On July 9, 2015, the AAUP sent a letter to Louisiana State University (LSU) President and Chancellor Dr. F. King Alexander indicating that a supplemental report to the public record relating to the LSU administration’s existing presence on the AAUP’s censure list had been authorized. This letter came in response to the administration’s dismissal of Associate Professor Teresa Buchanan, a faculty member at LSU for 20 years, from her tenured position. The AAUP had sent Dr. Alexander a letter on June 30 to express a “sense of outrage” regarding the June 19 action by LSU’s Board of Supervisors to approve Alexander’s recommendation — rejecting the unanimous conclusion of a faculty committee — that Buchanan be dismissed from the faculty as of that date and to request that the administration modify its position.

Now, in an August 3 letter to Alexander, the National Coalition Against Censorship (NCAC)  and the Foundation for Individual Rights in Education (FIRE) have also expressed strong opposition to Buchanan’s dismissal, citing serious questions about “the First Amendment and due process issues implicated by the university’s actions.”  The letter, co-signed by leaders of both groups, argues that the school’s action cannot be justified as an effort to enforce laws against sexual harassment under Supreme Court decisions distinguishing between language that might constitute harassment and language that is protected under the First Amendment.

“The laudable and necessary efforts to eliminate sexual harassment and other forms of sex discrimination do not justify trampling other fundamental rights,” said NCAC Executive Director Joan Bertin, a consultant to AAUP’s Committee A on Academic Freedom and Tenure. “Teresa Buchanan’s case is a bellwether for the urgent debates over free speech and academic freedom happening on campuses across the country.”

“We are aware of the concerns about academic freedom raised in a letter dated June 30, 2015, from the American Association of University Professors,” the letter says, “and we concur with those views. Like the AAUP, we are particularly disturbed by the discrepancy between the charges brought against Professor Buchanan – which were addressed in a hearing conducted by the faculty review committee, which you appointed – and the grounds for termination specified in your letter of April 2, 2015.”

Here is the full text of the NCAC/FIRE letter:

August 3, 2015
Dr. F. King Alexander
President and Chancellor
Louisiana State University
3810 West Lakeshore Drive
Baton Rouge, LA 70808

Dear Dr. Alexander:

As organizations focused on the constitutional obligations of public educational institutions, we were dismayed to learn of the recent decision to terminate Teresa Buchanan, a tenured professor with nearly 20 years of service at the university. We write to address the First Amendment and due process issues implicated by the university’s actions.

The National Coalition Against Censorship, founded in 1974, is an alliance of 52 national nonprofit organizations, including religious, artistic, professional, educational, labor and civil liberties groups, committed to preserving freedom of expression as a vital element of democratic society and an essential human right. The Foundation for Individual Rights in Education is a nonpartisan, nonprofit organization dedicated to defending student and faculty rights on our nation’s college and university campuses. Protection of academic freedom is part of our core missions: “educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 637 (1943).

We are aware of the concerns about academic freedom raised in a letter dated June 30, 2015, from the American Association of University Professors, and we concur with those views. Like the AAUP, we are particularly disturbed by the discrepancy between the charges brought against Professor Buchanan – which were addressed in a hearing conducted by the faculty review committee, which you appointed – and the grounds for termination specified in your letter of April 2, 2015.

The review committee was charged with determining whether there was “clear and convincing evidence” to support the charge that Professor Buchanan violated policies dealing with sexual harassment, PS-73 and PS-95, and created a “hostile learning environment” “through her use of profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes’ in her teaching methodologies.” The committee also considered a charge that she violated the Americans with Disabilities Act.

In an opinion dated March 20, 2015, the faculty committee determined that, while she had violated school policies:

There was no evidence that this behavior was systematically directed at any particular individual. There was evidence that some individuals observing the behaviors were disturbed by the behaviors. There was no evidence of a “Quid Pro Quo” violation.” The charges of ADA violations were not substantiated by testimony.

Further, “The committee unanimously finds that removal with cause should not be considered in this case.”

Notwithstanding these findings, your letter dated April 2, 2015, relates your decision to recommend her dismissal for cause, based in part on “the evidence presented at the hearing and the report from the Committee of the Faculty,” and in part on an “investigation by Human Resource Management.” Your letter provided no explanation for the inconsistencies between your decision and the findings and recommendations of the faculty committee, nor did it explain the basis on which an investigation by Human Resource Management “concluded that [Buchanan] violated the Americans Disabilities Act [sic],” while the faculty committee expressly found otherwise. 1

More recently, the university issued a statement claiming that the termination was based not just on the charges addressed in the hearing held by the faculty committee, but also on an alleged “history of inappropriate behavior that included verbal abuse, intimidation and harassment of our students.”2 Reliance on allegations of wrongdoing that were not presented to Buchanan in a timely fashion and that the faculty review committee did not review or consider violates not only constitutional due process principles but also your own internal procedures.

Indeed, based on the information we have received, this is but one of numerous failures to comply with both internal procedures and constitutional due process. Taken together, the pattern displays at best indifference to basic constitutional rights and principles of fairness, and at worst the appearance of a concerted campaign to terminate Professor Buchanan, regardless of whether such action is justified by the facts.

We turn now to the equally serious question whether the allegations against Professor Buchanan, even if proved, constitute a violation of Title IX, or whether they target speech protect by the First Amendment. While we fully support efforts to eliminate sexual harassment and other forms of sex discrimination, pursuit of that goal does not justify trampling other fundamental rights. Moreover, in our view the cynical misapplication of Title IX that occurred in this case undermines rather than promotes the cause of gender equity.

There is a consistent body of Supreme Court case law defining sexual harassment and hostile environment in education and employment. The first major decision in an employment discrimination case, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), established that for “sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of the [the victim’s] employment and create an abusive working environment.’” Id. at 67.

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), an employment discrimination case based on claims of verbal harassment, reaffirmed the Court’s approach in Meritor, noting that offensive language alone is ordinarily insufficient to make out a hostile environment claim. Rather, “whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at … the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23. See also Clark County School District v. Breeden, 532 U.S. 268, 271 (2001) (“simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to” harassment); Pennsylvania State Police v. Suders, 542 U.S. 129, 146 (2004) (reiterating Meritor threshold for actionable sexual harassment claims).

Rulings in cases in the educational context have adopted a similar analysis. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), a case concerning student-on-student harassment in an educational environment, the Court held that harassment must be “so severe, pervasive, and objectively offensive, that it effectively bars the victim’s access to an educational opportunity or benefit.” Id. at 633. The Court further noted that “harassment depends on a constellation of surrounding circumstances, expectations, and relationships.” Id. at 651. The cautious approach to regulating speech – even speech that allegedly promotes discrimination – reflects an effort by the Court to respect rights under the First Amendment as well as those granted by civil rights laws.

It is clear from Justice Kennedy’s dissenting opinion in Davis that First Amendment concerns had a prominent place in the Court’s deliberations:

A university’s power to discipline its students for speech that may constitute sexual harassment is also circumscribed by the First Amendment. A number of federal courts have already confronted difficult problems raised by university speech codes designed to deal with peer sexual and racial harassment. See, e. g., Dambrot v. Central Mich. Univ., 55 F. 3d 1177 (CA6 1995) (striking down university discriminatory harassment policy because it was overbroad, vague, and not a valid prohibition on fighting words); UWM Post, Inc. v. Board of Regents of Univ. of Wis. System, 774 F. Supp. 1163 (ED Wis. 1991) (striking down university speech code that prohibited, inter alia, “’discriminatory comments’” directed at an individual that “’intentionally . . . demean’” the “’sex . . . of the individual’” and “’[c]reate an intimidating, hostile or demeaning environment for education, university related work, or other university-authorized activity’”); Doe v. University of Mich., 721 F. Supp. 852 (ED Mich. 1989) (similar); Iota XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F. 2d 386 (CA4 1993) (overturning on First Amendment grounds university’s sanctions on a fraternity for conducting an “ugly woman contest” with “racist and sexist” overtones).

Id. at 667 (Kennedy, J., dissenting). Indeed, the four dissenting justices considered even the majority’s narrow definition of cognizable harassment (“so severe, pervasive, and objectively offensive, that it effectively bars the victim’s access to an educational opportunity or benefit”) inadequate to safeguard speech protected under the First Amendment. It is highly unlikely that the Court would countenance expanding those boundaries further, and certainly there is no basis to conclude that a lesser standard would pass legal muster.

Based on the findings of the review committee, Buchanan’s speech consisted of “mere offensive utterance[s],” “offhand comments, and isolated instances.” As such, it was fully protected under the First Amendment. Moreover, there is absolutely no evidence that the alleged harassment was so “severe, pervasive, and objectively offensive, that it effectively [barred] the victim’s access to an educational opportunity or benefit.” Instead, the committee found only that “some individuals … were disturbed.” Accordingly, LSU’s termination of Buchanan raises serious questions under the First Amendment.

The fact that some observers were disturbed by Buchanan’s speech does not deprive it of constitutional protection. The First Amendment protects even speech that is deeply offensive and substantially more noxious than anything alleged here. In R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 392 (1992), the Court struck down a law targeting bias-motivated crimes involving “words that contain … messages of ‘bias motivated’ hatred ….” While acknowledging that “‘[i]t is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear,’” the Court held that “the manner of that confrontation cannot consist of selective limitations upon speech. … The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.” Id. (references omitted).

These and other decisions indicate that anti-discrimination law can and must be carefully interpreted and implemented to avoid conflicts with First Amendment rights. This is In contrast with legal decisions addressing actions as opposed to words: “There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. … When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. ‘Where pure expression is involved,’ anti-discrimination law ‘steers into the territory of the First Amendment.’” Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001) (citation omitted).

In terminating Teresa Buchanan based on a record consisting almost entirely of offhand remarks to adult students, LSU “steers into the territory of the First Amendment.” Overreaching of this sort does not serve the interests of a major state university or its students or the cause of gender equity; to the contrary, it undermines the intellectual integrity and academic standing of the university, and it makes a mockery of legitimate effort to identify and address actionable sexual harassment.

The university’s standing depends on principled adherence to certain fundamental principles, of which due process and free expression form the core:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. … The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (internal quotation omitted).

Much more is at stake than a single professor whose choice of language may have been at most imprudent and disturbing to a few people. The university’s actions affect the entire institution by creating “an atmosphere of suspicion and distrust” in which genuine scholarship and learning cannot flourish. We strongly urge you to reconsider your decision and reinstate Teresa Buchanan.

Sincerely,
Joan Bertin, Esq.
Executive Director
National Coalition Against Censorship (NCAC)

Peter Bonilla
Director, Individual Rights Defense Program
Foundation for Individual Rights in Education (FIRE)

1 The faculty committee findings also specifically note “the closed nature of the HRM investigation” and the fact that Buchanan did not have “an opportunity to resolve charges once specific charges became known.”
2 http://www.lsureveille.com/daily/university-defends-professor-s-firing/article_bd3fd328-2082-11e5-8eb7-23cadc01c30a.html.