Retaliation Charges Pose Growing Threat to Free Speech

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being wrongly accused of racial or sexual “harassment” based on your classroom speech. Civil-liberties advocates, like the Foundation for Individual Rights in Education, rely heavily on adverse publicity to save wrongly accused professors from being disciplined and fired by campus disciplinary bodies. They put to good use Justice Brandeis’s insight that publicity deters wrongdoing and helps cure social evils. As Brandeis once noted, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

But as the plight of Lawrence Connell at Widener University School of Law illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he increasingly risks being punished for “retaliation” against them, even when harassment charge is baseless. Connell was convicted of “retaliation” because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal “retaliation.”

Professor Connell was charged with racial harassment and removed from Widener’s campus because he discussed hypothetical crimes in his criminal law class, including the imaginary killing of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he “expressed his philosophical concerns about the fairness and utility of hate crime” laws.)

But Connell did not select the dean for use in these hypotheticals because of her race, nor was there any evidence that he had a racist motive for doing so. (Comments are not “racial harassment” unless they target a victim based on her race, and are severe and pervasive, according to Caver v. City of Trenton, a ruling by the Third Circuit Court of Appeals, which has jurisdiction over Widener.) Far from being a racist, Connell had spent 15 years successfully working to save the life of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.

Leading law professors filed affidavits in support of Connell pointing out that discussing hypothetical crimes against law deans was standard practice for law professors who teach criminal law. George Washington University’s Orin Kerr noted that “one of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. . . . students just love it. If you teach first-year criminal law,” “that means you spend a lot of time imagining your colleagues meeting horrible fates.” In Bauer v. Sampson, a court ruled that depicting a college official’s imaginary death was protected by the First Amendment.

After Professor Connell was exonerated by a committee of law professors, the charges against him were resubmitted, in Kafkaesque fashion, to a disciplinary panel including Dean Ammons herself, another Widener administrator, and a professor hand-picked by Ammons.

While even this new panel was forced to concede the obvious — that Connell had not committed racial harassment — it found him guilty of two acts of “retaliation”: the first was an e-mail protesting his innocence after he was suspended and banned from campus, and the second was his lawyer’s public statement that he was preparing to sue over the unfounded allegations. The e-mail called the accusations against him “preposterous” and said that they were made by “two unnamed students from my Criminal Law class of spring 2010” who “falsely” quoted and took “out of context” his classroom “remarks.” The panel deemed the email to be illegal retaliation, even though the e-mail did not even name the accusers, because the e-mail supposedly had the “foreseeable effect of identifying the complainants.” (The e-mail led to students speculating about who the complainants were, and a complainant suspected that others “believed that she was one of the complaining students.”) Connell was then suspended for a year without pay. As a condition of reinstatement, he must undergo psychiatric treatment, and be deemed sufficiently “cured” before he is allowed to return to his classroom.

Connell’s e-mail did not legally constitute “retaliation” under controlling court rulings and precedents. But Widener was able to claim otherwise with a straight face, by cherry-picking language from court rulings it selectively cited. First, it recited the vague, broad definition of retaliation from the Supreme Court’s decision in Burlington Northern v. White (2006): conduct that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The e-mail, it suggested, could dissuade complaints by making complainants uncomfortable or inciting ostracism against them.

But Widener ignored language in that Supreme Court ruling saying that mild expressions of hostility in response to a complaint do not rise to the level of “retaliation.” The Supreme Court declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a complaint do not rise to the level of retaliation, since they would not be “material” enough to dissuade a “reasonable” person from complaining. If actual snubbing is not retaliation, Connell’s e-mail can’t qualify based on Widener’s speculation that it could lead to snubbing. The Supreme Court also said that only “significant” rather than “trivial harms” constitute retaliation, and that “sporadic” “abusive language” or “occasional teasing” does not qualify.

Second, Widener cited a ruling from a Midwestern appeals court in another part of the country (the Sixth Circuit, which has no jurisdiction over Widener), that rejected a challenge to a professor’s discipline for publicly criticizing a harassment complaint. That disturbing ruling, Bonnell v. Lorenzoessentially held that bans on “retaliation” trump the First Amendment, menacing academic freedom.

In doing so, Widener chose to ignore other First Amendment rulings that limited the definition of “retaliation” based on the freedoms of speech and petition. For example, the Supreme Court’s 2002 ruling in BE&K Construction Co. v. NLRB held that an employer’s reasonable, but unsuccessful, lawsuit was protected by the First Amendment’s petition clause even if it had a “retaliatory motive.” In Bain v. City of Springfield (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Similarly, in Brooks v. City of San Mateo (2000), the federal Ninth Circuit Court of Appeals held that “retaliation” could not be found based on “mere ostracism” or employees’ refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the “First Amendment freedom of association.”

In short, contrary to what a Florida trial judge recently suggested in Booth v. Pasco County, there is no blanket exception to the First Amendment for speech that is “discriminatory” or “retaliatory.” For example, in DeJohn v. Temple University (2008), the Third Circuit, the federal appeals court with jurisdiction over Widener, invalidated a college sexual-harassment policy that restricted academic speech, noting that “there is no ‘harassment exception’ to the First Amendment’s Free Speech Clause,” and “no categorical rule . . . divests `harassing’ speech as defined by federal anti-discrimination statutes, of First Amendment protection.” Similarly, White v. Lee (2000) rejected liability for speech that allegedly incited discrimination, holding that the anti-discrimination provisions contained in the Fair Housing Act did not override free speech protections. That ruling by the Ninth Circuit Court of Appeals held that citizens could not be investigated under the Fair Housing Act, even if their speech was bigoted, and the speech directly led to a city blocking a housing project for the disabled. If the First Amendment protects speech that incites actual discrimination, it certainly protects speech that merely unintentionally incites snubbing of a discrimination complainant. Similarly, in Rodriguez v. Maricopa County Community College (2010), the Ninth Circuit, citing the First Amendment, dismissed a racial harassment lawsuit against a white professor over his racially-charged anti-immigration emails.

While Widener’s claim that Connell’s email was “retaliation” was a tortured and pretextual reading of the law, it reflected what retaliation ought to mean to some left-leaning lawyers who counsel universities. (Other academics, like Richard Osborne at Mesabi Community College, have also been punished for “retaliation” for speaking out vigorously in their own defense; Osborne’s punishment was rescinded only after he brought a free-speech lawsuit.) To these lawyers, current legal norms and notions of academic freedom privilege white male faculty at the expense of minority complainants, giving them insufficient protection.

When law professors at the Volokh Conspiracy law blog condemned Widener’s treatment of Connell, most of its lawyer readers disagreed with Widener’s “retaliation” finding in the comment thread. But a liberal employment lawyer who represents universities disagreed, arguing that Widener was not only permitted but legally “compelled to punish” Connell for “retaliation.” Brushing aside the arguments of many other lawyers pointing out that Connell’s e-mail did not legally amount to “retaliation,” that commenter, who represents employers, argued that simply proclaiming your innocence without even mentioning the name of your accuser can be retaliation. He claimed that Connell, who had received high marks for his teaching (and successfully handled high-profile cases in court), was a “warped,” “underachieving white male” who should have been fired. People wrongly accused of harassment, he said, should just keep their “mouth shut and let the process” work, “not contact” potentially helpful witnesses, and “say nothing to anyone.” He argued, “when you are accused of race and sex discrimination, it is best to be silent . . . And you should keep silent unless and until you have been exonerated.” (That is a prescription for disaster in dealing with a campus kangaroo court, or in getting sympathetic witnesses to come forward to rebut a claim that a professor’s classroom remarks created a racially-harassing “classroom climate.”) Exuding racial grievance against whites, he depicted those who disagreed with him as racists, and called the conservative Connell an “anti-black bigot,” citing the alleged existence of “OBVIOUS historical antipathy between conservatives (especially white male ones) and minorities” — even as he claimed that jurors were legally “required” to find O.J. Simpson not guilty. As a commenter observed in response, lawyers like this are “part of the whole victimhood industry . . . ‘advising’ clients to genuflect before the gods of political correctness, lest they be harmed.”

Lawyers who practice employment and discrimination law — including those who represent management — are a lopsidedly liberal lot. In my employment-law class at Harvard Law School, my classmates were overwhelmingly hostile to employers in harassment and retaliation cases. Ironically, some of those classmates now have jobs representing employers and advising them on their legal responsibilities. Their advice may well be colored by their ideology, and may lead to their clients firing innocent employees as “harassers” or “retaliators.” Moreover, broad legal definitions of “harassment” and “retaliation” create more lawsuits, and thus more demand for these lawyers’ services, benefiting them financially. Both plaintiffs’ lawyers and lawyers for colleges and universities benefit financially from more “retaliation” and harassment lawsuits being brought against educational institutions.

There is an additional, alternative reason why Widener’s finding that Connell engaged in illegal retaliation was erroneous: the complainants’ allegations were legally unreasonable and thus not protected against “retaliation.” Retaliation against a harassment complainant is not legally prohibited if the complaint was based only on trivially offensive speech, as the Supreme Court made clear in Clark County School District v. Breeden (2001). Thus, a harassment complaint based on a single racist utterance was not protected against retaliation by the civil-rights laws, according to an appeals court in Jordan v. Alternative Resources, because that utterance could not reasonably be perceived as illegal harassment. No reasonable person would think that Connell’s perfectly defensible classroom remarks were illegal racial harassment. (Note that while such unreasonable harassment charges are not statutorily protected against retaliation if made to an employer or college, they are protected if made to a civil-rights agency; agency complaints, unlike in-house complaints, are generally protected even if false, malicious, and deceitful.)

This article is an adaptation of an essay that I published earlier at Minding the Campus.