You’re a university president, and some of your professors have decided to host a protest teach-in. It will disrupt regularly scheduled classes, and local residents are upset about it. What can you do? Or should you do nothing at all?
“Can versus should — that’s where we as higher-ed lawyers spend most of our time,” said Stephanie Rosenberg, general counsel at the University of Arizona.
How institutions should handle faculty speech was the core question during a panel discussion here on Tuesday at the annual conference of the National Association of College and University Attorneys.
In the proposed hypothetical, the university could probably make the case that the teach-in would be disruptive, said David Urban, a California lawyer. That might justify punishing someone.
But Rodney Smolla, dean of Widener University’s Delaware Law School, was crystal clear on how he’d respond: “There’s no way I’m going to do anything about this.” Sure, if the event turned violent, or stretched beyond a day, that might cross a line, said Smolla, a former president of Furman University. But in most cases, he said, “I’d rather take heat from the local paper or my board or parents than take the heat I’m going to take if I disrupt this exercise of free speech.”
Faculty speech was a hot topic at this year’s conference, which is taking place at a time when it’s easy for offhand tweets or comments to go viral and provoke swift calls for professors’ dismissal.
Sometimes professors say things that are taken out of context and misconstrued; in other cases, they espouse political views that could harm their institution’s reputation or offend its students, alumni, or surrounding residents.
Yet tenured professors, in particular, continue to trumpet the importance of protecting their academic-freedom rights, especially as right-wing websites are intent on attacking the academy.
Such questions recently came to the forefront during oral arguments in a Wisconsin Supreme Court case involving Marquette University, a private institution, where a professor had been suspended for allegedly using his personal blog to intimidate students and colleagues. Fresno State University also found itself in the international spotlight this year after a professor attacked Barbara Bush as a racist immediately after her death. The university did not discipline the professor.
One tricky issue is whether speech related to a faculty member’s teaching and research retains a special First Amendment protection, Rosenberg said. There’s also the question of whether activities like speaking at a conference or participating in a symposium should be considered faculty speech or private-citizen speech, she said.
Moreover, she added, professors who participate in something like a protest teach-in are doing what they were hired to do. Lawyers must take into account, she said, that scholars typically have the academic freedom to teach in their areas of expertise.
In this day and age, the stakes are often high when it comes to professors and expression, said Monica C. Barrett, a New York lawyer and former interim general counsel at Rutgers University.
Barrett described one faculty member who was embroiled in controversy for asserting that the Trump administration embodies elements of fascism. “He was actually receiving threats against his children,” she said.
At Governors State University, officials recently changed their hiring practices to account for faculty members who hold views that may conflict with the institution’s mission, said Sarah Luke, general counsel there.
Those professors typically have a right to express such beliefs on social media, Luke said. But what if a faculty member who feels strongly that women are best suited for domestic roles wants to serve on a search committee? He’ll be told that he must uphold certain university policies, such as those on nondiscrimination and antiharassment, Luke said. If he refuses, he must recuse himself.
Underlying those concerns about how to handle faculty speech is the broader question of what a college campus should be, Smolla said on Tuesday.
One theory in legal circles is that a campus should be a community of rational discourse, where order and morality trumps whatever you feel like saying. But others believe that if there’s any place where free speech should reign, it’s the university.
Either the university is “an elevated space,” Smolla said, or “it’s the super-marketplace.”
Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.
