The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What happens when a religious school "committed to the highest ideals of Christian education" also says its mission "demands freedom of inquiry and expression"? Faculty may be blindsided by punishment for speech they had every reason to think was protected.
Case in point: The firing of tenured Oklahoma Christian University professor Michael O'Keefe last week, allegedly for inviting a gay guest speaker who used two swear words while telling a story to O'Keefe's class [apparently "dick" and "bitch" -EV] ….
To quote Prof. O'Keefe's lawyer,
It is our belief Mr. O'Keefe was terminated for having a guest speaker for his senior level class, "The Business of Branding Yourself." One of the topics addressed was the issue of overcoming obstacles and developing resilience and character. One of the speakers was an Oklahoma Christian alumnus and a Oklahoma Christian adjunct professor for nearly 20 years. This speaker is also gay.
While this issue is polarizing within the religious community, it is certainly a reality within our world and nothing to shy away from discussing within the context of an academic institution, especially a one bold enough to call itself a Christian one. Letting students expect a world where you may be different is the message Mr. O'Keefe wanted his students to hear. That's the message this speaker delivered, not an advocacy of gay rights.
Back to the FIRE analysis:
If the reported reasons for OC's termination of O'Keefe are accurate, the university has abandoned its commitments to free speech and academic freedom.
As a private institution, OC is not bound by the First Amendment, but the university chooses to make strong promises of expressive freedom—promises it must keep. Although OC purports to place certain limits on these rights in line with its religious mission, these limits are not at all clear, and their apparent application in O'Keefe's case conflicts with lofty policy language protecting free speech and academic freedom.
OC can't have it both ways: Absent clear, consistent, and precisely defined limits on expressive freedom, O'Keefe's firing cannot stand….
FIRE has long acknowledged that not everyone shares our dedication to free expression, and "it is important for students and faculty members to have the choice to attend an institution that prioritizes certain values that depart from a traditional college experience." We give a "warning" rating to private universities that clearly and consistently state that they hold a certain set of values above freedom of speech, so prospective students and faculty are aware of the limits on expressive rights at those institutions.
But problems arise when a university sends mixed messages—when it makes rousing endorsements of free speech one moment, but suggests its constituents' speech is not actually free the next. When free speech is part of a confusing and shifting hierarchy of competing values, students and faculty are left without a clear understanding of their expressive rights.
Private universities that wish to privilege other values above free speech should leave no doubt of this fact, nor of the precise extent to which expressive rights are limited. Campus community members must have fair notice of these limits. Only then is an administration justified in enforcing them….
OC's Academic Policy Manual makes extensive commitments to free speech and academic freedom, but it also contains contradictory and vague language granting the university authority to restrict expression under certain circumstances.
Take OC's policy regarding outside speakers, which seems clear enough—at first:
A faculty member may invite speakers of all political ideologies to speak in their classes on topics relevant to their subject matter.
But OC adds this caveat:
This freedom does not, however, extend to: giving the impression that the faculty member speaks for the University; attempting to use the University to further a personal political agenda; materially detracting from the purpose of the class; or undermining the mission of the University. [Emphasis added.]
Other passages in OC's Academic Policy Manual similarly make what appear to be unequivocal promises of academic freedom, before noting vague standards for restricting expression. For instance, OC "embraces and celebrates openness, the inclusive spirit of Jesus, and an unrelenting search for truth," adding that the "mission of the University demands freedom of inquiry and expression." The manual states: "All members of the Christian academic community, and especially the Faculty, must feel safe to pursue ideas, to challenge popular opinion, and to explore evidence wherever it may lead." What's more:
Within the guiding principles and limitations set forth in this policy, members of the Oklahoma Christian community are free to pursue scholarly inquiry, publish their results, and discuss controversial subjects and viewpoints relevant to their academic area without undue restriction or fear of reprisal from sources inside the University.
The manual also expressly recognizes faculty members' right to teach controversial material, though it is "expected … that a spirit of Christian charity, common faith, and loyalty to the unique University mission will prevail and that questions will be raised in ways that seek to strengthen rather than undermine faith."
Another section notes the "heavy responsibilities" of faculty to "support the tenets of the institution and acknowledge the authority of the Scriptures." It states the university "should impose limitations on academic freedom only when there is clear and present harm to the institutional mission and integrity," but any such limitations "should be narrowly construed so as not to impede the interchange of ideas." …
These policies are not a model of clarity. They're what happens when a university tries to have it both ways: boasting of a commitment to the values of free thought and inquiry that many expect of an institution of higher education, while reserving the ability to shirk that commitment in service of some competing interest. But despite vague references to restrictions on academic freedom, OC does not clearly and consistently subordinate free speech and academic freedom to other values, with precise limits on these rights that faculty members can readily understand. To the contrary, the Academic Policy Manual more than once affirms the consistency of these values with its religious purpose.
At the end of the day, OC's policies do not give fair notice to its faculty of the supposed limits on their academic freedom. A faculty member reading these policies could reasonably conclude that he retains a robust right to present and discuss unpopular ideas, or to invite controversial speakers to class, and that these exercises of academic freedom are consistent with the university's mission. OC must enforce its policies consistent with that reasonable expectation. In O'Keefe's case, that means not punishing him for inviting a guest speaker consistent with OC's free speech and outside speaker policies.
If OC wants to punish faculty members for hosting a controversial guest speaker, it should not be telling them they are "free to pursue scholarly inquiry, publish their results, and discuss controversial subjects and viewpoints relevant to their academic area without undue restriction or fear of reprisal from sources inside the University."
But the university makes exactly that promise.
OC must take steps to clarify that its written commitments to free speech and academic freedom have real meaning, and will not be ignored anytime a controversy arises.
I would also add that, if a private university were to expressly forbid faculty from bringing in gay speakers, or speakers who tell the stories of their lives as gay people, or for that matter speakers who do advocate for gay rights, that would speak ill to me of the university as a place for thoughtful learning about the world. Even a university that teaches religious views that condemn homosexuality should prepare its students to deal with a world where gays exist, and where they have views contrary to the university's. But at the very least the university shouldn't promise freedom of scholarly inquiry and of discussion of controversial subjects and viewpoints, and then fire professors for inviting gay speakers.
I think a university policy forbidding faculty from using "dick" and "bitch" to refer to people would be more defensible, because it would leave them free to discuss all sorts of subjects. (I don't think it would be proper to forbid mentioning the words in quotes from sources or accounts of real events, which indeed may have been the case here.)
But any such policy would, I think, need to be made quite clear. And it seems to me clear that firing a faculty member based on the use of such words by a guest speaker would be improper, because it would sharply deter people from inviting all but the most staid of guest speakers. Indeed, I very much doubt that the university does have such a general policy of firing faculty for vulgarities by guest speakers; the firing here seems likely to have stemmed from the speaker being gay and speaking in some measure about his life as a gay man, and not just from a focus on the two words. (Note that I'm not saying that such a categorical policy should be illegal; I'm saying that it would be inconsistent with the preservation of the university as a place where teachers and students can seriously discuss matters, including ones in which guest speakers might stray from the university's norms.)
According to KFOR-TV (Natalie Clydesdale),
KFOR asked Oklahoma Christian officials to respond to the claims O'Keefe was let go for "bringing in a guest speaker that happened to be gay." OC's Chief Legal Counsel, Stephen Eck said the following:
"The decision to end employment was made after a thorough review process. The university will always put first the wellbeing of our students in every decision we make."