The Scott Gerber Case Revisited

Peter Wood

Nearly a month ago I wrote to the president of Ohio Northern University (ONU), Dr. Melissa J. Baumann, concerning her university’s treatment of law professor Scott Gerber. I also posted the letter to the National Association of Scholars website. It has attracted a fair amount of attention, but not from President Baumann, who so far has not replied.

This matter involves an effort by the dean of ONU’s law school, Charles H. Rose III, to coerce Professor Gerber to resign. The story is more colorful than most academic disputes. Dean Rose sent ONU campus security officers and armed town police to a classroom in which Professor Gerber was teaching on April 14 to escort him to the dean’s office, where Gerber was told he had to resign or be fired. The only reason provided for this action, despite multiple requests for specifics from Gerber, was Gerber’s alleged insufficient “collegiality,” which isn’t even listed in the ONU Faculty Handbook as adequate cause for terminating a tenured professor. Gerber has tenure.

I will fill in more about the case below, but first I want to draw attention to a new development at ONU that may be pertinent. On June 8, Dean Rose sent out an announcement to the Law School faculty, as follows:

I wanted to drop a quick note to let you know that I have negotiated a new 5-year contract with the university and will be with you as the dean of the college of law for the foreseeable future.

For those who have followed this case, this is an eye-opening moment. In my letter linked above to President Baumann, I observed that, “If Dean Rose was acting on his own, it would be clear grounds for his dismissal, which as far as I can tell has not happened. So you own this situation.”

Well, not only was Dean Rose not dismissed, he was reappointed. Can we say “rewarded?” It certainly seems as though ONU’s president and board of trustees found something to like in the dean’s recent conduct.

What Happened

I don’t want to shatter my ship on the rocks of speculation, so let me turn back to the original story with some details that haven’t always been well reported.

Faced with the demand from Dean Rose, Gerber refused to go quietly, as evidenced first of all in his op-ed in the Wall Street Journal, “DEI Brings Kafka to My Law School.” The matter has attracted wide attention, including several interventions from the Foundation for Individual Rights and Expression (FIRE), which published “Professor suspended for reasons unknown — even to him.” Gerber provides a succinct account in his recent interview on the Dennis Prager Show.

This does not mean that Dean Rose’s action came out of the clear blue. The ONU student newspaper, Northern Review, on May 31 ran “A Timeline of Events Regarding Scott Gerber,” which provides some context. On March 23, Gerber published an essay in the Washington Examiner, commenting on a proposed bill in the Ohio Senate, SB 83, “Ohio's move to de-woke-ify higher education is a mixed bag.” Among other things Gerber said in the essay, he observed that “well-settled anti-discrimination law is frequently flouted on college and university campuses, including in Ohio.” That essay may have further inflamed some authorities at ONU who in January (or shortly earlier) had engaged a law firm, Taft Law, to “investigate” Gerber in light of “complaints and concerns.” That month, ONU Director of Human Resources Emily Rosebeck sought a meeting with Gerber to request his participation in the investigation, but she refused his multiple requests for the content of the alleged “complaints and concerns.”

Gerber’s attorney also wrote to ONU requesting the details, but he was likewise rebuffed. In March, an official at FIRE wrote to one of the attorneys at Taft Law saying “ONU violates its obligation to deal with faculty with fairness and integrity by contradicting itself on whether Gerber must submit to an interview and failing to disclose the nature of complaints against him.”

I don’t know whether Taft or ONU responded to FIRE, but it is clear from this record that authorities at ONU were out to get Gerber. They were investing time and money to “investigate” him and doing so in a manner that hid the nature of the grounds of their dissatisfaction with him.

Gerber’s criticism of critical race theory and racial favoritism in faculty hiring were well known and were in sharp opposition to positions taken by ONU. It is likely that this was a factor in the effort to drive him out, but if so, ONU was faced with the problem that Gerber’s opinions on racial preferences were securely protected as a matter of academic freedom. The only practical way to drive him out of ONU would be to “discover” some severe infraction by Gerber of university rules unrelated to academic freedom. Presumably that explains the gumshoe approach ONU took. The “investigation,” though framed as a matter of “complaints and concerns,” was really a matter of trying to dig up dirt on a faculty member whose public opinions irritated ONU’s powers that be.

Did they find anything? We don’t know, but if they did, it was apparently not enough to make a public case. If they were reduced to some instances of faculty members who disagreed with some of Gerber’s published opinions, they were bereft of any real case. Disagreement is the lifeblood of law schools and universities.

Of course, some disagreements are more heated than others. It doesn’t help a scholar if he is better known and more widely published than his colleagues. One can imagine an element of professional jealousy in this case. Professor Gerber has published five academic books, forty-eight articles, thirty-eight book reviews, and one hundred and sixteen op-eds, as of the moment, and he has made approximately one hundred presentations, including at Harvard Law School, Princeton University, Stanford Law School, Columbia Law School, University of Chicago Law School, University of Virginia School of Law, University of Pennsylvania Law School, Brown University, and the United States Supreme Court Historical Society. Perhaps most troubling of all to some of his colleagues, he is a leading authority on the jurisprudence of Justice Clarence Thomas. That alone could prompt some to seek his forced departure from the law school.

The Still Larger Picture

It sometimes seems that the leadership of American colleges and universities is trying to see how far it can go in ignoring laws and even ordinary decencies before the public erupts in outrage. That Ohio Senate bill, SB 83, that Gerber wrote about as a “mixed bag,” passed the Senate by a wide margin and is now before the House. A great many faculty members in Ohio appear to oppose it, but its robust popular support should surprise no one. Among many other things, the bill would ban mandatory diversity training in public universities. It represents a resurgent common-sense approach to higher education and is driven in no small part by the contempt that higher education leadership in the state has shown towards the social values, intellectual aspirations, and good manners of Ohioans.

ONU is a private university that would be touched by few if any of the provisions of SB 83—except that ONU has to compete with Ohio’s much larger and better-known public universities for students. In view of the public distaste for woke education and ONU’s headlong effort to champion the whole woke agenda, if SB 83 became law it could hobble ONU’s recruitment efforts. Though the public universities hate it, the bill could make them a lot more attractive to students seeking an education rather than an indoctrination.

Plainly I am not a neutral party on this matter. I testified to the Ohio Senate in support of the bill. But I bring it up in the context of the Gerber affair only as an index of the larger public sentiments that surround higher education these days. I’ve been spending a lot of time recently examining the complex dilemma of American colleges and universities, most of which are faced with declining enrollments, a severe demographic slump in the number of college-aged students, a curriculum that the coming generation regards as outdated, and a commitment to a political ideology that is losing its appeal.

None of this excuses the iron-fist approach of the ONU administration to a faculty member who dared to dissent from the official line—but it may help to explain what happened. In two words: they panicked. The one thing the academic left cannot abide is intellectual independence, especially from a professor as prolific and talented as Gerber.

Photo by Jachan DeVol on Unsplash

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