BY HANK REICHMAN

Recently I was asked by a publication with an audience of college and university administrators what advice I might have about how to respond to attacks on faculty members’ extramural expression.  I said this: “No matter how controversial the faculty member’s alleged expression may be, do not apologize for it or formally disassociate the institution from it.  The appropriate response is simply to reaffirm that all faculty members speak for themselves and that their speech is protected by academic freedom and, in public institutions, the First Amendment.”

I believe this is almost always good advice.  Far too frequently administrators are too quick to “disassociate” their institutions from or outright condemn controversial faculty statements and too slow to defend their faculty’s academic freedom.  But sometimes it’s necessary to say more.  As I wrote in July about the case of U. of Pennsylvania law professor Amy Wax,

As a general rule, all public comments made by faculty members as citizens, whether controversial, indisputable, or merely innocuous, never “represent” the institution.  That should always be clear.  Hence an administration need not, and in many, perhaps most, cases should not publicly criticize its faculty’s controversial views. . .   Still, in cases where certain fundamental institutional commitments central to fulfillment of higher education’s mission are concerned, condemnation may be necessary, especially if the faculty member is not the target of a potentially dangerous online (or even physical) mob that such condemnation might encourage. . . .   Administrators are within their rights to criticize or even condemn remarks or positions taken by their faculty members; such comments alone do not abridge academic freedom.  But in most cases such criticisms are nevertheless ill-advised and may prove harmful, especially when they are not accompanied by a vigorous defense of the faculty member’s right to make controversial public statements.

Aaron Barlow has already discussed on this blog the case of professor Eric Rasmusen in the Kelley School of Business at Indiana University, which seems to me a similar instance.  Here is the full text of the statement issued November 20 by Indiana Provost Lauren Robel in response to calls for Rasmusen’s dismissal after his latest misogynistic tweet:

Professor Eric Rasmusen has, for many years, used his private social media accounts to disseminate his racist, sexist, and homophobic views.  When I label his views in this way, let me note that the labels are not a close call, nor do his posts require careful parsing to reach these conclusions.  He has posted, among many other things, the following pernicious and false stereotypes:

• That he believes that women do not belong in the workplace, particularly not in academia, and that he believes most women would prefer to have a boss than be one; he has used slurs in his posts about women;
• That gay men should not be permitted in academia either, because he believes they are promiscuous and unable to avoid abusing students;
• That he believes that black students are generally unqualified for attendance at elite institutions, and are generally inferior academically to white students.

Ordinarily, I would not dignify these bigoted statements with repetition, but we need to confront exactly what we are dealing with in Professor Rasmusen’s posts.  His expressed views are stunningly ignorant, more consistent with someone who lived in the 18th century than the 21st.  Sometimes Professor Rasmusen explains his views as animated by his Christian faith, although Christ was neither a bigot nor did he use slurs; indeed, he counseled avoiding judgments.  Rhetorically speaking, Professor Rasmusen has demonstrated no difficulty in casting the first, or the lethal, stone.

His latest posts slurring women were picked up by a person with a heavily followed Twitter account, and various officials at Indiana University have been inundated in the last few days with demands that he be fired.  We cannot, nor would we, fire Professor Rasmusen for his posts as a private citizen, as vile and stupid as they are, because the First Amendment of the United States Constitution forbids us to do so.  That is not a close call.

Indiana University has a strong nondiscrimination policy, and as an institution adheres to values that are the opposite of Professor Rasmusen’s expressed values.  We demand tolerance and respect in the workplace and in the classroom, and if Professor Rasmusen acted upon his expressed views in the workplace to judge his students or colleagues on the basis of their gender, sexual orientation, or race to their detriment, such as in promotion and tenure decisions or in grading, he would be acting both illegally and in violation of our policies and we would investigate and address those allegations according to our processes.  Moreover, in my view, students who are women, gay, or of color could reasonably be concerned that someone with Professor Rasmusen’s expressed prejudices and biases would not give them a fair shake in his classes, and that his expressed biases would infect his perceptions of their work.  Given the strength and longstanding nature of his views, these concerns are reasonable.

Therefore, the Kelley School is taking a number of steps to ensure that students not add the baggage of bigotry to their learning experience:

• No student will be forced to take a class from Professor Rasmusen.  The Kelley School will provide alternatives to Professor Rasmusen’s classes;
• Professor Rasmusen will use double-blind grading on assignments; if there are components of grading that cannot be subject to a double-blind procedure, the Kelley School will have another faculty member ensure that the grades are not subject to Professor Rasmusen’s prejudices.

If other steps are needed to protect our students or colleagues from bigoted actions, Indiana University will take them.

The First Amendment is strong medicine, and works both ways.  All of us are free to condemn views that we find reprehensible, and to do so as vehemently and publicly as Professor Rasmusen expresses his views.  We are free to avoid his classes, and demand that the university ensure that he does not, or has not, acted on those views in ways that violate either the federal and state civil rights laws or IU’s nondiscrimination policies.  I condemn, in the strongest terms, Professor Rasmusen’s views on race, gender, and sexuality, and I think others should condemn them.  But my strong disagreement with his views—indeed, the fact that I find them loathsome—is not a reason for Indiana University to violate the Constitution of the United States.

This is a lesson, unfortunately, that all of us need to take seriously, even as we support our colleagues and classmates in their perfectly reasonable anger and disgust that someone who is a professor at an elite institution would hold, and publicly proclaim, views that our country, and our university, have long rejected as wrong and immoral.

Lauren Robel
Executive Vice President and Provost

While I wish Robel had invoked academic freedom in addition to or instead of the First Amendment, I find this statement both admirable and appropriate.  It defends Rasmusen’s free speech rights but makes clear that his contemptible ideas violate fundamental principles that any institution of higher education must defend.  And it rightly distinguishes speech from actions.

However, the statement does raise some thorny issues.  For Robel not only condemned Rasmusen’s views, she took measures designed to ensure that students could not be harmed by actions that might stem from those views.  Her decisions that no student will be required to take one of his classes and that he will be obliged to implement a “double-blind” grading strategy will seem reasonable to many.  But is there evidence that Rasmusen’s speech has been translated into action?  Rasmusen says there has never been a single student complaint against him and Robel did not claim there were any.

Wax was also removed from teaching required classes.  In response to that case Keith Whittington wrote on this blog, “professors are allowed to denigrate groups of people in such a way that students might fear that they will not be treated fairly in the classroom.  Professors are not allowed to in fact treat students unfairly.”  He continued, “Professors might say things in public that give administrators good cause to scrutinize whether professors are in fact treating students unfairly.  But the fact that students are made uncomfortable by the fact that a professor might think badly of a group to which they belong – or even think badly of an individual student! – does not define the boundary of academic freedom.”

While I agreed with this in principle, I thought Whittington was drawing “too clear a line:”

On the one hand, removal from teaching required classes can be seen as a legitimate use of institutional authority to assign workload.  After all, faculty appointments, including those with tenure, do not guarantee that appointees will always be able to teach the classes they desire.  On the other hand, there is at least a whiff of disciplinary action here.  Could such a reassignment not be seen as punishment?  Frankly, I can’t say, and the question would best be resolved through academic due process at the institutional level.

And that is where I believe there may be cause for some concern.  The AAUP’s Recommended Institutional Regulations on Academic Freedom and Tenure, Section 5, states: “If the administration believes that the conduct of a faculty member, although not constitut­ing adequate cause for dismissal, is sufficiently grave to justify imposition of a severe sanction, such as suspension from service for a stated period, the administration may institute a proceeding to impose such a severe sanction.”  In such a proceeding the procedures governing dismissal should apply.

Do the measures taken against Professor Rasmusen constitute such a “severe sanction?”  Or are these also legitimate uses of institutional authority?  I think it’s the latter, but others may differ.  Moreover, such a distinction is of necessity context-dependent.  And that’s why a due process procedure before a duly constituted faculty hearing committee akin to that defined by the AAUP could be in order.