Monday, March 15, 2021

Did Georgetown Violate Its Own Speech Policy by Firing An Adjunct Professor?

Story here.

Speech and expression policy here. We have adopted the Chicago Principles. 

In my experience, Georgetown University  talks up principles but rarely adheres to them. The university chooses to do what is expedient or what best reduces its legal liability instead of what it is right or what follows from its explicit moral commitments. [Update: This is not mere speculation. I have met with senior admins about their decisions and had them explicitly confirm this is what they did.] Whenever there is a choice between what sounds good and what is good, it picks the former. It never does anything brave, ever. 

That's not to say the decision to fire one adjunct and suspend another was wrong. (See below for various possible principled grounds for these actions.) Instead, my point is that even if their speech were protected by our speech code, you would nevertheless expect our senior administration to punish these adjuncts. 

I am on the university's speech and expression committee, which advises on free speech issues for students. Since I've been on the committee, we've actually stuck to our principles. We have no standing to challenge the law center dean's decision. Nevertheless, this decision bears on the work we do. Accordingly. I sent the following email this weekend to other committee members, including some senior administrators who form part of the committee.

Dear Members of the Speech and Expression Committee, 

I am writing to suggest some future activity for our committee. 

As you know, last week, two adjunct law professors were caught discussing the performance of “black" students in their course. One professor was terminated for her remarks. The other adjunct, who appears to have said nothing, was placed on administrative leave pending investigation. I have only seen the portions of the clips available on CNN and elsewhere, and thus I am admittedly ignorant of the context as well as whether there was any other related speech.

I would like to suggest that we request Georgetown’s legal counsel, the law school dean, and any other officials who have the right and power to enforce our speech and expression code meet with us to explain why these professors’ remarks (or in the case of Batson, silence) are not protected and constitute grounds for punishment. 

I hope that it is obvious to the members of this committee that to ask whether this speech is protected is not to endorse the speech or suggest that it is morally acceptable. A right of free speech includes the right to speak wrongly. (In political philosophy, it is basically uncontroversial that liberal rights include the right to perform many morally wrongful actions.) Indeed, we have already seen cases where students made explicitly racist, classist, enthnocentric, discriminatory, authoritarian, illiberal, or exclusionary speech, but we in this committee agreed that it was protected by our speech code and no action was taken. 

It seems clear that professional duties as faculty require us to grade students fairly. Accordingly, if there is strong or genuine evidence of bias, this can be grounds for disciplinary action or even termination. Our speech code explicitly states that certain professional obligations supersede our institutional right of free speech. Further, it could be a violation of FERPA for faculty to make statements about how different students are performing in class in front of the class. My understanding, which may be incorrect, is that the professors in question discussed student performance at the end of a recorded class video, and it is possible that their remarks violate the privacy rights of some students. 
[Editorial note for blog readers: As far as I know, any such decisions require the university to undertake various procedures, which it could not have done in the short time it took to fire the one professor and suspend the other. Indeed, I heard directly from the VP of Institutional Diversity and Equity that the investigations were ongoing, though one professor had already been fired.]

However, the same speech code says these are “narrow exceptions not to be used in a manner that is inconsistent with the university’s commitment to a free and open discussion of ideas”. After all, as some of us saw in Wednesday's Free Speech Project panel, once a principled exception to liberal free speech is identified, we know that people who wish to suppress speech will argue that this exception should be interpreted very broadly in order to exclude speech they dislike. Our speech code explicitly states that it will avoid such politically-motivated re-interpretations and that any such exceptions are “narrow”.

Further, our speech code explicitly states that faculty are given “the widest possible latitude to speak, write, listen, challenge, and learn”; “that it is not the proper role of a university to insulate individuals from ideas and opinions they find…deeply offensive”; that “deliberation or debate may not be suppressed because [they] are thought…offensive, unwise, immoral, or ill conceived”. 

It seems that our speech code allows faculty to reject diversity, equity, and inclusivity as guiding ideals; it allows them to hold and defend racist attitudes; it allows them to criticize the university’s admissions policies with regard to race; it allows them to believe and state that members of certain demographic groups disproportionately perform badly in law school; it does not require them to call out or criticize others’ racist speech; and so on. Again, it should be obvious to this group that by saying such speech seems to be protected by our speech code, I am not endorsing any such claims. 

I expect that the dean of the law school has information that we lack. However, I have seen numerous instances of unprincipled, unethical, and unprofessional behavior by senior and junior administrators at Georgetown, especially when it is expedient to act wrongly. (Indeed, I have a book with Oxford University Press which explains, with data, why such bad behavior is so prevalent at American universities.) Further, the law school has frequently failed to follow our speech code. Accordingly, though I admit that the dean of the law school must be better informed than I am on what transpired, I do not take the fact that he made this decision to constitute presumptive evidence that it was the right decision. 

Whether the professors in question displayed bias which impedes their ability to grade students correctly or whether they were instead engaging in protected instances of speech is, I think, debatable. Whether they were violating FERPA or not is also debatable. I take it that it’s our job to debate this. It is not obvious to me that the professors’ speech is not protected by our speech code, though for the reasons I already mentioned above, it is also not obvious to me that it was protected. Further, it is not obvious to me that the official reasons given for termination are the actual reasons.

Again, I am not claiming that the adjuncts’ speech (or silence) was protected. I am not claiming that the dean's decision was wrong. I am claiming instead that this case is sufficiently problematic that we need clarification. Since I am a legal realist—I think the actual rules are whatever actually get enforced, not whatever is placed on paper or on a website—I think we need clarification from the people who have the power to enforce these rules or make rulings on the basis of them. Since we are an advisory board, that is clearly not us.