In Blow to Academic Freedom, Court Rules Universities Can Punish Faculty for ‘Lack of Collegiality’By Jeff Zymeri
The Fourth Circuit Court of Appeals ruled Thursday that a public-university faculty member can be punished for the “lack of collegiality” he purportedly showed when he criticized a higher-ed-degree program for prioritizing social justice over scholarship.
To academic-freedom advocates, the decision is a blow, and there are fears the “collegiality” rationale could chill unpopular speech at universities throughout the country.
By a vote of 2-1 in Porter v. Board of Trustees of North Carolina State University, the court ruled against professor Stephen Porter of NCSU, who had been removed from a degree program for complaints he made during a 2016 department meeting, in a spring 2018 email to colleagues, and in a personal blog post written that fall.
According to Porter, “the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” He also called an academic conference in his field a “woke joke.”
Porter was accused of “bullying” his colleagues, and it was suggested he leave the degree program in question. The professor was soon forcibly removed. Porter also claimed his colleagues were making it impossible for him to recruit new doctoral advisees, jeopardizing his tenure.
In Garcetti v. Ceballos, the Supreme Court held that “when public employees speak pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, the Court made the exception for faculty speech “related to scholarship or teaching.”
The Fourth Circuit held on Thursday that comments and critiques of shared institutional governance and decision-making are not protected under the First Amendment.
Judge Julius Richardson dissented, writing: “Contrary to the majority’s terse conclusions, each one of Porter’s three speech instances . . . constitutes protected speech. That is because, in each instance, he was speaking as a citizen on a matter of public concern.”
Richardson wrote that there has unquestionably been a growing and wide-ranging public debate about how colleges ought to emphasize diversity, equity, and inclusion.
The judge also found it was clear that Porter’s colleagues had retaliated against him.
“For those who disagree with Stephen Porter’s message, he might indeed sound like an unpleasant agitator, disturbing the peace. But transgressions of tone tend to ring loudest when we disagree with the speaker’s views,” wrote Richardson, adding that the majority should have recognized that this case was not a “close call.”
“[Professors] saying unpopular things at department meetings could be severely sanctioned or even fired. Write that ‘dear colleague’ email at your own peril,” Princeton University politics professor Keith Whittington wrote on Twitter.
While Porter was not dismissed from his position, Ohio Northern University Law recently gave Professor Scott Gerber an ultimatum to resign or be fired. He too was accused of not being collegial, and the two cases indicate that a trend may be taking hold: Gerber, like Porter, expressed contrary viewpoints during his time at the law school.
Whittington said he doubts the Supreme Court will agree to review this case if it is appealed.
However, since the decision narrowly affirms the scholarship and teaching exception when it comes to the classroom, it should not have bearing on ongoing litigation against Florida’s Stop Woke Act.
While that recently-enacted law shares a skepticism of new race and gender initiatives, its restrictions on classroom instruction on these subjects appears to violate the exception expressed in Garcetti, academic-freedom advocates have argued.
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