Scott Gerber’s Case in Context

Peter Wood

Ohio Northern University (ONU) seems intent on chiseling into granite its protocol for getting rid of a faculty member who disagrees with the institution’s woke ideology, even when the faculty member believes in good faith that the woke ideology has led to illegal hiring and admissions practices and is indifferent to viewpoint diversity. The latest news is that the Common Pleas Court of Hardin County, Ohio, issued a temporary restraining order on July 6, preventing ONU from moving ahead with a disciplinary hearing for Professor Scott Gerber on July 10.

Sound like too small a detail to warrant another article? Perhaps. But think of it as the little dip on the roller coaster track before the thrilling doom-defying plunge. If you aren’t familiar with the Gerber case or need a reminder, the place to begin is with Gerber’s own account, “DEI Brings Kafka to My Law School,” in The Wall Street Journal.

Before I revisit the Gerber case, however, let’s look around. What ONU is attempting to do to Scott Gerber seems to be part of a national trend.

On July 6, the Fourth Circuit Court of Appeals ruled that North Carolina State University could fire a tenured professor of higher education, Stephen Porter, because he couldn’t prove to the satisfaction of two judges on the three-judge panel that he was fired because of his vocal opposition to various steps his department and school had taken. This began in spring 2016 when he objected to a new question added to student course evaluations in which students were asked to evaluate their teachers on how well the teachers advanced “diversity.” A year later, NCSU’s Office of Institutional Equity and Diversity issued a report labeling Porter a “bully” for having objected to the question. In the years following, Porter became increasingly outspoken in his criticism of what he saw as “a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” And both his college and NCSU’s bureaucracy proceeded to find ways to curtail Porter’s professional activity, culminating in his dismissal.

Porter’s case has attracted a fair amount of attention. He was interviewed in 2021 by the Martin Center. FIRE filed an amicus brief in his case. National Review aptly characterized the Court’s ruling, “In Blow to Academic Freedom, Court Rules Universities Can Punish Faculty for ‘Lack of Collegiality’,” and noted the similarity to Scott Gerber’s situation. (Gerber’s situation is actually different, because Gerber believed that ONU was violating the law and he complained to the EEOC about it, which is legally protected activity.)

Elsewhere I‘ve drawn attention to the resemblance of the Gerber case to the ways in which the University of Pennsylvania is persecuting Professor Amy Wax and Bakersfield College summarily fired Professor Matthew Garrett. In all four cases, the university tried (sometimes successfully) to rid itself of a faculty member not for any academic shortcoming or for violating any law, but for espousing opinions that the administration disagreed with.

It is no coincidence that the opinions in all four cases had to do with a university’s determination to bulldoze faculty and students into compliance with a particular view of race, and how higher education should handle racial disparities. Indeed, the four cases I’ve mentioned are among dozens that fall into this category, and I will mention a fifth because it adds another element. In March 2021, I wrote to the president of Pacific University objecting to that institution’s treatment of tenured professor Richard Paxton, who had been fired for having told students in his class, Foundation of Human Development and Psychology, about once having mistaken a group of female impersonators for women. He had been telling the same anecdote for years without occasioning any objections, but this time his anecdote resulted in students complaining that he was “sexist, racist and anti-Semitic.” There was no due process in the case, but simply a Title IX guillotine. Paxton engaged an attorney, but before the case got very far, he died of cancer.

Paxton’s widow, however, has decided to keep the suit going, and this has prompted another Pacific faculty member, history professor Lisa Bradford, to come forward. Bit by bit, a picture of Pacific University emerges in which woke administrators by-pass established rules and procedures in their haste to rid the institution of any and all faculty members who are insufficiently enthusiastic about the new ideological regime.

Part of this is generational, part racial, part sexist. Pacific University, in the eyes of Professor Bradford, “seemed to be stepping up efforts to fire older, white, male faculty and staff, including” seven of her colleagues who fit the category. But plainly it not just old white males who are risk. The preferred tool of these nouveau administrators is an accusation of “bias,” which they treat as exempt from the need for corroboration or evidence of any kind. A “bias” accusation is self-validating in today’s academy.

This, however, may not be the end of the story. The Supreme Court’s recent decision in Students for Fair Admission v. Harvard (and UNC) may put some brakes on higher education’s use of racial preferences in student admissions. Chief District Judge Terry Doughty’s preliminary injunction in Missouri v. Biden also sent a shock wave through the academy with the prospect that the courts may begin to frown on the use of censorship to silence the voices that the establishment regards as sources of “misinformation.” There is a distinct chill in the air that suggests colleges and universities, public or private, may not have unlimited power to rub out their critics by effectively ending their employment. It is not just the FBI’s charming practice of embedding agents at Twitter, or the Biden administration’s fondness for telling us what we can or cannot know about public health measures. The entire diversity regime is founded on the determination to stigmatize anyone who questions its operating manual. It does this by foreclosing debate. If you dare ask where the evidence is for systemic racism you are engaged in systemic racism, ad nauseam.

The Porter decision in North Carolina is sugar for the diversicrat enforcers. Porter complained about the excesses of the diversity regime and they hunted him down.

All of this makes the Scott Gerber case at ONU of real moment. ONU happened to pick on a faculty member who, like Amy Wax, has a voice and knows how to use it. ONU’s latest venture was to by-pass the standard time that allows a faculty member to summon witnesses and prepare his defense. That’s why the Common Pleas Court took the extraordinary step of issuing a temporary restraining order against ONU et. al. It also prompted the national AAUP to write for a third time to ONU President Melissa Baumann to insist that ONU restore due process to Professor Gerber.

I have written twice to President Baumann (here and here) and have drawn the unhappy conclusion that she is unlikely to heed my advice. ONU under her leadership is determined to get rid of its gadfly law professor, even if he is the university’s most renowned and productive faculty member, and even when he is engaged in the legally protected activity of blowing the whistle on ONU to the EEOC. The case nears resemblance to St. Vincent College’s efforts to drive out Professor Bradley C.S. Watson. With Professor Watson, St. Vincent’s has fallen off the map of colleges that matter to anyone further than fifty miles from the Western Pennsylvania campus. ONU trustees are apparently attracted to that recruitment model.

We still don’t know exactly how ONU will fill the box of Scott Gerber’s lack of “collegiality,” but there is now some suggestion that his objection to illegal hiring practices is prompting some of his colleagues to suffer writers’ block or to seek employment elsewhere. No wonder he had to be escorted under armed guard from his classroom to the dean’s office….

President Baumann has also provided another clue as to her view of the educational landscape. She issued a memo to ONU students, faculty, and staff on the day of the Supreme Court’s decision in SFFA v. Harvard. She said, “I feel it is important to note that a legal ruling cannot change the spirit and values of a community,” and “At Ohio Northern University, we believe that belonging, inclusion, and diversity make our community stronger and lead to a transformative educational experience. In this spirit, we will continue to welcome and appreciate different background, life experiences, and ideas.”

This is, of course, standard diversity pablum and a thousand other college presidents said much the same thing, brushing away the rule of law in favor of the wholesome values of a “community,” founded as it happens on racial discrimation, double standards, and ostracism of dissenters. This kind of excuse-making sanctimoniousness has been around for a long time, but it is getting stale. I’ve been writing recently about the peril of small colleges and universities (ONU’s undergraduate enrollment as of 2021 was 2,426) faced with a long demographic slump; an accelerating decline in the percentage of high school graduates who commit to college; an expanding job market for the non-credentialed, a growing distaste among parents as well as students for both the ideological fixations and the educational fatuity of most colleges; and the exorbitant costs.

There may be ways to swim out of that riptide but trying to drive out your best faculty member is not among them. Indeed, a recent ONU law school graduate said precisely that in a powerful July 8, 2023, op-ed in the Kenton Times (Justin R. Marks, “Freedom of Thought Died at ONU, But War Is Not Over”). Kenton, in case readers don’t know, is the same town in which the Hardin County Common Pleas Court sits that issued the temporary restraining order against ONU, President Baumann, Dean Charles Rose, and the five members of ONU’s internal kangaroo court that seems dead set on ruining Scott Gerber’s career with as little due process as possible.

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