Jeffrey A. Schaler, Ph.D.

"Profs Fight Censorship in Court," by Matthew Tokson. The Dartmouth Review, April 24, 2000

On March 30, the Ninth Circuit Court of Appeals cleared the way for a lawsuit by tenured English professor Michael A. Hollister of Portland State University alleging that the university violated his free speech rights when it retaliated against him for comments he made ridiculing feminist literary criticism.

Hollister has previously sued nine department colleagues in 1995, charging them with retaliating against him for comments that he had made about feminist criticism. His colleagues allegedly conspired to deny him merit pay and regular raises, opposed and delayed his promotion to full professor, and tried to eliminate the courses he taught.

The court ruled that Hollister's colleagues "had engaged in ridicule, harassment, and humiliation of him, creating an environment so hostile that his ability to teach his specialty at PSU had been severely impaired," and therefore Hollister could sue his colleagues and the university.

As the court addressed in its decision, the rights of professors to freely speak their opinions in class was established in 1968 with the Supreme Court case Marvin L. Pickering v. Board of Education of Township High School District 205, which found that high-school teachers could not be arbitrarily disciplined for voicing their opinions about a matter of public concern.

The case was, in the eyes of the federal appeals court, a clear one: " The lifeblood of a college is free inquiry and its companion, free speech, by its faculty on subjects pertaining to education," wrote Judge John T. Noonan, who authored the unanimous opinion. "A high school teacher cannot be disciplined arbitrarily for speech on a matter of public concern. [Thus] a college teacher cannot. Sometimes the precise contours of a constitutional right are vague and need filling in by court decisions. In the case of a professor's speech on educational policy, any member of the faculty or administration would know-and would have known in 1980-that it would be to deny his constitutional right to speak to deny him a promotion or pay increase in retaliation."

Other Lawsuits

In fact, while professors continue to encounter censorship from their universities, they tend to be successful in asserting their rights in court and in academic circles. At Macomb Community College, a professor suspended for using obscenities and "dehumanizing, degrading, and sexually explicit" language in his English class was reinstated by a federal court judge after he sued the school for violating his right to free speech. After one woman in his class claimed that the language constituted sexual harassment, professor John Bonnell responded by handing out a pamphlet consisting of the student's accusation and his response to it. MCC administrators suspended him for his actions, despite the lack of sexual harassment evidence and the fact that he removed the student's name from his pamphlets.

The judge ruled that the suspension "deprived him of his First Amendment right to free speech in his classroom."

Similar victories have been won by professors at both public institutions (the University of Minnesota) and private ones (Colorado Mountain College). There are, however, inconsistencies in the judicial record; institutions win these cases with some real frequency

Adjunct Professors

The professors to whom colleges tend to be most successful in denying academic freedoms are adjunct professors. Academic freedom for these non-tenured professors, who today make up almost 50% of college teachers, simply doesn't exist.

Adjuncts have been fired from colleges nationwide for teaching controversial material (such as Jeffrey A. Schaler of Chestnut Hill College, fired for his non-conventional views on mental illness and addiction), using racially or sexually charged speech (such as Ken Hardy of Jefferson Community College, fired for using racially charged words, in appropriate context, during a discussion with his communication class), or even organizing a union. Adjuncts are especially vulnerable, since all an institution has to do to fire them is not renew their contracts. Their union is weak and full-time professors are often reluctant to lend support. And adjuncts tend to have less money to spend on legal action against their employers.

Despite all this, adjunct professors have found some success in legal action against the colleges that employ them. Adjunct Randy Vanderhurst won over a half a million dollars from the college that fired him after he used the words "tampon" and "anal sex," in context, during a lecture.

The American Association of Higher Education also recently drafted an academic freedom resolution that explicitly includes adjunct professors along with tenured ones, and is continuing to campaign for part time as well as full-time profs.

Student Censorship

While professors and students seem equally likely to come into conflict with their Universities over "offensive" speech, students seem to be much less successful in fighting back. Like adjunct professors, students have fewer financial resources than full-time profs. And, besides perhaps the ACLU, students have no outside group to represent their interests. Violation of student's Constitutional rights has occurred at both private colleges (Dartmouth for instance) and public ones.

At Wesleyan University, known for its political correctness, a student was forced to cease production of a movie on gender studies which was to feature footage of actual sex, as University administrators claimed that it would contribute to an unsafe environment for women on campus. And at UCSD, a student who displayed an obscene sign in his window criticizing Chilean Dictator Augusto Pinochet was to be disciplined by the University until the ACLU filed a lawsuit on his behalf.

The difference between professors and students in academic free speech cases is most pronounced in the area of (gulp) student publications. Roy Bauer, a philosophy professor at Irvine Valley College in California, publishes two newsletters, The Dissenter and the Vine. In both of them, he has published fictional accounts of the violent deaths of college trustees (something even this paper has never done) and of his desire to drop a chunk of granite on the head of the college's president.

Bauer sued the college after they tried to restrain his publications, which they saw as "threats of violence." The district court judge ruled that "the speech in question is core protected speech and there is no applicable First Amendment limitation that would permit the discipline to be imposed on Bauer. No reasonable person, the judge found, could have concluded that the written words of Bauer constituted a serious expression of an intent to harm or assault."

Unfortunately, the tolerance and restraint the judge imposed upon the college in Bauer's case is far from typical for administrators.

At Kentucky State College, something as innocuous as a student yearbook was subject to censorship. The University's Vice President of Student Affairs confiscated all 2,000 copies of the College's student-produced yearbook, citing its non-school cover color, its vague and inappropriate theme "Destination Unknown," and its focus on non-school events. Two students sued the school for violating their first amendment rights as well as for their policy of reviewing the student newspaper before allowing it to be published. The judge in the case, citing an also disturbing Supreme Court ruling that high school students could have their newspapers censored, ruled in favor of the KSC administration.

A similar repression was allowed at Hudson Valley Community College, where the student newspaper was shut down and its offices guarded by campus police after the paper accepted an ad looking for strippers for a New York dance club. The paper would have been permanently disbanded if the nightclub had not voluntarily withdrawn its ad.

Seeking to keep everyone from being offended, administrators nationwide, the record seems to indicate, are censoring with a rather broad red pen. Many of the violations stem not from offensive speech, but from silly things like a strip club ad or a sign in one's dorm room window. Organizations from fraternities to newspapers to yearbooks have been successfully attacked. As political correctness and plain-old institutional stupidity cause the rights of professors and students to be attacked more and more frequently, professors (especially tenured profs) seem to be better equipped financially, legally, and organizationally to fight for their constitutional rights. If current trends continue, students can reasonably worry about losing more and more of their rights to paternalistic college administrations.