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Free Speech

Court Upholds Discipline Imposed on Professors Who Called Fellow Professor "Racist" in Anonymous Flyer


From Gruber v. Bruce, decided last week by Judge Waverly Crenshaw (M.D. Tenn.):

An internecine difference of opinion among academics at Tennessee Tech University ("TTU" or "Tech") led to this action … asserting First Amendment retaliation … claims. The case arose after two faculty members were disciplined by the Provost for distributing flyers on campus that labeled another faculty member a racist….

Dr. Julia Gruber is a tenured Associate Professor of German at TTU, while Mr. Andrew Smith is a tenured Instructor in the Department of English at that institution. Dr. Lori Bruce is the Provost at TTU and Vice President for Academic Affairs.

In 2021, a student chapter of Turning Point USA ("TPUSA") was established at TTU. TPUSA s is a national organization with a presence at many college campuses across the United States. It came to TTU after Gittle Sciolis, a student at the school, filed a petition to make TPUSA a student club. Ms. Sciolis has described the club as a "conservative organization for college students [and] high school students" with a mission "to spread conservative ideas." For their part, Plaintiffs believe that TPUSA is a racist organization and "national hate group" with "ties to white supremacy." Dr. Andrew Donadio …, a County Commissioner and an Assistant Professor of Nursing, serves as TPUSA's faculty advisor at TTTU.

On February 4, 2021, the Putnam County School Board held a meeting to consider whether a committee should be appointed to look into the issue of whether Algood Middle School's mascot should be renamed from "Redskins" to something else. Dr. Gruber attended the meeting with some friends, including Sayota Knight, who Plaintiffs claim is Native American.

Dr. Donadio also attended the meeting. Even though he understood that some people found "Redskins" to be a racial slur, he cheered and applauded when the Board voted against forming a committee to determine whether the "Redskins" mascot should be retired. Witnessing Dr. Donadio's enthusiastic support for the Board's decision, Dr. Gruber was "shocked" and "offended." She also felt that Dr. Donadio's behavior was "intimidating" to her Native American friend because it was "racist."

That same evening, Dr. Gruber contacted Mr. Smith by Facebook Messenger, and informed him about what she had witnessed. Upon hearing Dr. Donadio's reaction, Mr. Smith, too, became upset and dismayed.

Dr. Donadio's reaction to the Board's decision to shelf the issue about renaming the "Redskins," coupled with his role as the faculty advisor to TPUSA, incensed Plaintiffs and prompted Mr. Smith to create the flyer that is at the heart of this lawsuit. Before discussing that flyer and its aftermath, a little background about TPUSA and its arrival at TTU is appropriate.

As noted, Plaintiffs view TPUSA as a racist organization with "a history of political and racial controversy" surrounding it. They point out that "[b]efore TPUSA had an official student chapter at TTU, in the fall of 2019, TPUSA co-sponsored a campus event with the College Republicans in which an advertisement was made for a debate watch party, featuring (then-Presidential Candidate) Senator Elizabeth Warren dressed up in Native American dress, alongside derogatory comments."

TPUSA's intention to establish a chapter at TTU was disconcerting to some and received significant push-back. One concern was that the organization has a Professor Watchlist website, which publishes profiles of college professors, and has the stated mission to "expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom." Provost Bruce viewed the watchlist as "an effort to single out individuals for the purpose of harassing them." Indeed, she and other academics had expressed concerns about how a professor would end up on the watchlist even before the organization arrived on campus.

The idea of maintaining a watchlist seemingly played into a portion of the flyer created by Mr. Smith. That flyer begins by stating:

This racist college professor thought it would be a great idea to help start a Tennessee Tech chapter for this national hate group, where racist students can unite to harass, threaten, intimidate, and terrorize persons of color, feminists, liberals, and the like, especially their teachers. Their organization created a national 'Professor Watchlist' to harass and intimidate progressive educators, including many women, African-American, and Muslim professors.

This statement is followed by a large picture of Dr. Donadio sitting in a chair. After the picture, the flyer concludes with the following text:

Professor Donadio and Turning Point USA. You are on our list.

Your hate & hypocrisy are not welcome at Tennessee Tech.

No Unity With Racists. Hate Speech Is Not Free Speech.

Around 3:30 p.m. on February 5, 2021, Dr. Gruber placed a handful of flyers in the lounge, the auditorium (where Dr. Donadio sometimes taught classes), the kitchen, and in common areas of Bell Hall. (Frank Sterling, an IT employee at the school found at least some of those flyers and collected them. He also sent a picture of the flyer to Dr. Donadio who, in turn, sent it to Ms. Sciolis. Dr. Donadio reported the incident to the University Police Department, and a police report was written that same day, listing the "incident type" as "harassment."

The next afternoon at around 1:20, Mr. Smith posted a flyer in the Roaden University Center ("RUC"). Two days later, on February 8, 2021, the flyer was seen by Reece Arnold, a student, and reported to campus police, who then removed it.

The record suggests that the flyer was not seen by many others and there is nothing to suggest that classes at TTU were canceled or rescheduled as a result of the flyer. Nevertheless, and even though he would later tell the media that he was an elected official and could "take the heat," Dr. Donadio filed a formal complaint on February 9, 2021 with TTU's Office of Human Resources against Dr. Gruber and Mr. Smith….

After [Greg Holt, Compliance Officer and Interim Associate Vice President of Human Resources] completed his investigation, he determined that "[t]he preponderance of the evidence supports the conclusion [Plaintiffs] violated Tennessee Tech Policy 600, Code of Conduct." That policy, in pertinent part, reads:

  1. In carrying out Tennessee Tech's educational, research, and public service missions, Tennessee Tech relies on the ethical and responsible conduct of all employees. Employees are expected to conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards and to comply with applicable laws, regulations, contractual obligations, and Tennessee Tech policies.
  2. Employees are expected to be committed to creating an environment that promotes academic freedom, diversity, fair treatment, and respect for all faculty, staff, students and the general public….
  3. Employees are expected to maintain the highest levels of integrity and objectivity as they perform their duties. As such, employees are expected to take all reasonable precautions and seek appropriate guidance to ensure their outside interests do not place them in conflict with carrying out their duties and responsibilities to Tennessee Tech[.] …

Provost Bruce … imposed discipline upon both Plaintiffs for violating Policy 600 as referenced previously, and Policy 007 pertaining to "Free Speech on Campus" that provides:

Tennessee Tech is committed to maintaining a campus as a marketplace of ideas for all Students and Faculty in which the free exchange of ideas is not to be suppressed because the ideas put forth are thought by some or even most members of Tennessee Tech's community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.

Plaintiffs were informed of Provost Bruce's decision by letter dated May 13, 2021. In it, they were told that discipline was imposed as a result of "your actions, not your beliefs or ideas"; and "your attempts to harass, intimidate, and/or threaten another employee and a small group of students on campus students [sic] whose views and opinions were contrary to your own."  The discipline included Plaintiffs being (1) not permitted to serve as a faculty advisor to any student organizations; (2) not allowed to participate in study abroad activities; (3) ineligible for non-instructional faculty assignments; and (4) ineligible for salary increases for a year. Additionally, both were required to meet with the Dean of the College of Arts and Sciences (or his or her designee) at the start of each semester "to reinforce with you the importance of not bringing personal grievances into the workplace." Plaintiffs were also required to complete sensitivity training.

The court upheld the discipline imposed on Profs. Gruber and Smith:

"'If any part of an employee's speech, which contributes to the [disciplinary action], relates to a matter of public concern, the court must conduct a balancing of interests test as set forth in Pickering[.]'" Plaintiffs' disagreement with Dr. Donadio and the group he led was not merely personal, nor was it a quotidian workplace grievance. Accordingly, it is to the that balancing test that the Court now turns.

Balancing interests must begin with the fundamental notion that there is a "robust tradition of academic freedom in our nation's post-secondary schools." Indeed, the Supreme Court has "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Because "a professor's rights to academic freedom and freedom of expression are paramount in the academic setting," "professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship."

The paeans to academic freedom and free speech do not give faculty members a license to violate university rules without consequences, however. "It goes without saying that a university has an interest in fostering a collegial educational environment while doing everything within its power to maintain its reputation in the academic community both on campus and around the nation."

Hence, the First Amendment does not require public employers to tolerate every type of personal attack against others, even when the attack touches upon a matter of public concern. Instead, "[i]f the manner and content of an employee's speech is demeaning, disrespectful, rude, and insulting, and is perceived that way in the workplace, the government employer is within its discretion to take disciplinary action."

Even if the term has been watered down over the years, calling a colleague a racist is hardly collegial, and threatening to place him and the group he advises on a "list" is no better. Moreover, like other institutions of higher learning, TTU has rules that need to be followed in order for the institution to fulfill its educational mandate and mission. It certainly is not too much for a university to ask that its faculty members act professionally, engage in ethical conduct, be respectful, and maintain the highest level of integrity as required by Policy 600.

Sneaking around and dropping-off anonymous flyers attacking a fellow professor falls short of such conduct, or so the university could reasonably conclude. Likewise, namelessly identifying a group as promoting hate without substantiating the allegation cuts against the promotion of the "free exchange of ideas" contemplated by Policy 007.

It is true, as Plaintiffs point out, that TTU has shown little in the way of actual harm. To the contrary, Dr. Donadio and Ms. Sciolis were so unfazed that they went on Fox television. That Plaintiffs unwittingly provided those two fodder for potentially spreading their ideas to a broader audience says nothing about the propriety of the university's reaction.

Besides, "[s]chool officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place," even though "'forecasting disruption is unmistakably difficult to do.'" It was reasonable for TTU to believe that, absent disciplinary action, Plaintiffs' speech would (1) disrupt its ability to fulfill its core mission of teaching students, given a university's "strong interest in preventing … speech that rises to the level of harassment"; (2) undercut its ability to enforce internal policies relating to employee conduct and free speech; and (3) diminish its obligation to protect all students' freedom of speech and a free marketplace of ideas.

Ultimately, "[t]he problem in any case," just as it is here, "is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." "Although such particularized balancing is difficult, [we] must reach the most appropriate possible balance of the competing interests." That balance tips in favor of Dr. Bruce and TTU and summary judgment will be granted in her favor on Plaintiffs' First Amendment retaliation claim.