This article is cross-posted from Minding the Campus.
Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being accused of racial "harassment" over your classroom speech. Free-speech advocates use adverse publicity to save wrongly-accused professors from being convicted and fired. They put to good use Justice Brandeis's observation that publicity cures social evils, just as sunlight is a disinfectant.
But as the plight of Lawrence Connell at Widener University illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he risks being punished for "retaliation" against them, even when harassment charge is baseless. Connell was convicted of "retaliation" because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal "retaliation."
Connell, who is white, was charged with racial harassment and removed from Widener's campus because he discussed hypothetical crimes in his criminal law class, including the imaginary killing of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he "expressed his philosophical concerns about the fairness and utility of hate crime" laws).
But there was never any evidence that Connell used the dean in these hypotheticals because of her race. (Comments are not "racial harassment" unless they target a victim based on her race, and are severe and pervasive, according to Caver v. City of Trenton, a ruling by the appeals court that has jurisdiction over Widener.) Far from being a racist, Connell had spent 15 years successfully working to save the life of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.
Leading law professors submitted affidavits in support of Connell pointing out that discussing hypothetical crimes against law deans was standard practice in criminal law classes. George Washington University's Orin Kerr noted that "one of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. . . . students just love it. If you teach first-year criminal law," "that means you spend a lot of time imagining your colleagues meeting horrible fates." In Bauer v. Sampson, a court ruled that depicting a college official's imaginary death was protected by the First Amendment.
After Connell was exonerated by a committee of law professors, the charges against him were resubmitted to a disciplinary panel including Dean Ammons herself, another Widener administrator, and a professor hand-picked by Ammons.
While even this panel was forced to concede that Connell had not committed racial harassment, it found him guilty of two acts of "retaliation": the first was an email protesting his innocence after he was suspended and banned from campus, and the second was his lawyer's public statement that he was preparing to sue over the unfounded allegations. The email called the accusations against him "preposterous" and said that they were made by "two unnamed students from my Criminal Law class of spring 2010" who "falsely" quoted and took "out of context" his classroom "remarks." The panel deemed the email to be illegal retaliation, even though the email did not even name the accusers, because the email supposedly had the "foreseeable effect of identifying the complainants." (The email led to students speculating about who the complainants were, and a complainant suspected that others "believed that she was one of the complaining students."). Connell was then suspended for a year without pay. As a condition of reinstatement, he must undergo psychiatric treatment, and be deemed sufficiently "cured" before he is allowed to return to his classroom.
Connell's email did not constitute "retaliation" under controlling legal authority. But Widener was able to claim otherwise with a straight face, by cherry-picking language from court rulings it selectively cited. First, it recited the vague, broad definition of retaliation from the Supreme Court's decision in Burlington Northern v. White (2006): conduct that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." The email, it suggested, could dissuade complaints by making complainants uncomfortable or inciting ostracism against them.
But Widener ignored language in that court ruling saying that mild expressions of hostility in response to a complaint do not rise to the level of "retaliation." The Supreme Court declared that "snubbing by supervisors or co-workers" or "petty slights" in response to a complaint do not rise to the level of retaliation, since they would not be "material" enough to dissuade a "reasonable" person from complaining. If actual snubbing is not retaliation, Connell's email can't qualify based on Widener's speculation that it could lead to snubbing. The Supreme Court also said that only "significant" rather than "trivial harms" constitute retaliation, and that "sporadic" "abusive language" or "occasional teasing" does not qualify.
Second, Widener cited a ruling from a Midwestern appeals court (which has no jurisdiction over Widener), that rejected a challenge to a professor's discipline for publicly criticizing a harassment complaint. That disturbing ruling, Bonnell v. Lorenzo, essentially held that bans on "retaliation" trump the First Amendment, menacing academic freedom.
In doing so, Widener ignored other First Amendment rulings limiting the reach of retaliation law. For example, in BE&K Construction Co. v. NLRB (2002), the Supreme Court held that an employer's reasonable, but unsuccessful, lawsuit was protected by the First Amendment's petition clause even if it had a "retaliatory motive." In Bain v. City of Springfield (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by "constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech." Similarly, in Brooks v. City of San Mateo (2000), the Ninth Circuit held that "retaliation" could not be found based on "mere ostracism" or employees' refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the "First Amendment freedom of association."
In short, contrary to what a Florida trial judge recently suggested, there is no blanket exception to the First Amendment for speech that is "discriminatory" or "retaliatory." In DeJohn v. Temple University (2008), the federal appeals court with jurisdiction over Widener invalidated a college sexual-harassment policy that restricted academic speech, noting that "there is no 'harassment exception' to the First Amendment's Free Speech Clause," and "no categorical rule . . . divests `harassing' speech as defined by federal anti-discrimination statutes, of First Amendment protection." Similarly, White v. Lee (2000) rejected liability for speech that allegedly incited discrimination, holding that the anti-discrimination provisions contained in the Fair Housing Act did not override free speech protections. That appeals-court ruling held that citizens could not be investigated under the Fair Housing Act, even if their speech was bigoted, and led to a city blocking a housing project for the disabled. If the First Amendment protects speech that incites actual discrimination, it certainly protects speech that merely unintentionally incites snubbing of a discrimination complainant. In Rodriguez v. Maricopa County Community College (2010), an appeals court, citing the First Amendment, dismissed a racial harassment lawsuit against a white professor over his racially-charged anti-immigration emails.
While Widener's claim that Connell's email was "retaliation" was a tortured reading of the law, it reflects what retaliation ought to mean to some left-leaning lawyers who counsel universities. (Other academics, like Richard Osborne at Mesabi Community College, have also been punished for "retaliation" for speaking out vigorously in their own defense; Osborne's punishment was rescinded only after he brought a free-speech lawsuit.) To these lawyers, current legal rules privilege white male faculty at the expense of minority complainants, giving them insufficient protection.
When law professors at the Volokh law blog condemned Widener's treatment of Connell, most of its lawyer readers disagreed with Widener's "retaliation" finding in the comment thread. But a liberal employment lawyer who represents universities disagreed, arguing that Widener was not only permitted but legally "compelled to punish" Connell for "retaliation." Brushing aside the arguments of many other lawyers pointing out that Connell's email did not legally amount to "retaliation," that commenter, who represents employers, argued that simply proclaiming your innocence without even mentioning the name of your accuser can be retaliation. He claimed that Connell, who had received high marks for his teaching (and successfully handled high-profile cases in court), was a "warped," "underachieving white male" who should have been fired. People wrongly accused of harassment, he said, should just keep their "mouth shut and let the process" work, "not contact" potentially helpful witnesses, and "say nothing to anyone." He argued, "when you are accused of race and sex discrimination, it is best to be silent . . . And you should keep silent unless and until you have been exonerated." (That is a prescription for disaster in dealing with a campus kangaroo court, or in getting sympathetic witnesses to come forward to rebut a claim that a professor's classroom remarks created a racially-harassing "classroom climate"). Exuding racial grievance against whites, he depicted those who disagreed with him as racists, and called the conservative Connell an "anti-black bigot," citing the alleged existence of "OBVIOUS historical antipathy between conservatives (especially white male ones) and minorities" -- even as he claimed that jurors were legally "required" to find O.J. Simpson not guilty. As a commenter observed in response, lawyers like this are "part of the whole victimhood industry, . . . 'advising' clients to genuflect before the gods of political correctness, lest they be harmed."
Employment lawyers are a lopsidedly liberal lot. In my employment-law class at Harvard Law School, my classmates were overwhelmingly hostile to employers in harassment and retaliation cases. Ironically, some of those classmates now have jobs representing employers and advising them on their legal responsibilities. Their advice may well be colored by their ideology, and may lead to their clients firing innocent employees as "harassers" or "retaliators." Moreover, broad legal definitions of harassment and retaliation create more lawsuits, and thus more demand for these lawyers' services, benefiting them financially.
There is a final reason why Widener's finding that Connell engaged in illegal retaliation was erroneous: the complainants' allegations were legally unreasonable and thus not protected against "retaliation." Retaliation against a harassment complainant is not legally prohibited if the complaint was based only on trivially-offensive speech, as the Supreme Court made clear in Clark County School District v. Breeden (2001). Thus, a complaint about a single racist utterance was not protected against retaliation, according to an appeals court in Jordan v. Alternative Resources, because it could not reasonably be perceived as illegal harassment. No reasonable person would think that Connell's perfectly-defensible classroom remarks were illegal racial harassment. (Note that while unreasonable charges are not protected if made to an employer, they are protected if made to a civil-rights agency; agency complaints are generally protected even if false).
Hans Bader is Senior Attorney at the Competitive Enterprise Institute.