Like the rest of us, faculty members sometimes say things that are injurious to others. Under what circumstances can they be called to account because of what they say and the impact of their words on listeners? That question arises more often than you might imagine. When it does, boards should appreciate the legal constraints that operate whenever free-speech interests are present.
I’ll treat this subject in this column and the next, starting with three illustrative examples of provocative faculty speech.
1. In a widely studied case from the 1990s, a community college English instructor deliberately used what a reviewing court later referred to as a “confrontational teaching style designed to shock his students and make them think and write about controversial subjects.” His candid classroom discussions of obscenity, cannibalism, and consensual sex with children caused one student to feel so uncomfortable that she filed a sexual-harassment complaint against him.
2. In the summer of 2012, a 24-year-old man with his hair dyed orange entered a movie theater in Aurora, Colorado, and killed 12 people as they waited for the film to begin. Less than two weeks after those shootings, a faculty member at one of the service academies prefaced the showing of a documentary film in a summer-school class by making an awkward joke. “If someone with orange hair appears in the corner of the room,” he instructed his students, “run for the exit.” Unknown to him, one of his students was the son of an Aurora shooting victim.
3. Just a few months ago a professor at a Midwest public university reacted to the murders of 12 civilian workers at the Washington Navy Yard by posting a Twitter message blaming the National Rifle Association (NRA). The message, addressed to “#NRA,” read in part, “Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
These examples are superficially similar in that each involves intemperate faculty speech. But there are important distinctions. The instructor’s remarks in the first example were part of a considered—perhaps ill-considered, but nevertheless deliberate—pedagogical approach to classroom instruction. The community college instructor, in the words of one of the Supreme Court’s most famous academic freedom decisions (1957’s Sweezy v. New Hampshire), exercised his right to determine “what may be taught [and] how it shall be taught,” two of the “essential freedoms” protecting the free-speech rights of faculty members.
In contrast, the angry NRA detractor in the third example uttered words that had literally nothing to do with his teaching, research, or any other aspect of university life. He spoke, not as a faculty member, but as a politically engaged citizen. Instinctively, we would think that his First Amendment rights are less worthy of protection than those of the remedial English instructor who injected intentionally provocative subject matter into classroom instruction in an effort to engage his students. (We would be wrong, by the way, for reasons we’ll explore in next issue’s column.)
The service-academy professor who made an insensitive joke at the start of class occupies a middle ground. He spoke in a classroom, a setting in which courts traditionally accord discretion to faculty members out of concern for academic freedom. But his comments were not part of any conscious didactic decision-making process. He wasn’t determining “how [subject matter] should be taught,” in Justice Frankfurter’s words. He was simply referring—albeit lamely—to a contemporary event.
Our instincts tell us that, when faculty members teach, do scholarly research, or publish academic writing, they engage in activities closer to the essence of the professorial mission than when they offer political commentary—and, for that reason, are worthier of constitutional protection.
In the next issue of Trusteeship, we’ll look at the legal principles courts employ when faculty members assert a constitutional right to speak without fear of reprisal or sanction, and we’ll derive some commonsense operating principles for boards to apply when dealing with troublesome faculty speech.
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