The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Fass v. Benson, decided Wednesday by the Texas Court of Appeals (Dallas), in an opinion by Justice Erin Nowell, joined by Justices Robbie Partida-Kipness and Nancy Kennedy:
Professor Fass is a tenured professor of public policy and affairs at UTD [University of Texas Dallas]. For the past thirty years, he has taught a wide range of graduate and undergraduate courses. Since 1988, he has regularly taught statistics courses for the School of Economics, Political, and Policy Sciences (EPPS)….
In late March 2019, Dean Jennifer Holmes, who served as Head of UTD's School of EPPS, informed Professor Fass he would receive a classroom "peer evaluation" outside of his usual scheduled evaluations. A non-tenured instructor who had not taught undergraduate statistics since 2004 observed Professor Fass's evening class. The next day, Dean Holmes told Professor Fass the evaluator was "very critical" of his teaching. She also told him several of his students from his morning section complained about his class. This was the first time Professor Fass heard about any student complaints. Dean Holmes also discussed with him her concerns about the rate of withdrawals, failures, and drops (WFDs) in his class. UTD administrators had never stated WFDs were relevant to a professor's teaching method and never included them as a metric in performance evaluations.
After the evaluation, Dean Holmes told Professor Fass to alter his approach to student grading by eliminating any further quizzes and relying solely on homework assignments….
Fass refused, and was later removed from teaching; he sued on various grounds, and the court ruled, among other things:
The Supreme Court has established that academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." However, even this protection has limits, and whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.
Professor Fass argues his right to academic freedom was violated as set forth in the American Association of University Professors' 1940 Statement of Principles on Academic Freedom, which is located on Provost Musselman's homepage. According to his amended petition, the 1940 Statement provides, "The University of Texas at Dallas recognizes academic freedom as the freedom to conduct the fundamental activities of a community of scholars and students without interference: to learn and to teach." Professor Fass did not plead factual allegations of how requiring him to change his evaluation of student performance from quizzes to homework interfered with his ability to teach or the students' ability to learn. Moreover, he did not plead any facts that his evaluation method of students involves an issue of social, political, or other interest to the community. "The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives." A dispute between a professor and a dean regarding quizzes versus homework assignments is not a matter of public concern under these pleaded facts.
In reaching this conclusion, we recognize a professor's freedom of expression is paramount in the academic setting. However, Professor Fass has not pleaded any facts indicating Dean Holmes or the other appellees censored, or sought to regulate in any way, the content of his quizzes or homework assignments. A dispute that is purely private, "such as a dispute over one employee's job performance," enjoys no First Amendment protection as to that speech….
Benjamin Wallace Mendelson of the Texas AG's office represents the UTD defendants.