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University of Illinois Reinstates Dr. Kenneth Howell

Posted on July 29th, 2010 Freedom of Speech | 11 Comments »

Earlier today we received confirmation from the University of Illinois that it is reinstating Dr. Kenneth Howell as an adjuct professor this fall.  The University terminated Dr. Howell’s employment earlier this summer after a student complained that he was “offended” by Dr. Howell’s academic discussion of the Catholic Church’s position on homosexual behavior in an Introduction to Catholicism course.  The student was not even enrolled in the class. 

In a letter to ADF, the Universitystates that Dr. Howell will be asked to teach Introduction to Catholicism this fall.  This is a tremendous win for Dr. Howell’s academic freedom and First Amendment rights.  However, ADF will continue to monitor the situation. 

The University’s letter warns that Dr. Howell may not “violate the Constitutional principles precluding the ‘establishment of religion’ in a public university context.”  It seems the University has not yet learned its lesson.  No one alleged that Dr. Howell violated that principle or ever intended to.  Yet the University’s warning invites viewpoint discrimination and further violations of academic freedom.  The University must respect the right of faculty to speak freely in the classroom.  Further, the University’s Faculty Senate Committee on Academic Freedom and Tenure intends to review the University’s actions to determine if it violated Dr. Howell’s academic freedom.  We are confident the Committee will find in favor of Dr. Howell.

Dr. Howell’s reinstatement is also a resounding victory for the thousands of University students who rallied to Dr. Howell’s support through social media.


ADF Senior Legal Counsel - University Project

Professor Receives $100,000, Exoneration in Settlement; Court Rejects Garcetti’s Application to Faculty Speech

Posted on July 27th, 2010 Freedom of Speech | 2 Comments »

This week the ADF Center for Academic Freedom settled Professor June Sheldon’s lawsuit against the San Jose/Evergreen Community College District, a college that has been fraught with corruption charges lately.  Professor Sheldon sued the District two years ago after it terminated her employment because an anonymous student complained that she was offended by how Sheldon answered a student’s question in class.  In exchange for dropping the lawsuit, the District paid Ms. Sheldon $100,000 and expunged her personnel file from all charges of wrongdoing.

Professor Sheldon has taught college-level science courses for over 20 years.  In 2007, she taught human heredity at San Jose City College.  During one particular class, a student asked her how heredity affects homosexual behavior.  Professor Sheldon answered the student by discussing briefly both positions on the topic—as discussed in the course textbook—and mentioned the research of a well-known German scientist referred to in a website provided in the textbook.  A month later the District received an anonymous, informal complaint, which it claimed a student submitted.  The complaint stated that Sheldon’s answer to the student’s question about homosexual behavior was “offensive.”  The District then launched an “investigation” and found that Sheldon’s statements were “offensive and unscientific.”  The District’s board of trustees fired her in February 2008 because of what she said in the classroom. 

ADF filed suit on behalf of Professor Sheldon in July 2008.  The District asked the federal district court to dismiss the lawsuit, citing the Supreme Court’s decision in Ceballos v. Garcetti for the proposition that public employees, including faculty at public colleges, have no right to free speech when performing their job duties, including teaching.  (My colleagues and I have written at length about the perils of the Garcetti decision here, here and here.) 

While District argued that Professor Sheldon’s in-class speech was not protected by the First Amendment and that the District has the right to regulate it, even after the fact, the District’s academic freedom policy allegedly protected the faculty’s right to free expression in the classroom: 

The common good depends on the free search for truth and its free expression; to this end, faculty and students hold the right of full freedom of inquiry and expression. Academic freedom is essential to these purposes and applies to both teaching and research.  Freedom is fundamental to the protection of the rights of the teacher in teaching and of the student in learning…. The instructor has the right to study and investigate, interpret his/her findings and express resulting conclusions to students…. Because human knowledge is limited and changeable, the instructor may present views which are controversial and evaluate opinions held by others while simultaneously respecting and valuing their right of their free expression. 

So while the District promised freedom, it still wanted the right to censor and punish faculty for speech it disliked.  This is a dangerous position that all faculty should be concerned about, lest they fall into the same trap as Professor Sheldon. 

The court rejected the District’s Garcetti arguments, refused to dismiss the case, and held that “a teacher’s instructional speech is protected by the First Amendment.”  This is one of a handful of rulings nationwide that addresses Garcetti in the classroom and will provide protection to many faculty in the future. 

Professor Sheldon stood courageously to protect her First Amendment rights in the college classroom.  The settlement pays her $100,000 and exonerates her teaching record.  But the District’s unwillingness to embrace its proclamations of academic freedom is yet another example of the underlying hostility to free speech in the Academy.  Professor Sheldon is not the only professor to have been discriminated against for her speech, but the legal precedent she established and the settlement will no doubt cause administrators to think twice when they try to shut down the “marketplace of ideas” in the future.


ADF Senior Legal Counsel - University Project

Update on the University of Illinois and Professor Kenneth Howell

Posted on July 20th, 2010 Freedom of Speech | 17 Comments »

As David French noted a few days ago, Professor Kenneth Howell, a well-respected academic with 2 master’s degrees, 2 Ph.D.s and many years of ranking as one of the best professors on campus, was recently fired from his job as an adjunct professor at the University of Illinois for daring to teach students the Catholic Church’s position on homosexual behavior—in a class called “Introduction to Catholicism”.

We sent the University a letter last Monday warning them that this action violated Professor Howell’s First Amendment rights.  Initially, it confirmed that Professor Howell was fired due to his e-mail to students explaining the difference between utilitarianism and natural moral theory (which the Catholic Church adheres to) in examining the issue of homosexual behavior, which ran afoul of university policy on “inclusivity.”  Later this week, University representatives claimed that Professor Howell had not in fact been fired, that “no decisions” were made as to the class he is scheduled to teach this fall (even though Professor Howell was told specifically by the department chair that someone else would be teaching his class), and that it was convening a committee of the Faculty Senate to examine whether the principles of academic freedom were violated—in late August.    This was, as President Michael Hogan stated, because the University “want[s] to be able to reassure ourselves there was no infringement on academic freedom here.”  Talk about starting the “review” from a predetermined conclusion!

Late Thursday, we received a letter from the University stating that they are “suspending” the decision of his department chair pending review by the committee.  While this is a nice step, this does not resolve the issue.  It is meaningless for Professor Howell to retain his status as an adjunct professor without being able to teach any classes, and the committee’s review of the situation does not change the fact that Professor Howell was relieved of his previously scheduled teaching responsibilities because his instruction to students was deemed not to meet standards of “inclusivity.”  Save for that email, Professor Howell would still be teaching Introduction to Catholicism in the approaching semester.  That is a violation of his constitutional rights, and we have indicated as much to the University in our response letter, sent today.

We have also seen  media reports indicating that the University intends to examine the longstanding agreement between the University and the Newman Foundation to provide an instructor to teach students about Catholicism and Catholic thought in their Religious Studies department.  (Certainly a relevant topic, with over one billion Catholics in the world).   Some reports indicate that the Newman Foundation has total control over who the instructor will be, but this is false according to the agreement between the University and the Foundation.  The agreement specifically states that the University retains control over the selection of the instructor, who is required to meet all University standards and requirements for any adjunct:

Individuals will be proposed for adjunct faculty status by the Newman Foundation, and shall hold appropriate scholarly credentials and shall be reviewed and approved for adjunct status according to the standard procedures for such positions.  The faculty members and courses shall be subject to the same review and supervision by the Program for the Study of Religion as apply to all courses and members of the Program’s faculty.  In turn, the adjunct faculty affiliated with the Newman Foundation shall have the rights and privileges accorded all faculty holding the same positions.

Regardless, this is nothing but a huge distraction.  This agreement is in no way part of the reason why Professor Howell was fired, and moreover, there is nothing wrong with it, as the University retains control over the selection of who is teaching their students. 

In the meantime, UI students are organizing an effort to “Save Dr. Ken.”  They’ve started a Facebook group, are posting flyers around campus and are organizing a boycott of Religious Studies courses.  But as a sad indicator of exactly what happens when universities like the University of Illinois teach students by example that censorship is acceptable and that true discourse on campus must come second to anyone taking “offense,” we have also received reports that some flyers are  being torn down.    We’re hoping that the University takes quick action to restore Professor Howell’s rights, and in so doing, teaches their students what the First Amendment really means.


ADF Legal Counsel - University Project

After Tenure

Posted on July 8th, 2010 Freedom of Speech | 1 Comment »

I recently attended a faculty conference where any mention of the word “tenure” was met with a cynical chuckle and someone saying, “Tenure, ha!  It barely exists anymore!”  As one who sits off-campus looking in on the Academy the sentiment jolted me.  After all, tenure and the Academy go together like bread and butter.  But an article in the Chronicle of Higher Education demonstrates that my conference friends were not too radical in their retort.  In fact, the Chronicle reports that tenure may in fact be dead—or is at least dying.  And while this news troubles those looking for job security, it has also raised questions about whether professors are free to say what they want inside and outside the classroom.

The Chronicle reports the collegiate trend against tenure:

Over just three decades, the proportion of college instructors who are tenured or on the tenure track plummeted: from 57 percent in 1975 to 31 percent in 2007. The new report is expected to show that that proportion fell even further in 2009. If you add graduate teaching assistants to the mix, those with some kind of tenure status represent a mere quarter of all instructors.

“What’s so bad about the loss of tenure?” you ask.  “All it means is that professors are now employed at-will like the rest of us.”  But here is what worries the faculty:

For starters, some observers say that college faculties are being filled with people who may be less willing to speak their minds: contingent instructors, usually working on short-term contracts. Indeed, the American Association of University Professors says instructors need tenure to guarantee that they can say controversial things inside and outside the classroom without being fired.

This is cause for concern.  While tenure can entrench some wacky professors (thinking of the engineering professor at my alma mater who was an outspoken Holocaust denier), it also protects the lion’s share of professors who want to conduct cutting edge research and propose new theories without fear of government or institutional censorship.  Without tenure, professors will feel less free.  So where can they turn after tenure dies?

They can start with the First Amendment.  For years the Supreme Court lauded the important role the Academy plays in modern society.  In Keyishian v. Board of Regents, the Court said:

The essentiality of freedom in the community of American universities is almost self-evident.  No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.  To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust.  Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

The Court was onto something here.  The lifeblood of our national intellectual stamina is the training of our children and young adults through rigorous study and debate.  Though this blog has amply criticized the many faults of the modern public university, we recognize that the university is still a center of training and new discovery.  Thus, only a few years ago in Garcetti v. Ceballos, the Supreme Court reaffirmed its understanding of the Academy by specifically exempting it from a devastating decision that removed the ability of public employees to speak freely.  With that the Court renewed its commitment to protect free thought in higher education.

Yet some courts are attempting to erode those protections.  As my colleague, Travis Barham, wrote recently, “a federal district court in North Carolina ruled that Dr. Mike Adams’ nationally syndicated columns were not protected by the First Amendment.”  The court based its decision, in part, on deference to the university’s administration and decision making process.  It seems that when faculty need the First Amendment most, courts are increasingly—and wrongly—deferential to college administrators.  The Supreme Court’s decision in Christian Legal Society v. Martinez is just the latest example.

After tenure, where do faculty turn for the assurance that they can speak freely on campus?  For now, the First Amendment remains their friend.  But unless more professors like Dr. Adams stand up for their rights, after tenure, faculty may have nowhere to turn.


ADF Senior Legal Counsel - University Project

A Big Win for College Free Speech in the 9th Circuit

Posted on May 20th, 2010 Freedom of Speech | No Comments »

Thursday, the United States Court of Appeals for the Ninth Circuit issued an important college free speech decision in a case that pits a college harassment policy against a professor’s racially insensitive comments.  (H/t to Professor Volokh who has thorough coverage here, here, here, and here.)   

Rodriguez v. Maricopa County Community College involves a professor who sent three racially charged emails on a college-wide listserv.  A group of employees who were offended by the emails sued the college under Equal Protection and Title VII theories, claiming it failed to take adquate steps to protect them from the professor’s harassment.  In the plaintiffs’ eyes, the college should have used its anti-harassment policy to silence the professor’s speech and impose punishment on him.  The college administration condemned the emails, but did not punish the professor, saying disciplinary action against him “could seriously undermine [the college's] ability to promote true academic freedom.”  The trial court found that the college officials’ actions did not merit qualified immunity, which means that if the plaintiff employees prevailed they could collect money damages from the officials’ pocketbooks.

The Ninth Circuit reversed and found that the officials deserved qualified immunity because the Equal Protection clause of the Fourteenth Amendment did not give the employees a right to be free from offensive speech on a college campus.  In analyzing the claims, the Ninth Circuit flatly rejected the plaintiffs’ argument that the college may silence the professor based on the offensiveness of his speech. 

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal.  But that highlights the problem with plaintiffs’ suit.  Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. [. . .]  “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” [. . .]

Indeed, precisely because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate:  Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested.  The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. [. . .]  Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. [ . . .]  The right to provoke, offend and shock lies at the core of the First Amendment.

This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” [. . .] We have therefore said that “[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.”

That passage would only be better if accompanied by the final movement of Beethoven’s 9th Symphony (“Ode to Joy”).  Yet it gets better.  In responding to the plaintiffs’ argument that the college should have shut down the listserv as a means of communication: 

[L]isteners who are offended by the ideas being discussed certainly are not entitled to shut down an entire forum simply because they object to what some people are saying. Such a rule would contravene the First Amendment’s hostility towards laws that “confer broad powers of censorship, in the form of a ‘heckler’s veto,’ upon any opponent of” certain points of view. [. . .]  Because some people take umbrage at a great many ideas, very soon no one would be able to say much of anything at all.

The court concluded with this: 

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.

If these passages are any indication, the Rodriguez ruling may bode well for Jonathan Lopez, whose First Amendment challenge to the Los Angeles Community College District harassment policy is pending now before the Ninth Circuit (ADF represents Mr. Lopez).


ADF Senior Legal Counsel - University Project

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