No First Amendment Academic Freedom Right to Give Quizzes in Public University Class

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.

Comments

[Longtobefree]

Having a college degree no longer implies anything about a graduates abilities in any area.
When the administration micro manages classes at this level, it is not about teaching, but intimidation.

[bernard11]

When the administration micro manages classes at this level, it is not about teaching, but intimidation.

Indeed, micromanagement of classes by higher authorities is disgraceful.

What next, some governor or legislature outlawing class content?

"No analysis of variance allowed."

[Toranth]

Yup, prohibiting the teaching of racist ideology as truth is the exact same as a school administration declaring how a professor is allowed to teach, and what they can use in determining grades.

[Rev. Arthur L. Kirkland]

Having a college degree no longer implies anything about a graduates abilities in any area.

Education-disdaining misfits are among my favorite culture war losers. I am especially grateful that my children (with their advanced degrees) and grandchildren get to complete economically with half-educated clingers.

[bernard11]

Moved

[Social Justice is neither]

How dare he think students should be able to prove they understand what is taught! He should just do as the administration demands and distribute grades by race, sexual orientation and gender identity. And leftists wonder why people distrust and disdain academia and academics.

[jimc5499]

I've been offered a job teaching 3D modeling at a local Community College for years. I keep refusing it, even though I teach the same thing where I work. People forget that Higher Education is a business and the Students are the customers. I went to college when I was in my 30's. I was amazed at the network of information there was about the instructors and professors. Who was a hard grader, who was an easy grader, the amount of homework and the number of absences that would be tolerated. At the end of each semester, students would be given forms to evaluate each professor or instructor. You could sit in the Union and listen to students planning to down grade a hard instructor or upgrade an easy one. If I were to teach the class, I would model it after what would be expected if the students had a job working for me. I wouldn't last a semester these days and neither would the students last in the workplace.

[Rev. Arthur L. Kirkland]

Did you advise your children to avoid college, or to wait at least a decade before attending college?

[Dr. Ed 2]

I'd teach that job at the CC -- if you could teach it pass/fail.
And then specify the criteria for passing.

[John F. Carr]

"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"

To the extent the Statement of Principles is binding, isn't it a contract rather than a constitutional right?

[Martinned]

Classic example of "stupid but not unconstitutional".

[LawTalkingGuy]

Might not even be stupid necessarily. Without knowing the content of the quizzes, how he grades them, and how much or total the total grade they are there is always the possibility the admin was right that he needs to change his methods.

I mean if he’s giving a lot of super hard quizzes randomly which he grades harshly and that account for most of the grade…that’s not necessarily a good way to make sure students learn the material.

[Martinned]

In that case, you'd think the response ought to have been for the university to tell the professor to quiz his students differently, rather than telling him to stop doing it altogether.

[Magister]

Quizzes consume class time, though. They may have wanted him to lecture and review more with that time.

[bevis the lumberjack]

I wish I’d have thought of that bullshit line to try on some of my more difficult professors back in the day. Some of them constantly seemed as if they needed a good laugh.

[Magister]

You'd be OK with a professor who assigned reading and then spent all remaining class time for the entire semester giving quizzes? There is a point at which it's too much; probably not reached here, but it might be a reasonable observation that the quizzes were too much (more likely too arbitrary, but still).

Back when I taught, there was a professor who by reputation had, early in his career, failed around 90% of the students in the class he taught. The department told him he couldn't do that, and he didn't make a federal case of it.

[LawTalkingGuy]

He didn’t do pop quizzes, but I had a professor who rarely talked about the assigned reading in class but based huge chunks of his final exam on the assigned reading. It sucked and I didn’t learn anything.

Professors who actually discussed assigned reading as part of their lectures and made homework assignments predictable/routine made me learn way more.

[bevis the lumberjack]

There’s no indication that this guy did quizzes “all the time”.

School without testing is worthless.

[bernard11]

Sure, LTG, there can be egregious cases, but the burden of proof is on the administration, and the standard should be very high.

There is nothing wrong with giving hard quizzes. You would like to know who the good students are before handing out grades.

And, IMO, you can’t rely on homework for that, because students will collaborate. My approach was to authorize collaboration and let it be known that if you understood the homework problems you would do well on the exams.

What the dean did is completely inappropriate. She should not be issuing orders in any event. If she thinks there is a problem with the Fass class she should discuss it with Fass.

[mydisplayname]

"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."

I have always wondered why some public employees believe that they are "special" public employees to whom the Pickering test does not apply. "Academic freedom" is not an exemption from generally applicable law, not even for tenured full professors: the Fourteenth Amendment is alive and well... and applies even to those who have been elevated by their peers.

[Dave_A]

Graded homework? In college.... What the hell?

We really are turning college into ‘High School 2.0’… Making it easier for those who can't 'hack' a test-based grading environment by giving them 'credit' for copywork...

[BadLib]

Even over 40 years ago we were regularly graded on “homework”.

For example there were term papers, there were lab reports that were written outside of class, and there were software projects where all or most of the work was performed outside of class.

[bevis the lumberjack]

But did you think it was oppressive for a professor to give quizzes or test? It was a completely normal, expected part of college. Otherwise how will you know if the people who you are awarding degrees to have actually learned enough to deserve them?

[AtR]

Generally, and in most fields, you know, up front, that the people you are awarding degrees have *not* learned enough to deserve them. You only hope that no one will notice.

[bevis the lumberjack]

My industry was crashing hard when I graduated. The only job I could find was at a tiny company with no time for training. It was “there’s the pool, sink or swim”.

I learned enough that I could swim. That’s what you want with professional degrees.

If you don’t expect them to know much about their major(s), why bother with professors and classes and all the expense? Just hand out degrees.

[LawTalkingGuy]

Were they giving them randomly? I feel like no one here objected to tests per se, just unpredictable pop-quizzing.

I don’t think I had a professor in either a hard science/math or a humanities/social science who gave any pop-quizzes let alone lots of them.

[bevis the lumberjack]

We had pop quizzes in engineering school regularly. Which is what UTD essentially is.

[bernard11]

I certainly had pop quizzes in some math classes.

[bevis the lumberjack]

Within the last decade UTD was one of the schools trying to recruit my daughter to play basketball. UTD was a very STEM-oriented school - as I recall it was founded in response to TI successfully establishing itself. Every student, even in liberal arts majors, was required to take two semesters of calculus, for example. They were very proud of their academic rigor and of how difficult it was to get degrees.

Not so much any more, I guess. Gotta dumb it down. Like Trump, progressivism is a poison that damaged everything it touches.

[Dr. Ed 2]

Trump is a populist, not a progressive.

[bevis the lumberjack]

Way to miss the analogy, Ed. Let me make it simple for you.

Trump = poison
Progressives = poison
Both = damage everything they touch

[Yogis_dad]

What was damaged by President Trump's touch?

[bevis the lumberjack]

The Republican Party? There are other things but that’s the biggest right there.

[Social Justice is neither]

Yep, much better the go along to get along Statists pandering to the DNC propagandists in the Romney and McConnell molds.

[bevis the lumberjack]

Totally great to have your single platform idea be “Trump wuz cheeted”. That’s a winning idea for sure.

[Magister]

Well, the prevailing attorney got named but not congratulated this time. I guess that's the editorial comment on the ruling.

[Magister]

Ah, I see an earlier post that I got to later clarifying this practice.

[Daddyhill]

Emergency room docs used to call annoying, impossible to treat, frequent flyers GOMERs, albeit only amongst themselves. They do have a duty to treat after all, but many would have appreciated the right to call such visitors out explicitly: "Get out of my emergency room!" I suspect (and maybe hope too) that some in the judiciary would appreciate having a similar right: "Get out of my courtroom!"

[AtR]

When you have a dean that micromanages classroom teaching like this, it's time to find another job.

[LawTalkingGuy]

Or when you’re a professor who sucks. I know plenty of professors, and some of them do in fact suck at teaching and the admin needs to intervene.

[bernard11]

Sure. But not that way.

Confession: I was a lousy teacher and the chair intervened. He asked me to talk to a faculty member who was an excellent teacher, and to sit in on some of his classes.

I learned some things and improved a bit, though I never got good at it. My career was elsewhere.

[Yogis_dad]

Hard to imagine why any parent would send a child down the wrong path of attending most of the universities in the land today. Aside from inordinate cost, there is the issue of indoctrination, exposure to vile behavior, and the absence of instruction in matters of fact, history, science, or engineering. Virtually everything that can be gained from a university education, except a network of questionable relationships and credentials necessary to certain licensed occupations, can be had by reading and using workbooks readily available to all for far less than the cost of attending college.

[Dr. Ed 2]

That's why I believe higher ed will soon implode.

[bernard11]

Because most know better than to swallow the RW BS about universities.

[TwelveInchPianist]

UTD administrators had never stated WFDs were relevant to a professor's teaching method and never included them as a metric in performance evaluations.

Having students successfully complete the class is kind of the whole reason you're there. If you don't realize that you're being evaluated on that, there's a problem.

And if you're not being evaluated on that, there's also a problem.

But it's hard to see how eliminating quizzes solves the problem.

[ReaderY]

I am in general sympathetic to the university here. When professors have standards way out of alignment with other sections of the same course or the circumstances of their students, students succeed or fail purely by the luck of who they got assigned to. This hardly comports with American concepts of fairness, or meritocracy. Students, very reasonably, feel screwed. Moreover, there’s no point teaching at a Harvard level to students in Inner City Community College. The purpose of school is to learn, and that means working with students where they are. It will not do to just fail everyone and blame the students. If students can’t succeed, as a group, that’s on the teacher.

Professors who teach common courses need to be subject to the requirements of a common curriculum.

This is a situation where people need to be reasonable with each other. A negotiated outcome that takes the needs of all parties into account would require conformance in large-scale intro and required courses but let professors, particularly prima donna tenured professors, teach honors, advanced, or otherwise clearly marked special sections with their own standards.

Unfortunately, the American tendency to go to courts to resolve problems rather them work them out with each other, and to grandstand, especially a tendency to claim that principles of liberty and justice support looking only after their own desires and screwing everyone else, is not likely to result in any sort of reasonable or mutually satisfactory solution.

[Alex]

Thanks for the interesting article! I think it makes no sense to conduct additional quizzes for students. After all, the study load is quite high and often young people do not have time to do such homework as writing essays or term papers. Therefore, it is better to provide comprehensive support for students. For example, I've always had trouble writing content like this. But at the same time, I'm not worried. After all, I can always turn to this online service https://www.nursingpaper.com/testimonials/ for help, which I have been using since last year and order the writing of a finished article. Sometimes it's the best way for me to get a good grade.