The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Targeting Students for Disparate Treatment Based on Protected Class Is Not Protected by Academic Freedom"
From the Foundation for Individual Rights and Expression (Joe Cohn):
Earlier this week, Stanford University suspended an instructor while the institution investigates allegations Jewish and Israeli students were targeted for discriminatory treatment in a required, first-year "Civic, Liberal and Global Education" course. Discriminating against students based on a protected characteristic such as race, gender, or national origin, violates federal law.
Academic freedom protects an exceptionally wide range of pedagogically relevant classroom speech by faculty. But the alleged conduct in this case, taken together, appears to cross the line. According to several news reports, in impromptu discussions of the Israeli war with Hamas during two classes, the instructor allegedly:
- asked Jewish and Israeli students to raise their hands;
- separated the Jewish and Israeli students from their peers, who he said represented the "colonized," by ordering the Jewish and Israeli students to stand in the corner;
- labeled the Jewish and Israeli students "colonizers;" and
- argued that Israel is a colonizer that has killed more people than were killed during the Holocaust.
- There are also conflicting reports about how the instructor may have taken, or otherwise separated, one or more students from their belongings before they were sent to the corner.
Academic freedom protects instructors' rights to make the argument that Israel is a colonizer responsible for many deaths, just as it protects all other arguments germane to the subject of a course. But academic freedom does not allow the singling out of students for adverse treatment on the basis of protected class status. FIRE has long argued that while "airing a view is not the same thing as acting on it," universities must act to prohibit discriminatory conduct by faculty.
Like any other instructor facing misconduct allegations, Stanford must provide the instructor robust due process protections to ensure basic fairness in any disciplinary proceeding.
Sounds correct to me, as I noted in yesterday's post.
