CDE. Indeed, the contract clearly permits testifying as an expert for the CDE or other state agencies. CDE may only terminate the contract and impose penalties if a contractor testifies for or advises parties who hold interests adverse to it or other listed state educational entities.
Therefore, the provisions keep out of court, mediation, arbitration, or other similar proceedings viewpoints and opinions that might harm CDE's and other state government entities' interests in litigation, while allowing viewpoints and opinions that would serve the government's interests and positions. Moreover, by preventing individuals associated with LPI from even advising or consulting with a party adverse to the government in the listed circumstances, these provisions hamper the ability of the adverse party to assess information, data, or research on its own. Therefore, the provisions do what the Court in R.A.V. expressly prohibited by "proscribing only [speech] critical of the government." R.A.V., supra, 505 U.S. at 384.1
If the government were to try to institute this restriction on its own, outside of the context of a contract, it would be clear unconstitutional viewpoint discrimination. It may not achieve the same result by conditioning a benefit on a provision that has the effect of preventing experts from testifying against the state. See Perry, 408 U.S. at 597.
News coverage of the case here and here.
The post Expert Witness Redux in California appeared first on Reason.com.
]]>The story was first broken by the Texas Tribune. Alonzo, a professor of pharmacy practice, was serving as a guest lecturer in a medical school class at the University of Texas discussing the opioid crisis. During the class, she apparently made some critical remarks regarding Patrick's resistance to Alonzo's favored policy responses. A student in the class complained to her mother, the Texas land commissioner, who in turn informed Patrick's office. Patrick's office pointed Texas A&M University System Chancellor John Sharp at Alonzo. Sharp immediately had her suspended and launched an investigation into potentially firing her. Meanwhile, both the University of Texas and Texas A&M sent internal emails cautioning professors against saying critical things about Texas politicians.
From the letter:
The American Association of University Professors has long emphasized that the freedom of classroom teaching includes the right of professors to introduce into the classroom controversial but relevant materials. The AAUP's 2007 report on freedom in the classroom emphasized that "ideas that are germane to a subject under discussion in a classroom cannot be censored because a student with particular religious or political beliefs might be offended." It would be "inimical to the free and vigorous exchange of ideas necessary for teaching and learning in higher education" if professors could be sanctioned because of the reaction of one or more students to the words and ideas being discussed. State university professors should be free to express criticism of state government officials and public policy when such matters are relevant to topics under discussion in a class.
Alonzo has since been reinstated, but the Faculty Senate at Texas A&M is demanding answers on what procedures were followed in this instance. This is the second black eye for Texas A&M arising out of political interventions in academic affairs.
The behavior of both Texas A&M and the University of Texas in this incident shows the fear being created in some state universities as a result of political threats directed against those universities. The climate for open inquiry in such states is deteriorating.
Again from the letter:
The Academic Freedom Alliance stands firmly behind Professor Alonzo in this matter. The university needs to take explicit steps to reaffirm its commitment to academic freedom and to reassure the faculty that they will not be threatened with termination if they say critical things about state policy when the discussion of such policies is entirely germane to the courses being taught.
The post Academic Freedom Alliance Letter to Texas A&M appeared first on Reason.com.
]]>From the abstract:
Academic freedom enjoys an uncertain status in American constitutional law under the First Amendment. It is particularly unclear how the First Amendment applies when it comes to professorial speech in the classroom. This lack of clarity has grave implications in the current political environment. There is now an unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms, and the constitutionality of such measures will soon need to be resolved.
This Article sets out a new argument for protecting from legislative interference how faculty at state universities teach their courses. Building on existing First Amendment jurisprudence regarding academic freedom and government employee speech, the article lays out the constitutional infirmities with anti-Critical Race Theory proposals and clarifies the scope of an individual constitutional liberty in the context of professorial speech.
From the conclusion:
The Supreme Court has invited confusion by noting but not fleshing out an academic-freedom exception to ordinary government-employee speech doctrine. It is possible to flesh out that exception in a way that coheres with the Court's various doctrinal commitments, but it will require reaffirming that professorial speech is "a special concern of the First Amendment." When state government officials attempt to restrict what ideas can be taught in the classrooms of public universities, they do real damage not only to the intellectual life of those universities but also to the public discourse of the country. The First Amendment is grounded in the fundamental commitment to the view that ideas should be freely discussed and that they cannot be rejected or embraced as a result of government diktat. In the mid-twentieth century, the government sought to prevent the spread on college campuses of what it regarded as dangerous ideas by dismissing any professor who might adhere to them, discuss them, or teach them. The Court rejected the stifling hand of censorship then. The tools of censorship being wielded by the government today are different, but the ultimate goal is the same. Government officials do not want professors at state universities to discuss ideas with which those government officials, and perhaps even popular democratic majorities, disagree. The First Amendment bars them from having their way.
The argument developed in the article has relevance for legislation like Florida's Stop WOKE Act, the constitutionality of which is now before the 11th Circuit.
You can find the article here.
The post My New Article on Legislative Restrictions on Classroom Speech appeared first on Reason.com.
]]>Porter is a tenured statistics professor in the college of education. He was unhappy with the direction of the higher ed program, with which he was affiliated. In particular, he thought the college and the program had gone woke and was promoting social justice over good scholarship. He expressed those views internally in departmental email and departmental meetings. As a consequence, he was removed from the higher ed program on the grounds that he was insufficiently collegial.
The majority held that professorial speech in department meetings and the like is speech pursuant to their job duties under Garcetti v. Ceballos and does not fall under a narrow exception for research and teaching. As a consequence, such speech is entirely unprotected by the First Amendment and does not even reach the balancing test under Pickering v. Board of Education.
Such examples of intramural speech would be protected under traditional academic freedom principles, but they have not received a great deal of attention by courts under First Amendment analysis. I have been writing about applications of Pickering to professorial speech of late—in the context of teaching and scholarship here and in the context of extramural speech here. This case does not have direct implications for either of those contexts, but it is not a great precedent for robust judicial protection of dissident faculty members at state universities.
The post A Loss for Academic Freedom in the Fourth Circuit appeared first on Reason.com.
]]>Dr. Joyner's comments included in a New York Times article on the controversy surrounding the transgender college swimmer Lia Thomas were completely anodyne and well within the bounds of what would be protected under any reasonable free expression policy at an academic institution. From the NYT article:
Michael J. Joyner, a doctor at the Mayo Clinic in Rochester, Minn., studies the physiology of male and female athletes. He sees in competitive swimming a petri dish. It is a century old, and the sexes follow similar practice and nutrition regimens.
Since prepubescent girls grow faster than boys, they have a competitive advantage early on. Puberty washes away that advantage. "You see the divergence immediately as the testosterone surges into the boys," Dr. Joyner said. "There are dramatic differences in performances."
. . . .
"There are social aspects to sport, but physiology and biology underpin it," Dr. Joyner noted. "Testosterone is the 800-pound gorilla."
For such comments, Dr. Joyner was suspended, denied an annual salary increase, and threatened with termination.
From the letter:
The AFA recognizes Mayo Clinic's reputational standing as one of the leading private institutions for scientific and medical research and we appreciate that such institutions may enact policies that public entities could not due to First Amendment constraints. But in 2022, Mayo Clinic secured identification as an educational institution for tax purposes in Mayo Clinic v. United States. Two years prior, in 2020, Mayo Clinic adopted its current 'Freedom of Expression and Academic Freedom Policy,' a policy that commits to the 'freedom of expression, which includes the right to discuss and present scholarly opinions and conclusions without fear of retribution or retaliation if those opinions and conclusions conflict with those of the faculty or institution.' The actions taken against Dr. Joyner are neither consistent with an educational institution's protection of academic freedom nor your own institution's policy.
FIRE has likewise weighed in with a letter of its own.
The post Academic Freedom Alliance Statement on Mayo Clinic appeared first on Reason.com.
]]>The House Education Committee is set to take up the bill today, but a new version the bill is now making the rounds. The substitute version of SB 18 would still destroy any meaningful tenure system in Texas, but it would do so more subtly. So subtly, in fact, that the Texas Tribune characterizes it as keeping tenure in Texas. The Texas Tribune has been suckered, and the Texas House might be as well. They should take a second look at the proposed substitute.
It is true that the new bill says that there will be tenure in system, but the details seriously subvert existing tenure protections. In particular, Section 3(c) defines the property interest in tenure as a single year salary. This is designed to allow university to fire tenured faculty without good cause so long as it pays out a single year salary. This is a mockery of a meaningful tenure system.
The bill also makes some significant modifications in what would qualify as good cause for terminating a faculty member at a state university in Texas. Section 3(c-1)(2)(A)(iv) allows professors to be fired for "moral turpitude." This is not an uncommon contractual provisions, but I do not believe that it is common in university tenure systems. I am extremely leery of how this might be used by university officials unhappy with a member of the faculty.
Part (v) of that section of the bill allows professors to be fired for violating laws or university policies. This kind of language has been popping up in tenure revision proposals in several Republican states, and is often part of the effort to ban the teaching of "divisive concepts" in university classrooms. It is intended to facilitate firing professors for teaching forbidden ideas. It would allow professors to be fired for minor policy violations, and encourage future policies to hem in faculty with restrictive rules backed by draconian penalties.
Part (vii) allows professors to be fired for "unprofessional conduct." This is much more sweeping than how university policies are generally written. I would not be confident about how this might be used by university officials looking to rid themselves of a disfavored member of the faculty.
It is no accident that this subsection concludes by saying that professors can also be fired for any "good cause as defined in the institution's policies." It both recognizes that the legislature is here creating unusual understandings of good cause, and invites future tinkering with tenure protections by university governing boards.
The section also authorizes universities to fire faculty when "there is actual financial exigency," which is a normal AAUP-recognized reason for laying off even tenured faculty. But then it adds, "or the phasing out of the institution's programs requiring elimination of the faculty member's position" One can imagine reasonable applications of such language, but one can also easily foresee abuses. There is no provision here for seeing whether tenured professors in defunct departments can be moved to other positions in the university, which is the standard practice endorsed by the AAUP. Moreover, the possibility that programs might be phased out but for reasons other than financial exigency invites political meddling with universities. Don't like the tenured faculty in Women's Studies? Just eliminate the department, and then the tenured faculty members can all be fired. Eliminating departments is more controversial than firing individual professors, but in the current environment this is an easy loophole to exploit.
This version of SB 18 is not as awful as earlier versions, but it would leave Texas state university faculty with a much weakened tenure system full of holes that could empower university officials to rid themselves of troublesome professors. The Texas Tribune seems to have been suckered by the new bill. The Texas state House should not.
The post Still Trying to Kill Tenure in Texas appeared first on Reason.com.
]]>Next up is Tennessee. The Tennessee state legislature has just passed the "Tennessee Higher Education Freedom of Expression and Transparency Act," and it is now awaiting the governor's signature. The new bill builds on a divisive concepts law that was enacted in 2022. Especially in the aftermath of the "Tennessee Three" expulsion fracas, commentators have pulled out the rhetorical stops in denouncing the new bill.
I know that this will come as a shock, but most of the things you will read on Twitter about this bill are wrong. Some parts of this bill and its 2022 predecessor are not particularly good, or even useful, but the consequences of adopting it have been greatly exaggerated. And some parts of both the new bill and the existing law are actually pretty good.
The original version of this bill was contained in SB 817 and HB 1376, and these bills generated some news coverage and controversy when they were first introduced. Late in the process, however, an amendment in the form of SA 378 was approved on the Senate floor and the resulting bill was adopted by the House. SA 378 was a complete replacement of the original text of the bill. So what does SA 378 do?
The bill requires state universities to restrict themselves to time, place and manner regulations only in regard to lawful and peaceful student group activities and speakers invited by those groups. The university may not disfavor speakers based on the content of their views or threats of disruption targeting them. This provision mostly reemphasizes the terms of the Campus Free Speech Protection Act adopted in 2019.
The bill bans requirements for a "diversity statement" from those who apply for jobs or admission at state universities.
It prohibits the use of state funds to support any organization that "requires an individual" "to endorse or promote a divisive concept." Note that this does not bar individuals from joining organizations or participating in activities where they might choose to endorse or promote such concepts. I do not know in practice how many organizations might "require" individuals associating with it to endorse such views. I suspect not many.
Unlike the bills moving through many other state legislatures, this bill does not abolish diversity, equity and inclusion offices. Rather it requires that any campus DEI work "strengthen and increase intellectual diversity and promote a climate that facilitates the free and respectful exchange of ideas" and requires that such administrators must "include efforts devoted to supporting student academic achievement and workforce readiness." I'm skeptical of how well this will be implemented, but in principle it is hard to complain in good faith about such a requirement.
This brings us to the part of the bill has received the most attention, the restriction on divisive concepts. This is what the bill says:
A student or employee of a public institution of higher education who believes that a violation of § 49–7–1903 has occurred may file a report of the alleged violation with the institution. The institution shall investigate the report and take appropriate steps to correct any violation that is found to have occurred. Institutions shall report violations and any corrective action annually to the comptroller of the treasury through the comptroller's office of research and education accountability. A report submitted to the comptroller must be redacted, if necessary, to ensure compliance with the federal Family Educational Rights and Privacy Act.
That's it. Section 49-7-1903 is the divisive concepts law enacted last year. This bill does nothing more than add a reporting system for possible violations of existing law. This is not worthy of so much as a tweet, let alone a tweet storm.
The original version of the bill had much more robust enforcement mechanisms regarding divisive concepts in higher education in the state, but the bill as adopted simply does not.
If there are complaints worth making, the complaints are better directed at the existing divisive concepts law. Tennessee already applied divisive concepts restrictions to higher education, and the new bill does nothing new in that regard. The existing law mandates that
A student or employee of a public institution of higher education shall not be penalized, discriminated against, or receive any adverse treatment due to the student's or employee's refusal to support, believe, endorse, embrace, confess, act upon, or otherwise assent to one (1) or more divisive concepts
and it already specifies that
A student or employee of a public institution of higher education shall not be required to endorse a specific ideology or political viewpoint to be eligible for hiring, tenure, promotion, or graduation, and institutions shall not ask the ideological or political viewpoint of a student, job applicant, job candidate, or candidate for promotion or tenure
In addition, state universities may not require students or employees to participate in training that includes divisive concepts and may not "incentivize" a faculty member to incorporate such concepts into the academic curriculum. The law specifies that it should not be interpreted to infringe on the academic freedom of faculty nor prohibit DEI activities that are compatible with this restriction. The list of divisive concepts is included in § 49-7-1902 and covers familiar ground.
As divisive concepts bills go, this is very modest. Unlike Florida's Stop WOKE Act, for example, it does nothing to restrict ideas or viewpoints that faculty might advocate or promote in the classroom. The only restriction on what professors might do is that they may not penalize students that refuse to "support, believe, endorse [or] embrace" those viewpoints. Students can be exposed to such ideas. They can be required to read materials or listen to speakers that advocate such ideas. They can be required to accurately understand, explain and describe such ideas.
Frankly, there is not much to complain about from an academic freedom perspective in either the new bill or the existing law in Tennessee. The new bill does not in fact do what the headline of a state news story claimed, "TN bill that allows students to report professors who teach 'divisive concepts' passes House and Senate." Nor does it bar schools from "teach[ing] about social, cultural and legal issues related to race and racism" as the body of that news article claimed. It does not "suppress the teaching of race and history" as the Daily Beast claimed. One of the recently expelled legislators declared, "This sounds like fascism." It does not, in fact, sound like fascism. Mediaite asserted that the bill "prohibit[s] teaching of how race has shaped public policy in America." It does not. Nor does the existing law "prohibit[] the use of 'divisive concepts' in college classrooms."
Sometimes people should actually read the bills.
The post State "Higher Ed Reform" Roundup: Tennessee appeared first on Reason.com.
]]>Next up is Ohio. The chairman of the Senate Workforce and Higher Education Committee in Ohio is pushing a single reform bill, Senate Bill 83. It enjoys the support of the National Association of Scholars and the American Council of Trustees and Alumni. SB 83 currently sits in Senate committee. The "Ohio Higher Education Enhancement Act" bundles a variety of proposals into a single legislative package. It is more sweeping than the proposals in some other states, but also generally less intrusive into the scholarly work on state university campuses.
Unusually for the current wave of Republican state higher ed proposals, SB 83 does have some components aimed at private universities. The bill would prohibit any state funds being distributed to private universities unless they also complied with a number of new restrictions being proposed for state universities, including the elimination of DEI training, the elimination of "political or ideological litmus tests in hiring or promotion," and commitment to free speech policies. The limit on state funding would not apply to student financial aid.
The bill would require the development of a training program for incoming members of the boards of trustees of state institutions. This seems like a good addition, though I am surprised that in the long list of things to be included in the program there is nothing on academic freedom or freedom of speech. Trustees need to be educated on the distinctive intellectual climate of the universities that they oversee.
The bill requires that course syllabi be formatted in a particular way and made available and searchable on a website. This requirement would also extend to private universities accepting state funds. This is clearly designed to provide greater transparency regarding course content to outside activists. The benefit to students is likely to be modest, though the bill does require some content that most instructors would probably not naturally include in their syllabi (biographical information about the instructor? description of the subject matter of each lecture?). On the whole, such transparency requirements will probably just encourage the harassment of faculty, but professors should be willing to share their course syllabi and justify what they choose to teach in their courses. That should especially be true at state universities.
The bill requires that each state institution incorporate into their mission statements a series of what might be characterized as free inquiry affirmations. It also requires that state universities commit to an institutional neutrality principle in regard to social and political controversies, prohibit divestment and boycotts, secure free speech, and adopt measures of intellectual diversity (that last one is interesting but the details are left to the campus). That section of the bill also includes the following:
Affirm and guarantee that faculty and staff shall allow and encourage students to reach their own conclusions about all controversial matters and shall not seek to inculcate any social, political, or religious point of view
In principle this seems unobjectionable, but the implementation and enforcement could be quite problematic. Hard to know what it might mean to allow student "to reach their own conclusions" and for a professor "not to seek to inculcate any social" or political point of view. If I teach a class in normative political theory oriented around a set of arguments that liberal democracy is preferable to autocracy, have I sought to inculcate a view? Would I be saved from such an accusation if I included in the readings critics of liberal democracy, or does it matter what I say in class or how I write the tests? Am I failing to "encourage students to reach their own conclusions" if I teach a class on free speech organized around a favorable view of the American constitutional practice? If I am teaching a biology class and show why all the evidence indicates that the mRNA vaccines are safe and effective or demonstrate the significance of natural selection, have I failed to allow and encourage students to reach their own conclusions?
The bill prohibits the use of diversity statements and the like (huzzah!). It also requires that universities "seek out intellectual diversity in invited speakers," as well as imposes transparency requirements on invited speakers. Seems like an admirable goal, but again the implementation is likely to cause all kinds of problems. Does this include, for example, speakers in departmental workshops? If 95% of the speakers invited to share their research in the political science department are reliable Democratic voters but their talks are about their ordinary scholarship in political science, does the university need to score that on some intellectual diversity metric and if so, how?
Requires that undergraduates take a class in American government or history that includes coverage of a specific set of materials (Gettysburg Address, Constitution, Letter from a Birmingham Jail, etc.). Hey, I've got a text that would be super for such a class!
It includes a workload requirement for faculty, with some yet to be specified accounting for teaching, research, and administrative work. Universities much include in student course evaluations a question about whether the instructor teaches a course free of bias. What could go wrong with asking that?
Adopts a post-tenure review system that builds on annual performance evaluations. Professors can lose tenure and be terminated for persistent poor performance as assessed by the department chair. The final say on any post-tenure review process would rest in a committee of the board of trustees.
It imposes a series of restrictions on relationship between state universities and Chinese institutions.
It eliminates affirmative action and prohibits training that includes a standard list of divisive concepts.
It prohibits strikes by public employees, including state university employees.
SB 83 is quite the grab bag. It is more modest than the proposals being considered in some other states. No elimination of tenure. No restriction on teaching "critical race theory." Critics have been quick to jump to the claim that the bill "censors" professors and is a "gag order," but that rhetoric seems overwrought. Some of the proposals would undoubtedly create implementation problems that would interfere with academic freedom, but there is room for some relatively modest revisions to the current bill that would alleviate those concerns.
The post State "Higher Ed Reform" Roundup: Ohio appeared first on Reason.com.
]]>Next up is Texas. Last year the powerful Lieutenant Governor of Texas, former TV sportscaster Dan Patrick, declared that that the time had come to end tenure at public universities in the Lone Star State. The lieutenant governor is the presiding officer in the Texas state senate and exercises substantial formal and informal power in that chamber. Patrick has not forgotten about his vow, and it seems likely that some very dramatic reform bills will pass the Senate. The prospects that the proposals will be defeated in the House and in the governor's mansion are not at all clear. The Texas legislature is also set to pump additional funds into the state universities, but these structural reform bills work at cross-purposes with the governor's goal of creating more premier public universities in the state.
There are three bills of particular interest (though there are some other measures affecting higher education that have also been designated as legislative priorities). The Texas AAUP also have a convenient bill tracker.
Senate Bill 16, sponsored by the chair of the Senate Jurisprudence Committee, is a version of the anti-critical race theory or divisive concepts bills that have been adopted relating to primary and secondary education and that Florida extended to higher education in the Stop WOKE Act (which was subsequently enjoined by a federal district court). SB 16 is much briefer than the Stop WOKE Act. It prohibits state university professors from "compel[ling] or attempt[ing] to compel" an enrolled student "to adopt a belief that any race, sex, or ethnicity or social, political, or religious belief is inherently superior to any other race, sex, ethnicity, or belief."
This language might have a better time in court than the Stop WOKE Act, which went far beyond attempts to "compel" belief. Nonetheless, the bill is concerning. The penalty for violating the act is severe—immediate termination. It would likely chill classroom speech as faculty try to avoid any appearance of compelling belief on various sensitive topics routinely discussed in college classrooms. To the extent that the law simply codifies the constitutional prohibition on compelled speech, then it accomplishes little other than attempting to chill speech. To the extent that it might be interpreted to prohibit professors from advocating certain views in the classroom or requiring students to correctly describe and analyze such views in their coursework, then it will invite controversy. Not hard to imagine students complaining that a professor attempted to compel them to believe that, for example capitalism is superior to socialism by assigning them to write an essay with that premise.
In floor debate, the bill sponsor says that a professor would violate the law if he says, "if you wanna pass my class, then you have to say that." The statement appears to come in response to questions about whether, for example, a biology professor could require students to affirm evolution as the origin of human beings. A biology professor required such an affirmation for students wanting a letter of recommendation to medical school or graduate study until the policy came to public attention. Not great, Bob.
The bill is likely to pass the Senate tonight and head over to the House.
Senate Bill 17, sponsored by the chair of the Senate Education Committee, is now before that committee. That bill would shift greater authority to the university boards of trustees, would prohibit the use of diversity statements in faculty hiring, and would abolish the activities of diversity, equity and inclusion administrators. A similar prohibition was adopted as an appropriation rider in the House. Violating the DEI ban can be a cause for terminating even tenured members of the faculty. The bill would also require state universities to adopt as part of their mission statements a set of pledges regarding intellectual freedom, including a commitment to "viewpoint diversity" and "institutional neutrality."
The AAUP has criticized all of these components of the bill, including the institutional pledges which that organization regards as catering "the right–wing claim that universities are too liberal."
From my perspective, the DEI ban and the institutional commitments are all to the good in enhancing the intellectual freedom on college campuses. The potential penalty for faculty who violate the DEI ban is worrisome, however, in both its chilling effect and its unjustified expansion of the bases upon which tenured professors can be terminated.
The shift in governing authority to the trustees is troublesome, however. It would cut faculty out of the presidential search process and require board approval of all administrator hiring down to the assistant dean level and of all general education courses. Shared faculty governance in the appointment of senior leadership is a longstanding desire of faculty advocacy groups and does have meaningful implications for academic freedom and the academic functioning of the university. Removing faculty from the process in hiring university presidents will set up unnecessary conflicts and blunders down the road. Pushing trustees to insert themselves deep into the academic functioning of the university is just inviting problems from a scholarly and academic freedom perspective.
Senate Bill 18, also sponsored by the chair of the Senate Education Committee, has passed the committee and is now on the Senate floor. This is the big enchilada. The bill would prohibit state universities from granting tenure to any member of the faculty hired after September 1, 2023. It allows the board of trustees to create "an alternate system of tiered employment status for faculty members" so long as everyone must undergo annual performance evaluations. Faculty currently on the tenure track will no longer be eligible for "any type of permanent employment status." Faculty who currently have tenure would potentially be subject to more aggressive post-tenure reviews, but that is unclear.
This is the most radical challenge to tenure with any prospects for adoption in any state legislature at the moment. It would have a transformative effect on Texas state universities and would seriously imperil academic freedom at those institutions. If Texas were to pass SB 18, it seems quite likely that the post-tenure review system would be next up for reconsideration and that multiple other red states would follow Texas's lead in gutting tenure at their public universities.
SB 16 is not great, and SB 17 has some problems, but SB 18 is the atomic bomb that would blow up Texas higher ed.
UPDATE: The Texas state senate did pass SB 16, and it is now before the House.
The post State "Higher Ed Reform" Roundup: Texas appeared first on Reason.com.
]]>First up is North Dakota. As I've noted before, North Dakota was considering very significant changes to the tenure system in the state universities. HB 1446 was sponsored by the House majority leader, and Republicans enjoy sizable majorities in both legislative chambers. Unsurprisingly, the bill sailed through the lower chamber. Amendments in the House cut some of the particularly egregious components of the original bill, but left in place the core commitment to gutting tenure. By the time the bill got the Senate it was being pitched as a pilot program that would only have an immediate effect on two campuses. I submitted testimony to the Senate critical of the bill, which left essentially unconstrained discretion in the hands of senior university officials to fire tenured members of the faculty. The bill was widely panned in submitted testimony to both the House and the Senate. The Senate Education Committee sent the bill to the Senate floor with the recommendation that it be passed into law, though it stripped the language about it being a pilot program in an apparent effort to reassure the other campuses that they would be spared from the reform.
HB 1446 failed to pass the Senate in a 21-23 vote on March 31. A motion to reconsider failed by a vote of 23-24. The"Tenure with Responsibilities Act" is dead for now, but there is clearly plenty of support in the legislature for severely weakening tenure and faculty governance.
The post State "Higher Ed Reform" Roundup: North Dakota appeared first on Reason.com.
]]>"I think it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down,"he began, and he concluded with "The exemplary historical figure in this regard is Sholem Schwarzbard, who assassinated the anti-Semitic butcher Symon Petliura, rather than trying to shout him down. Remember that Schwarzbard was acquitted by a jury, which found his action justified."
The president of Wayne State has now announced that the professor has been suspended and his social media post referred to law enforcement.
The professor's post is almost certainly constitutionally protected as neither a true threat nor an incitement to imminent lawless action. Wayne State, like many universities, has adopted the language American Association of University Professors' 1940 Statement on Academic Freedom. Under that policy, when speaking in public as a citizen a professor should be free from institutional censorship or discipline. Once the police investigation concludes, the professor's suspension should be lifted.
The professor would be well-advised to take a break from social media. Negative partisanship has gotten quite intense in our current environment, and the number of individuals who like to fantasize on social media about the death of their political opponents is truly disturbing.
Now would be a good time for the professor to recall the admonition in the AAUP Statement and the university's policy:
As a person of learning and an educational officer, he/she should remember that the public may judge his/her profession and his/her institution by his/her utterances. Hence he/she should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that he/she is not an institutional spokesperson.
The post Professor Suggests Murder as Alternative to Shouting Down Speakers appeared first on Reason.com.
]]>Broadly speaking, there are two kinds of theories about the political supports for an independent judiciary. The two kinds of approaches are not mutually exclusive, and they are probably both significant to some degree or another. There are lots of specific variations within the broad types. But such theories are concerned with trying to explain the puzzling independence of courts.
One class of theories emphasizes elite support for judicial independence. This has generally been the focus in my work. Political Foundations of Judicial Supremacy, for example, emphasized the strategic calculations of national political leaders like presidents make in finding an independent judiciary to be politically useful. Presidents have benefited from being able to shift blame for unpopular policy outcomes to the unelected courts and to pass off politically contentious policy decisions to ideological allies in the judiciary. Repugnant Laws emphasized how the U.S. Supreme Court has husbanded political authority by cautiously exercising judicial review in a way that does not force a confrontation with ascendant political majorities. Or as I noted in a piece focusing on interaction of the Court and Congress,
Legislative support for judicial independence in the exercise of judicial review depends on a political cost-benefit analysis by legislators. If independent judicial review is more politically costly to legislators than it is beneficial to them, then the legislature is likely to seek to subvert judicial independence and to look for ways to sanction the courts. If judicial review is, on the whole, beneficial to legislators, then they are likely to support, or at least acquiesce in, an independent judiciary.
Where a fairly unified and electorally stable coalition emerges, courts are kept on a short leash. Where courts obstruct politically important policies or give incumbent governments nothing but losses, the judges are likely to get slapped.
Another class of theories emphasizes mass support for judicial independence. These theories contend that the public will impose a cost on politicians who threaten judicial independence. Some of this work examines the "diffuse support" for the courts in public opinion data. Diffuse support refers to a "reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed to the effects of which they see as damaging their wants." By contrast, specific support refers to favorable attitudes about the policy outputs of the courts. Courts might be "legitimate" in the public's eyes because they produce the policies or support the groups that a majority of the public also wants or supports, or they might be regarded as legitimate despite the fact that they produce policies that are themselves unpopular. One way in which that diffuse support might be expressed is through public opposition to judicial reform or political challenge to the courts, while the lack of diffuse support might cash out in public support for judicial reform. Even if politicians find an independent judiciary to be inconvenient, mass support for the courts can prevent politicians from doing anything about it.
The events in Israel provide a dramatic demonstration of both theories. Prime Minister Benjamin Netanyahu has advanced a proposal for judicial reform. Such proposals, like Court-packing proposals in the United States, reflect the sharp political divergence between the judiciary as currently constituted and the currently dominant political coalition. A politically confident political coalition decided the judiciary was too obstructionist to its valued policies, and so it tried to rein in the independence of the judiciary. An elite approach to judicial independence would expect as much. But in response, a huge swath of the mass public have taken to the streets to protest against the proposal and in favor of the courts. Diffuse support for the courts in the mass public in action. Such a display will often scuttle the political attack on the courts, and the possibility that something like this might happen is an important deterrent to court-curbing policies.
With Court-packing very much in the air in American politics, one wonders whether the U.S. Supreme Court could count on a similar public backlash to protect an independent judiciary here. Seems unlikely. If so, that's one important pillar supporting judicial independence gone. The Roberts Court better hope Republicans keep winning elections.
The post Political Supports for an Independent Judiciary appeared first on Reason.com.
]]>I have submitted written testimony in my individual capacity to the North Dakota Senate Education Committee. Here's a taste:
Although I appreciate the legislature's interest in ensuring that faculty employed at state universities remain productive over the course of their careers, the provisions of the current bill would significantly undercut an effective tenure system that is essential to promoting free inquiry on college campus.
. . . .
Post-tenure reviews of the performance of members of the faculty can be entirely compatible with the maintenance of a meaningful system of tenure protection. There are many ways that such a system of post-tenure review can be designed, but this bill would entrust university presidents with essentially unconstrained discretion to terminate tenured members of the faculty. Such sweeping discretion to revoke tenure and terminate a faculty member would effectively subvert the very purpose of granting tenure protections in the first place.
My testimony can be found here.
The post My Testimony on the North Dakota Tenure Reform Bill appeared first on Reason.com.
]]>From the piece:
State universities have never been perfectly independent from political pressure. They are ultimately creatures of the state and dependent on the good graces of political leaders. But American universities have long enjoyed a significant degree of freedom from political meddling in academic affairs, and that insulation from politics has allowed public universities to become intellectual powerhouses.
That long-lived arrangement may be nearing an end in many red states. It is hard to know where this newfound willingness to micromanage state universities will lead, but it would be a radical departure from the past. If conservatives are concerned that the intellectual environment at universities has become too stifling, this program of reform may provide a cure that is at least as bad as the disease.
The post What is at Stake in Florida Higher Ed Reform Bill? appeared first on Reason.com.
]]>We now have some details in the form of House Bill 999. If anything, the current bill is worse than the bullet points the governor outlined a few weeks ago. The text of HB 999 can be found here. Hopefully the bill will be improved before its seemingly inevitable final passage.
Some of the highlights:
The board of trustees may delegate its hiring authority to the president; however, the president may not delegate such hiring authority and the board must approve or deny any selection by the president.
Say what now? The president has to personally read all the application files for even adjunct positions and make the hire for every vacancy in the university? Good luck with that.
Each state university board of trustees may, at the request of its chair, review any faculty member's tenure status.
The board can unilaterally revoke tenure? So tenure in Florida might protect you from an unhappy department chair, but it won't protect you from the university leadership (through post-tenure reviews) or the trustees (through this provision). Don't rock the boat in the Sunshine State.
That's a lot of "reform." Hard to imagine that this kind of micromanagement of how universities operate will be very workable in practice, even if it were a good idea. It is not quite as terrible as some critics are already claiming, but it poses a serious threat to tenure protections and faculty hiring. There will also be some substantial constitutional challenges to several provisions of this bill if it gets adopted in anything like its current form. In the name of prohibiting political litmus tests for faculty, the reform will wind up imposing political litmus tests for faculty.
The post Higher Education "Reform" in Florida appeared first on Reason.com.
]]>I guess some people think Florida will be in Republican hands forever. I'm gonna go out on a limb and question that. People who cheer on state control of universities might be singing a different tune when power switches hands unexpectedly.
— Jennifer A. Frey (@jennfrey) February 1, 2023
I'm very sympathetic to this form of argument in general when it comes to free speech debates, but in this case I don't think conservatives will find it very persuasive. It is worth unpacking why.
In short, we are further down the game tree than Frey assumes that we are.
For me a very important argument against censorship regimes is that you should not trust the censors or assume that they will always agree with you. If you set up a speech code, you better think carefully about whether you'd be ok with your enemies implementing it. A free speech regime is to an important degree a non-aggression pact. I won't try to censor you, if you don't try to censor me. Breaking that rule or norm risks retaliatory moves down the road.
So should folks like DeSantis worry about what will happen to state universities when their political opponents win political power, whether in Florida itself or in blue states generally? I don't think that is or should be a particular worry for them. So why not?
Imagine a left-wing DeSantis comes to power and is quite willing to meddle in universities to advance their own ideological vision using the kinds of tools DeSantis is now using and might use in the future. Should conservatives fear that possibility and so restrain themselves now? Not really and here's why. The status quo in universities ALREADY looks like that is the case. They are already ideologically captured. What would a left-wing DeSantis do to get universities to behave more in accordance with his preferences? Probably nothing. Mission already accomplished.
From a conservative perspective, there is little to fear from breaking down the norm that keeps politics out of universities. From their perspective that norm is already gone. Politics is already in the universities, but it came from the inside. The calls are coming from inside the house! It might even be the case that a left-wing DeSantis would try to pull universities to the right. The median Democrat is currently to the right of American universities. Universities are the party of Elizabeth Warren and Bernie Sanders, not the party of Joe Biden.
Where does that leave the distrust of censors argument in favor of free speech in the case of state universities? I've been screaming the warning for awhile now. The "other party" that might get control is in fact Republicans like DeSantis. The chickens are already coming home to roost. The censorious on college campuses have been emboldened by the assumption that they will always be in charge on campus. The dean will always be my ally, so why worry? That certainly was not the expectation of students and young faculty in the 1960s when they were pressing to expand free speech protections on campus and disempower administrators, but that is the expectation now. Administrators, students, and young faculty now join hands to draft and implement campus speech codes and enforce political orthodoxy.
That would work out just fine for campus activists if universities were self-contained. If the censored on campus have nowhere to go and no hope of gaining control over the tools of censorship, then that disempowered minority is out of luck and the empowered majority can have a field day. Checks on authoritarian power are politically sustainable in competitive multi-party systems, but when one side thinks it has long-term domination over the political system then that side's willingness to tolerate checks on its exercise of power fades away. That is true of authoritarian leaders in one-party states, and it is often true of the campus left when it comes to university operations.
But universities are not self-contained, as the DeSantis situation demonstrates. There are external levers of power that can impact universities, and those levers can be pulled by conservatives. Donors, alumni, media, politicians. "Power switching hands" in the university context means power shifting out of the hands of left-wing students, administrators and professors and into the hands of right-wing politicians. We are currently witnessing what happens when the power switches hands. Frey pitches her point as a warning about the future, but she would have been better served by making that point in the past. The future is now.
And that is why we should always listen to E.E. Schattschneider, the great political scientist of the mid-twentieth century. One of his crucial contributions was his analysis of expanding the scope of conflict. As he observed,
The outcome of every conflict is determined by the extent to which the audience becomes involved in it. That is, the outcome of all conflict is determined by the scope of its contagion.
If you are losing a fight, you try to pull new allies into the fight and change the balance of power. For Ukraine fighting a Russian invasion, that means pulling in the United States. For conservatives on campus, expanding the scope of the conflict means appealing to people like DeSantis to try to get them to weigh in. And now they are. The audience is becoming involved in the conflict, and the scope of the conflict is expanding.
If power switches sides in the Florida statehouse, the worst that can happen from a conservative perspective is that things go back to the way they are RIGHT NOW. Universities are already in the worst case scenario from the perspective of many conservatives. No place to go but up. That is how you get Flight 93 elections and conservatives rallying behind Donald Trump, and it is how you get DeSantis higher education reforms. I do not think we are yet to the crisis point, but plenty of conservatives do. If you share their assumptions, then they think it is about time to even the playing field on campus.
I think my disagreements with the DeSantis response to the troubles on college campuses are pretty clear. I have been beating that horse for awhile now. I think the end result of this conflict will be bad for universities and free inquiry. But Frey's argument won't cut any ice with conservatives. The potential bad outcome of this, for conservatives, is not that Democrats in the future behave like DeSantis. The potential bad outcome is that universities continue down their current path. I've also been warning the left on campus that if they did not clean up their own house there would be a day of reckoning from the political right. That day is arriving faster than I expected, and I'm hardly happy about it.
More outside political interference with how universities operate will also not be healthy for the intellectual climate of universities. Free inquiry will be constrained whether there is left-wing political interference or right-wing political interference. But let us not pretend that free inquiry is not being constrained on college campuses right now.
Telling conservative politicians and voters that DeSantis is setting a bad precedent? Well . . . . that's going to fall of deaf ears.
Academics: we are appalled that anyone would try to politicize the academy and academic hiring.
Also academics: pic.twitter.com/jq5lrPnko3
— Brandon Warmke (@BrandonWarmke) January 31, 2023
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]]>For several of these proposals, the details will matter—a lot. Nonetheless, the bare outline is significant, even if some of these items wind up looking better, or much worse, as they get translated into policy.
DeSantis indicated that he will be making a couple of relevant budget recommendations to the legislature. They include money for New College (which now has a new set of trustees with a gubernatorial mandate), new money for civics institutes that were inspired by the James Madison Program at Princeton, and $100 million for faculty retention and recruitment.
Other proposals call for more statutory reforms of Florida higher ed. They include
Will undoubtedly shape Republican debates on higher ed, even if the full package does not get adopted in Florida or gets significantly modified on the path to adoption. Will bear careful watching.
The post The Latest DeSantis Higher Ed Reform Proposals appeared first on Reason.com.
]]>Inside Higher Ed has a good rundown:
North Dakota's House majority leader has introduced legislation that would let presidents of at least two colleges, Dickinson State University and Bismarck State College, fire tenured faculty members based on those presidents' own, unappealable reviews.
The text of the proposed legislation can be found here.
A couple of key provisions:
3. If a president determines a tenured faculty member has failed to comply with a duty or responsibility of tenure, the president may not renew the contract of the tenured faculty member, unless the president specifically articulates why it is in the interest of the institution to continue to employ the faculty member despite the faculty member's failure to comply with the duties and responsibilities of tenure.
4. The president of an institution may enlist the assistance of an administrator at the institution to conduct a review but may not delegate responsibility for the review to a faculty member who is not an administrator.. . . .
6. A review under this section is not appealable or reviewable by a faculty member or faculty committee. . . .
Apparently the design of this bill is motivated specifically by the fact that post-tenure review systems adopted at many state universities do not result in enough fired professors.
The world of American higher education may look very different in a few years.
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]]>The way he has approached the issue is cause for alarm, however, for those who care about academic freedom. I have a new piece over in The Dispatch on the various moves to date in Florida.
From the piece:
DeSantis has adopted a machine gun approach to conservative complaints about higher education, spraying bullets everywhere in the hopes that some might hit the target, without worrying too much about collateral damage. Given the rush of activity, mixed motives, and heated rhetoric, it is also not surprising that his critics have not always been too careful about distinguishing between genuine threats to academic freedom and mere policy disagreements. Nonetheless, the risk to free inquiry at Florida state universities under DeSantis is a real one.
Also I'm on the latest episode of The Remnant with Jonah Goldberg talking about Hamline, Florida, and the general state of free inquiry in higher education.
Also some notable recent pieces on Florida that are not by me.
Emma Pettit at the Chronicle of Higher Education has been doing excellent reporting on developments in Florida
The post Academic Freedom in Florida appeared first on Reason.com.
]]>President Donald Trump issued Executive Order 13950 on September 22, 2020, which prohibited federal workplace training programs that taught, advocated, or promoted any "divisive concepts." Since then, many proposals have been made in the states similarly to exclude divisive concepts, or what has sometimes been characterized as "critical race theory," in government workplace training and in public schools. More recently, such bans have also been contemplated for state colleges and universities. The most prominent of these was adopted by the Florida legislature in the "Stop W.O.K.E. Act" in 2022. The enforcement of that statute has now been enjoined as unconstitutional by a federal district court. I have discussed the problem with such legislation at some length.
We should be particularly wary of public officials imposing limitations on what ideas can be discussed inside the university. The temptation to abuse such a power in order to suppress ideas that incumbent politicians or transient majorities find threatening to their interests and sensibilities is far too great. Conservatives have rightly warned that campus speech codes are used to silence points of view that some members of the campus community did not like. Campus speech codes imposed by legislators or trustees should spark the same concern, even if the targeted speech is different. Repugnant ideas on a college campus should be challenged through criticism and debate, not through the tools of censorship.
. . .
We should also worry about the precedent that such divisive concepts bans set for the future. If a legislature may ban students from hearing someone espouse the view that individuals should receive adverse treatment on the basis of their race or sex in order to advance equity goals or that ideas of merit can be oppressive, they could equally ban any number of other controversial social, political, philosophical, or scientific concepts from the university campus. A future legislature could just as well ban anyone on a state university campus from espousing the view that human life begins at conception or that mandatory vaccination policies are an affront to individual liberty or that free enterprise has been an engine of human progress. We protect a realm of free inquiry by insisting that university campuses should enjoy some degree of insulation from the political passions of the moment. We should not have to hope that enlightened politicians will tolerate the good kinds of ideas and suppress only the bad ones. We should leave the winnowing of good from bad ideas to the process of scholarly investigation and disputation and free and open classroom debate.
The post Academic Freedom Alliance Statement on Divisive Concepts Policies appeared first on Reason.com.
]]>Here's a taste:
In an extremely competitive field, Hamline University is making a bold bid to be the new standard-bearer for universities willing to cast aside principles of academic freedom and freedom of speech. What really sets Hamline apart is the degree to which the university is sacrificing its core academic mission for the sake of political correctness and the willingness of the university president to be so explicit about what she is doing.
It is behind a paywall, but if you are not already a subscriber to The Dispatch I'd recommend becoming one. They do good work over there.
UPDATE: Looks like you can access the article by signing up for a free account without making a full commitment to pay for access. Check it out.
The post More on Hamline appeared first on Reason.com.
]]>Part of what made the case particularly remarkable was the unusual degree of clarity about their priorities from the university leadership. Usually university presidents try not to be so explicit about what they are doing when they ride roughshod over academic freedom. But Hamline's president tells you how things are:
Our response to the classroom event does not disregard or minimize the importance of academic freedom. It does state that respect, decency, and appreciation of religious and other differences should supersede when we know that what we teach will cause harm.
Having now heard from academic freedom experts, the president of the Hamline University followed up with another email to the campus community reaffirming that student sensitivities trump academic freedom at Hamline.
"As has been reported, this past semester an adjunct instructor displayed images of the prophet Muhammad. Students do not relinquish their faith in the classroom. To look upon an image of the prophet Muhammad, for many Muslims, is against their faith," she said in a prepared statement included in the email.
"Questions about how best to discuss Islamic art have been raised by many academics and is certainly an issue worthy of debate and discussion. For those of us who have been entrusted with the responsibility of educating the next generation of leaders and engaged citizens, it was important that our Muslim students, as well as all other students, feel safe, supported, and respected both in and out of our classrooms. As we have stated, in the immediate aftermath of students' expressed concerns, the University's initial response and actions were to address our students' concerns. And, contrary to what has been reported and become the story, it is important that this aspect be reported. It is also important that we clarify that the adjunct instructor was teaching for the first time at Hamline, received an appointment letter for the fall semester, and taught the course until the end of the term," her statement continued.
The board of trustees at Hamline will have to weigh in on whether or not Hamline is a serious university.
The post Hamline President Keeps Digging appeared first on Reason.com.
]]>The painting in question is widely regarded as an important work of art in the Persian and Islamic traditions, and it is regularly exhibited and taught in classrooms across the globe. A video of the class session reportedly indicates that the professor took care to give a "content warning" and provide necessary context before the image was shown to the class. The class itself was apparently virtual, and the instructor gave students an opportunity to turn off their own video feed to avoid viewing the image.
Some students in the class complained that they felt disrespected by the showing of an image of Muhammad which some devout Muslims regard as unacceptable. The associate vice president for inclusive excellence denounced the instructor's actions as "inconsiderate, disrespectful and Islamophobic" and "unacceptable" in a Hamline classroom. The president then announced to the campus community that academic freedom "should not and cannot be used to excuse away behavior that harms others." The putatively harmful behavior in this context was showing to students in a college class a famous work of Islamic art. Nonetheless, the president concluded that "respect, decency, and appreciation of religious and other differences should supersede" academic freedom.
This is an egregious affront to academic freedom, as both PEN America and FIRE have likewise recognized. The incident first came to public view as a result of an online article by University of Michigan art professor Christiane Gruber.
Hamline University has made a contractual commitment to its faculty to respect and protect their academic freedom. The Hamline University Faculty Handbook as approved by the Board of Trustees in 2021 is clear. Hamline adopted without reservation the 1940 statement on academic freedom endorsed by the American Association of University Professors and the American Association of Colleges. Section 3.1.2 of the Handbook guarantees that "all faculty members are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject." The guarantee extends to every individual at Hamline who is working in an instructional capacity regardless of whether they enjoy the protections of tenure. There is simply no question that introducing students to an important piece of Islamic art in a global art history class is covered by this principle of academic freedom. Hamline's own stated commitment to academic freedom is unqualified. There is no exception for students who feel offended or disrespected by materials they encounter in the course of their college education.
and
In your message to campus, you noted that "Hamline University is composed of people with diverse views, expectations, and interactions." Indeed it is, but the implication that you apparently have drawn from this fact is untenable. Art frequently offends. It was not long ago that Catholics were deeply offended by the exhibition of Andres Serrano's "Immersion (Piss Christ)" and Chris Ofili's "The Holy Virgin Mary," which portrayed the Virgin Mary with pornographic images and elephant dung. Prosecutors once attempted to shut down a museum exhibit of Robert Mapplethorpe's homoerotic photographs, and censors long suppressed the distribution of classic works of twentieth century literature like D.H. Lawrence's Lady Chatterley's Lover and James Joyce's Ulysses. Only months ago, the celebrated novelist Salman Rushdie was nearly killed in a violent assault stemming from a religious extremist's condemnation of his depiction of Muhammad. Conservative Christian students at the University of North Carolina attempted to prohibit the assignment of passages of the Quran as disrespectful of their religious beliefs, and conservative Christian students at Duke University demanded that Alison Bechdel's graphic memoir Fun House not be assigned because "Jesus forbids his followers from exposing themselves to anything pornographic." If every student at Hamline University has the ability not only to veto offensive classroom content but to terminate professors for introducing such material into their classroom, then a vast swath of literature and art will be off-limits to the students and faculty there.
The post Academic Freedom Alliance Statement Regarding Hamline University appeared first on Reason.com.
]]>I wanted to point out a specific feature of the case, which is how it treated the concept of workplace "disruption" within a Pickering balancing analysis of how government employers can respond to government employee speech. I recently posted about a district court opinion regarding political flyers at a state university that I think did this quite badly. In that case, "the court thought the university had an overriding 'interest in fostering a collegial educational environment,'" and thus could punish professors for distributing flyers on campus criticizing the politics of another professor.
I argue in a forthcoming article that the disruptive workplace component of the Pickering balancing test frequently becomes a means for imposing a heckler's veto on government employees with unpopular political views. Especially in a university context, courts should be extremely sensitive to the possibility that university officials might use the mere fact that some people disagree with a professor's speech as a good reason to suppress the speech. The government employer's legitimate interest in avoiding disruption to the workplace needs to be read much more narrowly, at least in some contexts.
The 9th circuit panel in the MAGA hat case did a much better job, and that court showed itself to be quite sensitive to the dangers of a heckler's veto when a principal threatens to fire a teacher because other teachers found the presence of his hat to be "traumatizing" and "threatening."
From the opinion:
Here, Principal Garrett contends that her interest in preventing disruption among the staff at Wy'east outweighed Dodge's right to free speech. Given the nature of Dodge's speech, she has a particularly heavy burden under the Pickering test. Principal Garrett points to evidence that teachers and staff felt "'intimidated,' 'shock[ed],' 'upset,' 'angry,' 'scared,' 'frustrated,' and 'didn't feel safe'" after learning about Dodge's MAGA hat. But there is no evidence that Dodge's hat "interfered with h[is] ability to perform h[is] job or the regular operation" of the school, or that its presence injured any of the school's legitimate interests "beyond the 'disruption that necessarily accompanies' [controversial] speech."
There is no evidence that Dodge or his hat interfered with the teacher training sessions. Dodge sat in the back of the room quietly during both trainings with the hat either on his table or on his backpack beside him. From the approximately 60 attendees present, fewer than five people complained, including the first presenter who was not a District employee and a teacher who did not work at Wy'east. And regardless, both trainings were completed without incident. Nor did Dodge's expression cause any disruption to school. He had his hat at teachers-only trainings where students and parents were not present, and he told Principal Garrett that he would not wear it "in class, around parents, or in front of kids." No students or parents ever complained about Dodge's MAGA hat.
In sum, while some of the training attendees may have been outraged or offended by Dodge's political expression, no evidence of actual or tangible disruption to school operations has been presented. Political speech is the quintessential example of protected speech, and it is inherently controversial. That some may not like the political message being conveyed is par for the course and cannot itself be a basis for finding disruption of a kind that outweighs the speaker's First Amendment rights.
Bravo.
I'll also just call attention to one disturbing component of the principal's defense of her actions against the MAGA-hat wearer.
Mr. Dodge's decision to wear his MAGA hat on school grounds within weeks of the Trump Administration's loud and publicized initiative to deport as many immigrants as possible was an affront to Wy'east's agenda of cultural inclusivity and interest in creating a safe place for ELL students. [emphasis added]
University officials have likewise embraced the notion that cultural inclusivity and similar commitments are core values of the institution as they denounce speakers on campus who challenge that orthodoxy. It is hardly surprising that a school principal would draw the natural conclusion that anyone seen as questioning the school's "agenda" is ipso facto disruptive and should be sanctioned, even as political expression that is consistent with the school's "agenda" (like Black Lives Matter posters and Bernie Sanders bumper stickers) should be embraced.
The court here correctly, I believe, worked from the assumption that a government school was constitutionally required to be institutionally neutral about political values. The school as such could not prefer Black Lives Matter posters to MAGA hats, and could not base employment decisions on such preferences. It is evident that many university professors, administrators and leaders, at both public and private institutions, would not work from that same assumption.
The post Doing Pickering Balancing Right appeared first on Reason.com.
]]>To briefly recap, Professor Andrew Donadio serves as the faculty advisor for the local chapter of Turning Point USA at Tennessee Tech University. Professor Julia Gruber and Andrew Smith (an instructor) produced a flyer that they placed around campus declaring that the "hate and hypocrisy" of "Professor Donadio and Turning Point USA" are "not welcome at Tennessee Tech" and that there should be "no unity with racists" and that "hate speech is not free speech." In response to a complaint by Donadio, Provost Lori Bruce disciplined Gruber and Smith for violating Policy 600, which requires members of the faculty "to conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards." The flyer can be seen here. Gruber and Smith sued Bruce for retaliatory action against constitutionally protected speech. The district court upheld the university's discipline.
The Supreme Court laid down the relevant analytical framework for resolving such cases in Pickering v. Board of Education. When a government employee speaks in his or her personal capacity about a matter of public concern, the courts recognize some First Amendment interest against reprisal by the governmental employer. When such speech is at issue (as is the case here), then courts must balance the employee's First Amendment interests against the employer's interest in the efficient delivery of government services. That balancing is understood to require a highly contextual judgment.
Unfortunately, Tennessee Tech ignored its own policy against punishing speech that some might find "offensive" or "disagreeable" on the grounds that the flyer constituted unprofessional conduct and a "personal grievance" rather than political speech. The court agreed that "calling a colleague a racist is hardly collegial" and "sneaking around and dropping-off anonymous flyers . . . falls short" of "respectful" conduct. Even though the university had shown "little in the way of actual harm" (Donadio got a Fox News hit out of the dust-up and it was otherwise business as usual on campus), the court thought the university had an overriding "interest in fostering a collegial educational environment."
As I argue in the forthcoming article, such an analysis is completely unsuited to a university environment. The government's interest in fostering a harmonious working environment might be quite strong in the context of a police department, but in the context of professors at a university the demand for "harmony" and "collegiality" too easily becomes a heckler's veto aimed at silencing disagreeable political speech. As then-Judge Alito noted, "'Harassing' or discriminatory speech, although evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections." Although the district court quoted the 6th Circuit on a "university's interest in maintaining a hostile-free learning environment," it ignored that court's warning that such speech is protected when it "serve[s] the purpose of advancing viewpoints, however repugnant, which had as their purpose influencing or informing public debate."
The key question is what should count as disruptive speech in the university context. If academic freedom values are going to be adequately protected, the government employer's concern with fostering workplace harmony needs to be sharply cabined when it comes to the extramural speech of university faculty. The demand for harmony in academia can easily become a demand for "supineness and dogmatism." Reconciling academic freedom with the university employer's interest in preventing disruption requires more guidance than the Court has thus far provided. Protecting academic freedom means protecting "the freedom to teach and write without fear of retribution for expressing heterodox ideas." Universities should foster intellectual disruption, but they need not tolerate "interfer[ence] with the work of the school."
. . .
Professors who incite anger by expressing unpopular ideas or making use of inflammatory rhetoric are a byproduct of fostering a vigorous intellectual environment, and universities have no legitimate interest in disciplining them for ruffling feathers by speaking their minds. Professors who incite anger by being verbally abusive to students or staff, however, are not speaking as citizens or advancing ideas. They are not disrupting their workplace by challenging conventional wisdom but by bullying those around them. Professors who are merely "demeaning, rude, and insulting" give universities good cause to take action to curb their behavior. The Court has said that the "manner, time, and place" of a government employee's speech should weigh in the Pickering balance. Professorial speech that is directed to the broader community or to an audience and addresses a matter of public concern will always deserve a high degree of constitutional protection, even when members of the audience take offense, but the face-to-face hurling of personal insults at a student or fellow employee is much less likely to weigh in favor of a professor in a Pickering balancing.
The distribution of a flyer on a college campus denouncing the political activities of professors and student groups is precisely the kind of "free exchange of ideas" that Tennessee Tech has committed itself to tolerating and that the First Amendment protects on a state university campus. Speech is no less protected whether it offends the sensibilities of those on the left or on the right. Donadio should not be disciplined for his "shocking" speech, and Gruber and Smith should not be disciplined for their counter-speech.
Weaponizing professional conduct regulations on campus to suppress unpopular speech is the kind of action that courts should deter rather than encourage. Unfortunately, if not appropriately calibrated to the university context, the Pickering balancing test can subvert rather than protect First Amendment values.
The post Can Professors be Sanctioned for Political Flyers? appeared first on Reason.com.
]]>For the past several decades, the U.S. Supreme Court has also recognized a limited First Amendment right for government employees to speak about matters of public concern. Starting with the case of a high school teacher Marvin Pickering, who wrote a letter to the editor of a local newspaper disagreeing with the school board about the merits of a bond referendum, the Court has held that in some situations government employees have a legitimate First Amendment interest in speaking as a citizen, but even in those circumstances the government's particular interest in maintaining an efficiently functioning workplace might allow the government as an employer to override an employee's First Amendment interests. Determining when the government's interest outweighs the employee's interest has become known as Pickering balancing, which is highly contextualized depending on the nature of the employee's job and workplace.
I have a new paper on how courts should understand the government's interests when conducting a Pickering balancing in the context of state universities and the extramural speech of professors. The Pickering framework is useful not only for understanding free speech rights in state universities but also for applying traditional protections for extramural speech in private universities. But as the courts have applied Pickering, there is a particular risk of a heckler's veto when it comes to government employee speech. Courts have repeatedly held that speech that generates a hostile reaction from coworkers or members of the public can be a legitimate reason for terminating a government employee. There might be circumstances in which such a concern is justified, but that certainly cannot be the standard when evaluating a university's interest in suppressing a professor's speech.
Considering cases such as the University of Florida's conflict of interest policy, the Ilya Shapiro controversy at Georgetown University Law Center, the Amy Wax saga at the University of Pennsylvania Law School, and the attack on a moral philosopher at SUNY-Fredonia, the paper argues that in the particular context of state university professors there are very few legitimate reasons for university employers to retaliate against an employee for speaking in public about a matter of public concern. Courts, and university employers, should be especially sensitive to the risk of empowering the mob to cancel a professor who offends their sensibilities and should regard extramural speech as relevant to a professor's employment status in only a narrow set of circumstances. An appropriate assessment of the nature of the university's function and of a faculty member's workplace should lead courts to conclude that the university's side of the Pickering scale is often empty and that sanctions for First Amendment-protected speech cannot be justified. The same calculus should hold true at private universities operating under their own academic freedom policies.
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