The Volokh Conspiracy
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Miami Univ. (Ohio) Task Force Calls for Suppressing Student, Faculty Speech, Without "Fear of First Amendment Violations"
From the public university's Diverse, Equity, and Inclusion Task Force (emphasis added):
Recommendation 9: Miami University should explore the adoption of a zero-tolerance anti-discrimination policy and strictly enforce its existing University policy on discrimination.
Miami University must be able to determine under what conditions employees can be terminated and students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments.
Note: This recommendation assumes the accused party was afforded proper due process and an appropriate finder of fact determined discrimination occurred.
Rationale: As a public institution of higher education, Miami University should demonstrate moral courage when defending its interest in having an efficient and disruptive-free work environment. Student dismissal or employee termination should not be shied away from because of fear of First Amendment violations. Case law dictates that a balancing test regarding private citizen's 1st amendment right vs public institution interest in an efficient and disruptive-free work environment (Connick v. Myers, 461 U.S. 138, 1983; Dixon v. University of Toledo, 702 F.3d 269, 6th Cir. 2012; Locurto v. Giuliani, 447 F.3d 159, 2d Cir. 2006; Pickering v. Board of Education, 391 U.S. 563, 1968). The key legal factors (e.g., avoiding disruptions in regular operations, maintaining good working relationships among coworkers, avoiding erosion of working relationships dependent on confidence and loyalty, avoiding obstructions in employees' abilities to perform their work) favor Miami's case for an efficient and disruptive-free work environment.
Well, maybe the Diversity, Equity, and Inclusion folks have no "fear of First Amendment violations "and think "moral courage" consists of promoting "efficient and disruptive-free work environment" without regard to student and faculty speech rights; but the University ought to have some fear here:
[1.] Student First Amendment Rights: Any policy saying that "students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments" would violate the First Amendment. The Diversity, Equity, and Inclusion Task Force may not "fear … First Amendment violations," but the university, which will have to pay for those violations (and which presumably wants to comply with the law) should. Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), expressly struck down a campus "discriminatory harassment policy" that banned allegedly bigoted speech (there, "verbal … behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by … (c) demeaning or slurring individuals through … written literature because of their racial or ethnic affiliation; or (d) using symbols, [epithets] or slogans that infer negative connotations about the individual's racial or ethnic affiliation").
The same would be true of any policy calling for discipline for "racist, sex, homophobic, etc." "comments." See also Matal v. Tam, 137 S. Ct. 1744 (2017) (reaffirming that, even within government-run programs, the government can't impose viewpoint-based restrictions on supposedly bigoted expression); Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (reaffirming the protection of students' right to "express any viewpoint they wish—including a discriminatory one," and stressing "this Court's tradition of 'protect[ing] the freedom to express "the thought that we hate"'").
[2.] Faculty First Amendment Rights: The rights of public university professors, as public employees, are more complicated, because the government as employer usually has more power to restrict employee speech than the government as college educator has over students. But courts have recognized that the government's power to punish faculty for speech in their research, public commentary, and even their teaching is still sharply limited.
Thus, for instance, in Hardy v. Jefferson Community College (6th Cir. 2001), the court held that a professor had a right to discuss offensive words—such as "nigger" and "bitch"—in class, when that was "germane to the subject matter of his lecture." Likewise, in Levin v. Harleston (2d Cir. 1992), the court held that even "derogatory remarks about persons of certain racial or ethnic groups" (to quote Hardy's description of Levin) in letters to the editor and in journal articles were protected by the First Amendment. And Burnham v. Ianni (8th Cir. 1997) (en banc), recognized the right of faculty members to convey their views on campus outside class, even when some found that speech to be offensive.
Some restrictions on faculty speech may not violate the First Amendment, for instance when the speech appears unconnected to public debates (as in another portion of Dambrot). And high-level university administrators may be less protected from being removed from their administrative positions (though, if they're also faculty, they may still have a First Amendment right not to be removed from their faculty positions). That's what Dixon v. University of Toledo (6th Cir. 2012), the Toledo case to which the Task Force seems to be referring in the Recommendation 9 Details, held: An Associate Vice President for Human Resources could be removed for her speech, just as, say, a Governor's cabinet member can be removed by the Governor for his speech or political activity. (The Dixon court specifically cited the political appointee cases, such as Rose v. Stephens (6th Cir. 2002).)
[3.] Academic Freedom Guarantees: Besides the First Amendment, much of the protection for freedom of debate and inquiry at universities comes from Academic Freedom policies that the universities themselves adopt, and on which prospective students, faculty, donors, and legislative supporters rely. Miami of Ohio has such a policy—presumably the Diversity, Equity, and Inclusion Task Force would be seeking to add viewpoint-based exceptions to it in order to implement the Task Force's goals. This is the current policy, which protects all ideas, whether or not people label them "racist, sexist, homophobic, etc.":
The teacher is entitled to full freedom in research and in the publication of the results, subject to the performance of his or her other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
The teacher is entitled to freedom in the classroom in discussing his or her subject, but should be careful not to introduce into his or her teaching controversial matter that has no relation to the subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of appointment.
College or university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as a citizen, teachers should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As individuals of learning and as educational officers, they should remember that the public may judge the profession and the institution by their utterance. Hence, faculty members 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 they are not speaking for the institution.
The University also recognizes that the faculty member is an integral part of the institution. While observing the stated regulations of the University, the faculty member maintains the right to criticize and seek revision of University policy, both administrative and academic.
Thanks to College Fix (Alexander Pease) for the pointer, and see also this post from the Foundation for Individual Rights in Education (Will Creeley).
