The most interesting one appeared in the Chronicle of Higher Education (reposted on Medium), where the author argued that activist faculty have screwed themselves. For many years the courts have deferred to academia, but political behavior by faculty and universities during the past couple of decades has resulted in a more interventionist approach:
Unfortunately, universities are giving courts more reasons to question whether their policies are based on favoritism or politics rather than neutral and objective criteria. In the post-George Floyd era, they are embracing political projects under banners like “social justice” and “anti-racism.” By remaking themselves into institutions devoted to progressive politics, universities weaken their moral and legal claims to judicial deference.
[…]
Although a series of Supreme Court decisions has stripped government employees of most free-speech rights in the workplace, the Court has left open the question of whether the work of public university faculty members warrants special First Amendment protection. That is an important recognition that the academy is different than, say, the Bureau of Motor Vehicles. But it has left lower courts to struggle with cases involving various dimensions of faculty work. Their decisions reveal what courts do or don’t understand about academe’s norms.
One recent case stands out. Stephen Porter is a professor in the College of Education at North Carolina State University. In internal communications related to student course evaluations and faculty hiring, as well as a blog post about the quality of research in his field, Porter criticized the emphasis on social justice and the abandonment of “rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’”
In response to what it called his failure to be “collegial,” the college took away some of Porter’s responsibilities. He sued. In a decision this past July, the Fourth Circuit U.S. Court of Appeals said Porter’s internal speech was not protected under First Amendment academic freedom because it concerned matters of “personal interest” and “was not a product of his teaching or scholarship.” (As for the blog post, the court thought it wasn’t a direct cause of Porter’s punishment.)
Whereas the Meriwether case distorted academic freedom to favor a professor’s personal religious beliefs, the Porter decision failed to understand the role that faculty members play in institutional governance. A primary rationale for judicial academic deference has been an appreciation for faculty expertise. Here, Porter was exercising such expertise — for example, his concerns about the teaching evaluation stemmed from his knowledge of survey methodology. Yet the court viewed him as just another troublesome employee.
Jonathan Turley in The Hill, on faculty dissenting against DEI:
Often, schools will find alternative grounds for harassing or firing dissenting faculty. Those efforts received a boost recently from the United States Court of Appeals for the Fourth Circuit, which rejected the free speech claims of North Carolina State University Professor Stephen Porter. The statistics professor had objected to what he considered the lower standards used by his school to hire minority faculty. When he sued over retaliation for his views expressed both publicly and to the faculty, the Fourth Circuit ruled that the school could discipline him for a lack of “collegiality.”
“Collegiality” was long used as an excuse to block promotion or hiring of women, minority and leftist faculty. The decision in Porter v. Board of Trustees of North Carolina State University is pending before the Supreme Court for possible review. If allowed to stand, it would offer universities a ready-made excuse for cracking down on the dwindling number of dissenters.
Finally, FIRE talks about what’s at stake with my case (they filed an amicus brief):
But on appeal, the Fourth Circuit “ha[d] no trouble concluding” that Porter’s statements were not protected speech. According to the panel opinion, because he made them first two statements in department-only communications, they were not academic speech. As for the blog post, it concluded there was no evidence the university retaliated against him for that.
That was wrong. Porter’s criticism of DEI policies don’t have to occur in a classroom or academic journal to be academic speech. Porter is a professor of higher education. His critiques of higher education policy — including of his own institution’s policies — remain academic even if they leave the classroom. Academic speech regularly occurs at office hours, in hallways, or at large academic conferences. And many academics comment on issues outside their university’s walls: on television, in newspaper op-eds, or via blogs. Limiting academic speech to a narrow sliver of academic discourse “would imperil the future of our Nation,” the Supreme Court says, by “impose[ing] a[] strait jacket upon the intellectual leaders in our colleges and universities.
The First Amendment does not let public universities punish professors for their academic speech — whether that speech is in the classroom or not. The Supreme Court should take Porter’s case and make clear that when professors leave their classrooms, their freedoms stay with them.
