The Volokh Conspiracy

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Free Speech

FIRE Suit Aimed at Protecting Univ. of Washington Professor's Criticism of "Land Acknowledgments"


From the Foundation for Individual Rights and Expression today; you can also read the Complaint, in Reges v. Cauce:

When Professor Stuart Reges challenged the University of Washington's position on land acknowledgements, administrators punished him, undermining his academic freedom. Today, backed by the Foundation for Individual Rights and Expression, Reges sued the university to vindicate his First Amendment right to express his opinion—even if it differs from the party line.

Colleges increasingly promote land acknowledgment statements that recognize indigenous ties to the land on which a college sits. On a list of syllabus "best practices," UW's computer science department encourages professors to include such a statement and suggests using language developed by the university's diversity office "to acknowledge that our campus sits on occupied land." The fact that the statement could be adapted seemed clear—until Reges wrote one that administrators did not like….

On Dec. 8, 2021, Reges criticized land acknowledgment statements in an email to faculty, and on Jan. 3, he included a modified version of UW's example statement in his syllabus: "I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington." Reges's statement was a nod to John Locke's philosophical theory that property rights are established by labor.

On Jan. 4, the director of the computer science department, Magdalena Balazinska, ordered Reges to immediately remove his modified statement from his syllabus, labeling it "inappropriate" and "offensive," and declaring that it created "a toxic environment" in the course. Reges refused because Balazinska's demand was viewpoint discriminatory—other computer science professors included their own land acknowledgments on their syllabi. But UW did not investigate or punish them because those statements, unlike Reges's, were consistent with the university's viewpoint.

The university launched an official investigation into Reges for allegedly violating UW's unconstitutionally overbroad harassment policy. This investigation has now dragged on for over four months. Balazinska also created a competing section of Reges's course (featuring pre-recorded lectures by another professor) so students wouldn't have to take a computer science class from someone who didn't parrot the university's preferred opinions. …

As a public institution bound by the First Amendment, UW must uphold its professors' right to free speech and cannot discriminate against them based on viewpoint. UW is free to encourage its faculty to include land acknowledgment statements in their syllabi, and even to suggest examples, but it may not mandate that they either use only approved statements or remain silent on the issue under threat of discipline.

UW ignored FIRE's demands that the university protect the expressive freedoms of its faculty members.

"UW accused Reges of creating a 'toxic environment,' but the university is poisoning the free exchange of ideas," said FIRE attorney Josh Bleisch. "We're taking UW to court so that Reges and other faculty can share their views on important issues without fear of reprisal."

For more on how investigations of protected speech can themselves violate the First Amendment, see White v. Lee (9th Cir. 2000); for more on how the creation of "shadow sections" can do the same, see Levin v. Harleston (2d Cir. 1992); and for the Ninth Circuit's conclusion that university professors' speech is presumptively protected even when part of the job, and that the limits imposed by Garcetti v. Ceballos "do[] not apply to 'speech related to scholarship or teaching," see Demers v. Austin (9th Cir. 2014).

By the way, I'm sympathetic to arguments that professors ought not bring their ideological views unrelated to the subject matter into class discussions. But of course UW isn't applying any such rule here, because it's itself encouraging "land acknowledgments" that express ideological views unrelated to the class's subject matter.

As I noted when I first blogged about the controversy in January, how people should react to the history of conquest is an interesting question, whether it's conquest in the Americas or in Europe or in the Middle East or anywhere else on a planet where most land has changed hands many times over the centuries. (I'm looking at you, Israel, Poland, Turkey, Alsace, Spain, Kosovo, East Prussia, Belgium, Crimea, and too many other places to list.) It's not something that I think belongs in computer science classes, or for that matter in my First Amendment class; but if the university says that views on this subject can be expressed in those classes, then it has to be open to professors expressing views with which the university disagrees.

Note: I have consulted for FIRE on a different matter, but I wasn't at all involved with this controversy, and wasn't asked to write about it.