BY HENRY REICHMAN

Teresa Buchanan, the Louisiana State University (LSU) education professor terminated over strong objections from a faculty review committee and the Faculty Senate, last week filed a federal First Amendment lawsuit against the  president of LSU and other top administrators for violating her free speech and due process rights by firing her last year.  The suit also indirectly challenges the sexual harassment definition propounded by the U.S. Department of Education.  The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, the eleventh in FIRE’s national Stand Up For Speech Litigation Project.  The AAUP Foundation’s Academic Freedom Fund earlier provided a grant of $6,000 for Buchanan’s legal and other expenses.

Buchanan was fired for her alleged occasional use of profanity and sexual language in preparing her adult students to be effective teachers. LSU claimed Buchanan’s teaching methods violated its policy prohibiting “sexual harassment” of students, which defines sexual harassment as “unwelcome verbal, visual, or physical behavior of a sexual nature.” LSU’s policy mirrors the language of the sexual harassment definition propagated by the U.S. Departments of Education and Justice in 2013 as “a blueprint for colleges and universities throughout the country” and which “unlawfully equate all speech of a ‘sexual nature’ with sexual harassment.”  The suit charges that the university’s policy has no regard for First Amendment protections governing free speech and academic freedom.

“Under this approach, speakers may be punished – up to and including expulsion or termination – if a listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably,” according to the complaint.

On September 2, the AAUP released a supplementary report about Buchanan’s dismissal from LSU, which has been on the AAUP’s list of censured administrations since 2012.  The report raises questions about the extent to which LSU followed its own policies and AAUP-approved principles of due process in its dismissal of Buchanan.  By an overwhelming 39-5 vote the LSU Faculty Senate voted October 6 to censure three top administrators for their roles in Buchanan’s dismissal.

Faculty Senate President Kevin Cope, a member of the AAUP Council, said a disciplinary committee concluded that Buchanan “wavered beyond the professional norm” and recommended sanctions. But the committee found her behavior did not warrant dismissal.  Cope said he worried Buchanan’s firing would discourage talented students and faculty from coming to LSU, for fear their speech or teaching methods would be regulated. “The administration has demonstrated that it won’t deal with difficult or dangerous or hot or charged ideas of the kind that are usually debated at a major research institution,” he said.

“FIRE predicted that universities would silence and punish faculty by using the Department of Education’s unconstitutional definition of sexual harassment—and that’s exactly what happened at LSU,” said FIRE Director of Litigation Catherine Sevcenko. “Under this broad definition of sexual harassment, professors risk punishment for teaching or discussing sex-related material, be it Nabokov’s Lolita or the latest episode of The Bachelor. Now Teresa is fighting back to protect her rights and the rights of her colleagues.”

FIRE and others have warned that policy language like LSU’s fails to meet the Supreme Court’s controlling standard for sexual harassment in the educational context and is unconstitutional.  [A joint subcommittee of AAUP’s Committee A on Academic Freedom and Tenure and its Committee on the Status of Women in the Profession is currently preparing a major report on the use and abuse of sexual harassment charges under Title IX.]

In March 2015, a faculty committee unanimously determined that the university should not consider terminating Buchanan’s employment. The panel of her peers ruled that it would be sufficient for Buchanan to modify her behavior. The LSU administration ignored the faculty recommendation, and in June 2015, LSU’s Board of Supervisors fired Buchanan. In a subsequent statement to the press, LSU justified its actions by stating that it was following “the U.S. Department of Education’s Office of Civil Rights’ [sic] advisements.”

“It’s a professor’s job to provoke students into thinking and examining their assumptions,” Buchanan said, “and that’s precisely what I did. You don’t have to be a lawyer to know it’s wrong to fire a professor for exercising her academic freedom. LSU said I offended some people, called it sexual harassment, and fired me. In doing so, they violated LSU’s promises of free speech and academic freedom for its faculty.”

“LSU is not alone in having a policy that mirrors the Department of Education’s unconstitutional definition of sexual harassment,” said FIRE Executive Director Robert Shibley. “Colleges across the country such as Clemson, Penn State, and the University of Connecticut have also adopted the language, which threatens the free speech rights of countless faculty members just like Teresa. FIRE has long said the definition is unconstitutional. We think a federal court will do the same.”

FIRE retained preeminent First Amendment attorney Robert Corn-Revere of the law firm Davis Wright Tremaine and his colleagues Ronald London and Lisa Zycherman to represent Buchanan.