The Volokh Conspiracy
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Kansas Prof Removed after Viral Video of Classroom Remarks
A health sports instructor at the University of Kansas is out of a job after a video clip of his in-class behavior went viral. The university's statements do not inspire confidence, even though the professor might well have been out of bounds.
Libs of Tiktok posted a short clip of an instructor in a classroom at the University of Kansas. In the clip, he seems to say in the middle of a class session, "There are going to be some males in our society that will refuse to vote for a potential female president because they don't think females are smart enough to be president. We could line all those guys up and shoot them. They clearly don't understand the way the world works." Suddenly remembering that he is being recorded, he then adds, "Did I say that? Scratch that from the recording. I don't want the deans hearing that I said that."
There is, of course, no context to the 32 second clip, though surrounding reporting suggests that the statement was made in the midst of a health sports class at some point this semester. The university announced yesterday that the instructor was under investigation, saying "His intent was to emphasize his advocacy for women's rights and equality, and he recognizes he did a very poor job of doing so." Today, the university announced that the professor had "left the university."
"The free expression of ideas is essential to the functioning of our university, and we fully support the academic freedom of our teachers as they engage in classroom instruction. Academic freedom, however, is not a license for suggestions of violence like we saw in the video," [Provost Barbara] Bichelmeyer said. "While we embrace our university's role as a place for all kinds of dialogue, violent rhetoric is never acceptable."
The Foundation for Individual Rights and Expression (FIRE) immediately issued a statement defending the professor. "The viral video shows an instructor making an off-handed joke—not communicating a serious intent to commit unlawful violence," [Graham] Piro said in a statement. "That's protected speech, and people advocating that the instructor be punished for his expression are advocating for the erosion of the First Amendment." Today, FIRE pointed out that the classroom statement could not credibly be viewed as a "true threat." As a consequence, FIRE asserts it is protected by the First Amendment and the instructor should be immune from adverse employment consequences for his actions. [The Academic Freedom Alliance has not made any statement on this matter, and I speak for myself alone here.]
I think the situation is more complicated that FIRE has so far made out, but that Kansas is focusing on the wrong issue. The core problem is not one of "violent rhetoric" and whether or not this speech is an example of a true threat. The core problem is one of unprofessional classroom behavior.
As it happens, I discuss such a scenario in You Can't Teach That! I argue there that traditional academic freedom principles and government employee speech doctrine as it applies to university professors should be understood to protect controversial classroom speech that is both germane to the class and professionally competent. Faculty speech in the classroom that is neither germane nor competent, however, is unprotected, and professors can be properly disciplined for such speech. For example, a chemistry professor who spends part of her class time stumping for Kamala Harris or an astronomy professor who instructs her students that the moon is made of green cheese is operating outside the bounds of academic freedom or First Amendment protections and can properly be disciplined. An African-American history professor who spends class time propounding critical race theory, on the other hand, should be understood to be operating within those protections.
But what about the Kansas sports health professor. The question is less about the violence of the political rhetoric than the fact of the political rhetoric. From the book:
Some academic disciplines have relatively well-defined boundaries regarding their subject matter, but others might be much more capacious such that it is less clear what topics might not be germane to a given class discussion. A lecture on early nineteenth century American literature might be expected to roam further afield than a lecture on thermodynamics. Allowances must likewise be made for speech that is non-germane from a subject matter perspective but that is apposite from a pedagogical perspective. Professors who tell jokes to help build community and sustain interest might be engaging in speech that is non-germane when taken in isolation but that makes sense in context. Professors pushing such boundaries no doubt owe the students an obligation not to be unnecessarily controversial. Jokes, asides, illustrations, and analogies should not themselves become a source of tension. A professor who "livens up" his lectures with a running series of acerbic political comments is not off the hook for introducing unnecessarily controversial material into the class simply because he finds his own remarks witty, just as courts have not been impressed with professors who aver that their sexually lewd remarks or crude language in class are just part of their teaching technique. Education is a social endeavor and professors cannot be expected to robotically stick to a script, but frequent digressions into tangential topics of conversation risk crossing the boundaries of academic freedom, especially when those digressions are contentious.
The question at hand is whether an instructor in a health sports class should be trying to "emphasize his advocacy for women's rights and equality" and encourage his students to vote for Kamala Harris. The answer to that question is probably "no," and it really does not matter whether he did a good job in his advocacy or a poor job or used violent rhetoric or some other form of rhetoric. A state university has both the authority and the responsibility to make sure that professors in its classroom engage in professionally appropriate speech and do not abuse their captive audiences by engaging in professional misconduct. Professional misconduct can get a professor disciplined, and even fired. A professor has no right to commandeer his health sports class in order to engage in political advocacy.
The Kansas instructor was at best dancing on the line, even if this single episode might not justify harsh discipline. But university officials should at least be asking the right questions about what is at issue in the case.
