Lawsuits and Settlements Won’t Save Free Speech – The Chronicle of Higher Education

Pressure to restrict faculty speech is as old as the modern university, but recently things seem to be on overdrive. Dozens of state-level bills targeting pedagogical content related to race and gender; the politicization of Boards of Trustees; and the weakening or elimination of tenure have all cast a lengthening shadow over faculty members freedom to conduct themselves as teachers, scholars, and commenters on public issues.

The past few months alone have seen controversies erupt over the University of Floridas preventing professors from testifying in court; Collin Colleges firing a faculty member for comments made on Twitter; a tenured history professor suspended for a profane syllabus video; a tenured philosophy professor suspended over a discussion of his research on ethical issues related to sex between adults and minors; and a tenured math professors lawsuit against his institution for, he says, retaliating against him for questioning academic standards.

On paper, faculty members should be confident that they are protected by both the First Amendment (if their institutions are public) and the principle of academic freedom. When they sue as L.D. Burnett sued Collin College they win settlements. Burnett, for instance, received $70,000 plus legal fees.

Is this a victory for academic freedom? In the case of Collin College, another outspoken professor was removed mere days after the settlement. Did Collin not learn its lesson the first time? Was the colleges legal counsel not paying attention?

In fact, events at Collin should serve as a warning. Suing and settling may provide some satisfaction, but they alone will not change the higher-education landscape, or even the institutions in question. For example, while Burnett got her payout, Collin admitted no wrongdoing, and Burnett no longer teaches there. Who, then, actually won?

To see more clearly why the sue-and-settle strategy is not enough, its instructive to look at one of the most infamous cases in memory: That of Steven G. Salaita.

The short version: In 2013, Salaita accepted a tenured appointment from the University of Illinois at Urbana-Champaigns American Indian-studies program. After accepting the offer but before starting his role, Salaita, a Palestinian American, posted angry tweets condemning Israels 2014 Operation Protective Edge military campaign in Gaza. The conservative website The Daily Caller publicized the tweets, and an outcry erupted. On July 21, the UIUC spokeswoman Robin Kaler said, We recognize the freedom-of-speech rights of all of our employees. But on August 1, Chancellor Phyllis M. Wise informed Salaita that she would not forward his appointment to the Board of Trustees. Salaita said he was fired; Urbana-Champaign said he was technically not yet hired. Scholars began a boycott of the university, and the American Association of University Professors threatened censure.

In January of 2015, Salaita announced he would sue, seeking reinstatement. Released emails revealed compromising discussions between Wise and others; Wise eventually resigned from the chancellorship. In June, the AAUP voted to censure Urbana-Champaign. In August, Judge Harry Leinenweber of the U.S. District Court for the Northern District of Illinois shot down the universitys motion to dismiss in a blistering 56-page ruling. In November, the university and Salaita settled. Salaita received $600,000, plus $275,000 in legal fees. When one adds UIUCs own legal expenses, the case cost the university over $2 million. Salaita himself declared, This settlement is a vindication for me, but more importantly, it is a victory for academic freedom and the First Amendment. Many rejoiced.

Fast forward several years. After a two-year position at the American University of Beirut, Salaita was unable to find an academic job. In 2017 the AAUP voted to remove UIUCs censure, though the university never admitted fault and took minimal, if any, corrective action. Robert Warrior, director of UIUCs American Indian-studies program, left the institution. By 2019, Salaita was working as a school-bus driver.

How could such a big victory mean so little? One group that would not have been mystified was Urbana-Champaigns administration. Before Salaita filed suit, Chris Kennedy, chair of the Board of Trustees, was frank: The university will calculate whats going to cost us more to defend and win the lawsuit or to settle. When the settlement was announced, Interim Chancellor Barbara Wilson said that it represents an important step forward in our efforts to see the AAUP censure lifted. It also allowed the university to avoid admission of wrongdoing. Salaita won the settlement, but the University of Illinois won the war.

For administrations wanting to get rid of nuisance faculty, all that may be needed is a little patience and a willingness to settle; despite having no legal basis to stand on, UIUC got exactly what it wanted. Settlement was essentially a onetime payment to silence faculty speech.

The day the former professor L.D. Burnetts settlement with Collin was announced, she posted a GIF of dancers. But Collins leaders had admitted no fault. Days later, they ousted the professor Michael Phillips because, Phillips said, hed publicly complained about a Collin policy prohibiting faculty members from recommending masks in class. For them, its as if the Burnett case had never happened. And thats the point.

In December 2020, Garret Felber was fired from a tenure-track position at the University of Mississippi. The universitys stated reason was that Felber refused to communicate with his department chair, a justification as strange as it was baseless. (Felber argues that he was fired because he was outspoken in challenging the university.) Several scholars boycotted the university and signed a public letter in support of Felber, but the university refused to budge. In July 2021, Felber and the university reached a settlement for an undisclosed amount. Again, no wrongdoing was admitted: A university representative said, The university stands by the process it followed, the ruling of the faculty committee that reviewed this case and the decisions made. We wish Dr. Felber well as he pursues his future opportunities.

In 2007, the adjunct faculty member June Sheldon had her offer for future courses revoked and was then terminated by San Jose/Evergreen Community College District after an in-class discussion of sexual orientation. The dean of mathematics and science concluded, against the views of other science faculty members, that Sheldon was not teaching science. A lawsuit was filed, and a federal-district court found that Sheldon had First Amendment rights in the classroom. The district settled, paying Sheldon $100,000 and removing her termination letter. A representative of the Foundation for Individual Rights in Education, which supported Sheldon, said after the settlement that the district had better things to spend its money on than fighting a First Amendment lawsuit against a professor who was just doing her job. The district may disagree; while it removed Sheldons termination letter, it did not offer her future courses. At the time of this writing, Sheldons LinkedIn profile identifies her as self-employed tutor.

Each of these settlements can of course be seen as a victory for free speech. But administrations appear to see a simple cost calculation one without reference to any principle beyond institutional public relations. After all, if the faculty members remain gone, how was their speech protected?

A few cases that went differently suggest an alternative strategy is possible.

Mike Adams was a constant thorn in the side of the University of North Carolina at Wilmington, regularly posting social-media comments that many found hateful. When UNC denied his promotion to full professor in 2006, he sued. After a district court dismissed his case, he appealed to the Fourth Circuit, which overturned the district courts ruling. Six years after filing suit his case went to trial, and in 2014, UNC settled with him for the promotion he had been denied, plus back pay and lawyers fees. (Adams continued to attract controversy after the settlement. He and UNC at Wilmington reached a second settlement in 2020 in exchange for his early retirement. His story ended tragically, however: Less than a month after reaching the settlement, he died by suicide.)

Adams had the benefit of already being tenured. Even with his job not at risk, it took years and an appeal for Adams to get his promotion. This is one lesson: To protect speech, faculty members and their supporters must have the will and the means to carry out a long, long battle. Even with the law on ones side, fighting an institution with millions of dollars and a squad of lawyers is daunting. Settling can be a result of insufficient funds and lack of income; after all, ousted professors still need to eat. Supporters of faculty speech should work on developing resources to support extended litigation, similarly to how unions develop ways to support workers during strikes. Administrations must believe that faculty will fight to win, even when, unlike Adams, they are out of a job.

The recent case at the University of Florida is also instructive. There, several faculty members were prevented from testifying against the state on matters related to their professional expertise. The faculty members filed a legal challenge. In January, Judge Mark E. Walker of the U.S. District Court for Floridas Northern District found for the professors in a blistering ruling. The university appealed that decision on February 8, but meanwhile, its accreditor had started asking questions. To settle with one or more faculty members is one thing. To risk accreditation is to risk an institutions ability to take in federal financial aid, an enormous potential cost. Accreditation, as has recently been argued in these pages, is potentially a huge lever that could be used to protect academic freedom.

We should always promote faculty speech on principled grounds. But if an administration is acting without principle, settlements for what amount to minuscule fractions of the budget will not compel it to care. In that case, another argument must be made: Violating faculty speech doesnt pay.

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Lawsuits and Settlements Won't Save Free Speech - The Chronicle of Higher Education