The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Verdict Against Auburn University in Economics Professor's First Amendment Retaliation Lawsuit

|

In Stern v. Roberts, a jury just held that Auburn University had retaliated against Prof. Michael Stern, a tenured economics professor, based on his speech; the jury awarded $145K in compensatory damages and $500K in punitive damages. Here are the factual allegations from the earlier opinion denying summary judgment:

In 1964, Marvin Pickering, a public high school teacher in Will County, Illinois, wrote a letter to his local newspaper's editor, criticizing the school board's allocation of funding for athletic programs to the detriment of academic integrity. That unpopular letter got him fired but ultimately won him and all public employees First Amendment freedoms. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205 (1968).

Fast forward a half century later to Lee County, Alabama, where Plaintiff Michael L. Stern, Ph.D.—a tenured economics professor at Auburn University—had gained a reputation as a vocal critic of the College of Liberal Arts' public administration major for its disproportionate number of scholarship student-athletes, particularly those in the football program. Dr. Stern believed that the university was behind the clustering of student-athletes into this athletic-friendly major and that its athletic department had fought to retain the major against its recommended closure…. Dr. Stern's criticism attacking the integrity of the public administration major and the Auburn athletic program was unpopular among university administrators, including Defendants.

In May 2018, Dr. Stern was removed as chair of the Department of Economics, a position he had held since 2010. His removal as chair was the last straw in what Dr. Stern categorizes as a campaign of harassment by university officials to discourage him from exercising his First Amendment rights to speak out against what he discerned was a scandalous academic major protecting star athletes….

The court had allowed the case to go forward based on Stern's claim that his removal as chair and his getting unusually low or no annual raises or bonuses stemmed from his constitutionally protected speech:

Defendants accept that Dr. Stern's speech appearing in the articles in the Wall Street Journal and in the Chronicle of Higher Education, as well as Dr. Stern's remarks made to the University Senate and its committees, are protected speech. Through these mediums, Dr. Stern criticized the public administration major. He questioned the quality of the courses in the public administration major, the major's long-term educational value, and the major's ability to prepare graduates for employment in the field. He also honed in on the major's alleged syphoning of star athletes to safeguard their athletic scholarships and academic eligibility…. [T]hese instances of speech touch on matters of public concern, and Dr. Stern lodged these criticisms as a private citizen, and not pursuant to his professional job responsibilities….

Dr. Stern has submitted evidence that his speech about the public administration major was outside the scope of his ordinary job responsibilities as chair of the economics department. Dr. Stern emphasizes that his job description as chair did not concern the academic integrity of the public administration program. The public administration major was housed in the political science department, not in the economics department, and he exercised no governance over that major. To bolster his position, Dr. Stern relies on evidence that he did not obtain information about the public administration major through his job as chair of the economics department. Rather, he had to rely on third parties and a FOIA request. And, while his speech at the University Senate meetings occurred on Auburn University's campus, it did not occur in the halls of Dr. Stern's department. Also, Dr. Stern used multiple public forums to voice his complaints about the public administration major, including the Wall Street Journal. In other words, Dr. Stern did not limit his forums to those affiliated with Auburn University ….

Congratulations to John Saxon, Alicia Haynes, and Cynthia Wilkinson, who represent Stern.