Update: The Gerber Case

Peter Wood

The travails of Professor Scott Gerber, who teaches at Ohio Northern University (ONU), have occasioned three previous comments from me in May, June, and July. For those in need of a quick reminder, Gerber is the law professor marched out of his class on April 14, and taken under armed guard to the office of law dean Charles H. Rose III, who told Gerber he was being fired. Gerber naturally enough wondered why, but Rose would only say that his dismissal was for “lack of collegiality.” Gerber told his own story—quite effectively—on the op-ed page of the Wall Street Journal—“DEI Brings Kafka to My Law School.” I became involved when I wrote the president of ONU, Dr. Melissa J. Baumann, urging her to intervene to correct this abuse of academic due process.

The story has continued to develop, but not in the sense of any real progress. President Baumann and ONU continued to stonewall on why Gerber was dragooned to the dean’s office. The rash and imperious Dean Rose, who might well have been dismissed for his conduct, was instead rewarded with a new five-year contract. ONU even allowed Dean Rose to defame a graduating law student who had contributed $20 to Gerber’s GoFundMe legal fund, and ONU attempted to rush the internal dismissal proceedings against Gerber until Gerber’s attorneys persuaded a court to issue a temporary restraining order. We, the public, still don’t know with any specificity what prompted ONU to pursue this action against Gerber.

What we do know is that Gerber is an outstanding scholar whose record of significant publications towers over all of his law school colleagues and whose record as a teacher is adorned with teaching awards. We also know that Gerber publicly opposed ONU’s fervent embrace of diversity-equity-inclusion initiatives, and that his stand was strongly disliked by at least some in the ONU administration. We also know that Gerber is the author of an important book on Justice Clarence Thomas’s judicial philosophy, First Principles: The Jurisprudence of Clarence Thomas. Gerber’s book and defense of Thomas, a member of the U.S. Supreme Court despised by the academic left, likely painted a target on his back.

At least superficially it looks like ONU singled out Gerber because it didn’t want to hear the opinions of a forceful advocate of views contrary to those of Dean Rose and President Baumann. The superficial view may well be what actually happened, but colleges and universities are seldom caught out so easily. They look for—and sometimes create—pretexts that can be presented to students, faculty, alumni, the press, and us watchdogs and defenders of principle as a “viable narrative.”

Gerber is no shrinking violet. He is widely recognized as a tough-minded attorney who can present and defend his views persuasively. It is easy to imagine that some of his less stalwart colleagues and former colleagues—only three have come forward after 22 years, two of whom no longer work at ONU—find him intimidating. If the ONU definition of “uncollegial” is something like “He holds me to high standards, and to compliance with the law,” then ONU might best present its case by parading before the court his lachrymose and fainthearted colleagues.

But this remains to be seen. Where do things stand right now? ONU is proceeding by acting as if Gerber has already been dismissed. Prior to any decision by any internal or external process, ONU has decided the summary April 14, firing was good enough and has accordingly canceled Gerber’s Constitutional Interpretation seminar and his Constitutional Law course for the fall, despite both being filled to capacity. Meanwhile, the Common Pleas Court of Hardin County, Ohio, has said it is willing to entertain a motion to enjoin the dismissal process if it finds that ONU violated the court’s July 24, order not to ambush Gerber during the dismissal hearing. (It took more than six months and a court order for ONU to finally tell Gerber what he is accused of doing wrong, and the accusations are time-barred and relate to him having high standards and blowing the whistle on illegality.)

Those of us who have watched this saga unfold over the last four months have yet to see or hear anything that would give weight to ONU’s allegations against Gerber. We have, rather, seen breach after breach of due process on the part of the university. If Gerber did something that would have warranted the extraordinary step of pulling him out of class under armed guard to be hauled before Dean Rose and told to “resign” or else, we have not seen it.

The burden of proof lies with the university, which so far has produced only expressions of dislike and disapproval, not evidence of wrongdoing.

As the fall semester approaches, I’ve been receiving emails from people asking where the story stands. There is not much new to report, but it is important that President Baumann and company know that the watchers are still watching. If she assumed we would tire of the matter and go away, she assumed incorrectly, just like she may have assumed incorrectly that the best way to silence a critic would be to fire him.

By User:Bmamlyuk, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=19753531

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