The Volokh Conspiracy
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Court Upholds Nonrenewal of URI Lecturer Who Circulated Combative "Declaration of Diversity," Allegedly Intimidated Students
[1.] Some excerpts from Judge Steven McAuliffe (D.N.H.) Monday in the longish Fosu v. Univ. of R.I. Bd. of Trustees (D.R.I.); there's a lot more in the whole opinion. First, the backstory about the plaintiff:
In 2018, URI recruited and hired Dr. Gifty Ako-Adounvo, as Vice Provost for Global Initiatives and Senior International Officer. Dr. Ako-Adounvo asked for URI's help to locate employment for Fosu, her domestic partner, and when no outside employment options were found, URI appointed him as a visiting professor for the 2019 spring semester. URI appointed Fosu to a faculty of practice to teach in the Political Science Department for the 2019-2020 academic year. A faculty of practice is a one-year appointment and a non-tenure position.
Fosu did not have the academic qualifications to teach core curriculum classes in the Political Science Department. The Chair of the Political Science Department, Professor Marc Hutchison, decided that Fosu could teach elective courses as a faculty of practice. Fosu was to teach a course on the Supreme Court and constitutional law, and he also proposed a course on advocacy, which was approved. During the 2019-2020 academic year, Fosu taught elective undergraduate courses on constitutional law and advocacy and a graduate course….
[2.] The court discussed various bases for Fosu's appointment not being renewed; here's an excerpt of that, though there were other things happening as well. Note that, "[b]ecause Fosu has not responded to defendants' motion [for summary judgment]," the court "accept[ed] as uncontested defendants' recitation of the material facts":
On October 26, 2020, Fosu sent an email titled "Declaration of Diversity" to URI President Dooley, along with many others including members of the URI faculty and staff, URI students, law enforcement officials, and government officials. Fosu again targeted the Chief Diversity Officer, Mary Almandrez, and criticized the hiring process involving Dr. Sylvia Spears and Dr. Harry Alston. He accused the URI faculty and staff of racism, collusion, unethical conduct, and violations of the law.
The email included a boxed warning that "all parties mentioned in this letter and involved in the Dr. Harry Alston and Dr. Sylvia Spears interview process must not shred or destroy any documents, must not delete any emails or electronic messages from November 1, 2019 to present." Fosu also asserted that he and others invoked their Fourth Amendment rights.
In the email, Fosu notified President Dooley that Fosu's private corporation, Diversity Think Tank, was "headquartered" at URI and that it was the corporation's goal "to directly target and expose URI's indefensible and offensively prejudicial and discriminatory policies and the people who perpetuate intentional racism and normalized racist inequities through the machinations of white supremacy." …
[Fosu attached a] "Declaration of Diversity" that purported to be issued by "organized URI students." The Declaration began with a statement that "We as organized URI student, hold these facts to be self-evident, that there is a deliberate and racist dehumanizing exclusion of highly qualified African-Americans/Blacks, Latinos/Hispanics and Native Americans from positions of senior leadership and other positions throughout the university, including Administrative Staff, Deans, Department Chairs, Faculty, Functional Staff and Students." …
The Declaration included 46 "complaints and demands," one of which said:
We students will create a White-list of all those white professors who define and list themselves as diversity initiative conveners, race experts and researchers while they are silent and benefit from white supremacy and racism at URI, self-evident by the fact that no African-American with an ancestry to slavery and no Latino has been hired to a senior leadership position since 1892—and NOT ONE WHITE FACULTY member has expressed a problem with that fact, and the glaring fact that there are NO BLACK FACULTY members in the Criminal Justice Department and only a couple at the Harrington School. You white professors do not need research to find out about systemic racism at URI—you are part and parcel of the creation and maintenance of systemic racism at URI though your self-serving policies, unapologetic excuses, discriminatory behavior and your hegemonic culture of impunity. You should be ashamed of yourselves and we will help end this metastasized disease of racism. Your panel discussions about diversity and ethics should be our panel discussions about diversity and ethics, and we pick who should be on these panels.
"The Declaration was signed by four URI students who were identified as Diversity Think Tank trustees, non-student trustees of Diversity Think Tank, and Fosu."
This unsurprisingly led to tensions with other faculty members:
Several of the faculty expressed concern to the department chair, Professor Hutchison, about the email and the Declaration of Diversity….. [Also, during a] Political Science Department[] meeting[,] … Fosu talked over other faculty and talked about bringing in his army of lawyers. The faculty felt that if they disagreed with Fosu, he labeled them racist…. [In a follow-up e-mail, he] criticized his treatment during the meeting and asserted that the faculty had to stand against racism or they supported racism. He also called out individual faculty members to refute [perhaps meaning "recant"? -EV] their positions during the department meeting. To one female faculty member, Fosu wrote:
[R]acism and discrimination are not complex or complicated matters to understand as you mentioned and implied in your job candidate example…. Maybe you should reflect and recognize that the highly qualified Black person who interviewed as your search committee's first choice, likely declined the job because s/he wanted to avoid a perceived impending racial conflict and marginalization after encountering the reality of our intensely all-white environment…. Step out of your personal defensive mode nurtured naturally by white privilege and empathize with Black candidates who walk on this campus…. I experienced that subtle disrespect and suspicious questioning during our meeting on Friday.
In response to another faculty member's discussion during the meeting, Fosu wrote: "The main beneficiaries of Affirmative Action have been White women—not Black men and not Black women—cultural hegemony has been very successful at falsely convincing us that Blacks predominately benefit from Affirmative Action." Fosu further wrote that "[w]hat I was discussing with [a male faculty member] on a deeper level before I was interrupted by [the female faculty member] is that we cannot rely on an institution that has been systemically racist for 128 years to produce progressive policies that advance racial equity."
Hutchison testified in his deposition that Fosu's email caused distress in the department. Faculty were concerned that they would be publicly accused of being racist if they taught about race issues in class. Other faculty told Hutchison that the department could not talk with Fosu because he would not hear any point of view except his own. The targeted female faculty member told Hutchison that Fosu was creating a hostile work environment and bullying female colleagues….
[3.] There were also several student complaints; the court goes through the details, but here's one sample:
Vice President of Student Affairs Kathy Collins … summarized [one] student's report, as follows:
- Declaration for Diversity was pre-written by Mr. Fosu and taken to class in September, 2020. Students were able to do edits and provide comments in a google doc. None of their comments and edits were accepted into the document. The student [I] spoke with has not "seen the document since September." When students asked if they could edit it, they were told, "no."
- The petition that is up on change.org was circulated in class and students were told to sign at the start of a recent class. Students did not write the petition.
- Multiple students have requested of Mr. Fosu to have their names removed from documents, emails, etc. They were informed by Mr. Fosu that their names could not be removed. He shared that they were "legally required to be named because" they "reviewed the document."
The student also shared:
- students are "very fearful about grades"
- students are "uncomfortable in class"—especially with the "misogyny"
- the student expressed that the class was full of "extreme radicalism"
- the student expressed that Mr. Fosu sees students as "collateral damage."
Student 4 then met with Hutchison, reporting that Fosu intimidated students into going along with the Declaration of Diversity. The student said that students were not allowed to have a voice.
Student 4 reported misogyny in Fosu's treatment of female students. Student 4 also reported that Fosu uses "inappropriate and crude language in class," which made Student 4 uncomfortable, and that they had received inappropriate emails and requests. In addition, the student said that Fosu cancelled classes without warning….
A bit more about Fosu's interactions with students:
In December of 2020 and continuing into January of 2021 four of the six URI students who signed the Declaration of Diversity as trustees of Fosu's Diversity Think Tank resigned from the Diversity Think Tank. The students asked Fosu to remove their names from all Diversity Think Tank materials. In their resignation emails, the students explained that they did not agree with Fosu's goals and actions and that he had sidelined the students' interests.
Fosu responded to the first student and everyone else on the email list in a long email with multiple references to the student as a white man and saying "[o]nly a person who is very privileged would make a false statement that I do not have the best interests of students." Fosu's response to the resignation of the other three students identified them by name, and, included URI community members beyond Diversity Think Tank. Fosu stated that he forgave the students for their "fabrications, ulterior motives and for the pusillanimity of [their] incoherent email."
He also said that that "this collective tantrum from you three, is because I shut down your childhood friend and frat brother [the first student to resign] … [and] [t]he next [he] has a difference of opinion or disagreement with any Black/African American man of my caliber he will know how to speak properly and disagree respectfully." At the end of January, another student resigned from the Diversity Think Tank referencing Fosu's responses as "accusatory, disagreeable behavior." …
[4.] The court concluded that the speech was unprotected under the First Amendment under the test applicable to government employee speech:
[Under Pickering v. Bd. of Ed. (1968)], the court balances "the value of an employee's speech—both the employee's own interests and the public's interest in the information the employee seeks to impart—against the employer's legitimate government interest in preventing unnecessary disruptions and inefficiencies in carrying out its public service mission." …
Fosu's interest in racism at URI … [and] his concerns about diversity in hiring and in the student body at URI are recognized public issues. Nevertheless, under the current rule in the First Circuit, "[s]peech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balancing." Fosu's emails and much of the Declaration of Diversity are insulting to Chief Diversity Officer Almandrez and others and include personal attacks and denigrating remarks about individuals and URI faculty and administration. Those communications generally are entitled to less weight for purposes of balancing interests.
On the other side of the balance, URI put Fuso on administrative leave because of his misconduct. Specifically,
coercion, intimidation, and retaliation toward students limiting their free pursuit of learning;
public expressions of hostility, harassment, and disrespectful and threatening behavior toward colleagues, and disrespect for opinions that are divergent from your own;
[and] disruption of departmental processes and overt efforts on your part to interfere with formally sanctioned university processes and procedures….
Fosu frequently was late to class and cancelled class. His students were intimidated by him and afraid of retribution if they did not agree with and participate in his agenda and his company, the Diversity Think Tank. Faculty in the Political Science Department found him to be uninvolved and disruptive when he was involved. Fosu expressed misogynistic views that intimidated his students and faculty in his department….
Therefore, the balance of interests strongly favors defendants. As a result, Fosu has not demonstrated that his speech is entitled to First Amendment Protection….
Steven M. Richard represents URI.
