BY JOHN K. WILSON

In Part 1 of my defense of Lars Jensen, a tenured math professor at Truckee Meadow Community College (TMCC) in Nevada, I examined why TMCC can’t fire Jensen for his pedagogical choices, or some trivial complaints about his paperwork. 

But now I want to focus on the core reason why TMCC wants to fire Jensen, in retaliation for his criticism of the TMCC administration’s plans to lower standards in its math classes.

The key aspect of the “insubordination” charge against Jensen was a dispute between his dean and Jensen at a campus Math Summit in 2020. Jensen tried to ask a question critiquing the administration’s plans. But he was cut off and his question went unanswered, so Jensen went to his office, typed out his views, printed out some copies, and then brought them back to the Math Summit, where he handed them out to faculty during a break. The dean ordered Jensen not to distribute his flyer, a clear violation of his constitutional rights.

It amazes me that I need to say this, but administrators cannot ban faculty from giving pieces of paper to each other during a break at an event. This is not a difficult issue. Incredibly, the administration argued that it can not only ban a professor at a public college from giving pieces of paper to others during a break at a public event, but can even fire the professor for this paper crime. 

This handout is a classic example of an extramural utterance, where Jensen was discussing a matter of public concern about academic standards, and his handout even mentions the community concerns about math standards. An extramural utterance, whether it is criticism of the government or criticism of the college administration, cannot be punished by a public college, as the Nevada Code 2.3.4 acknowledges (“A faculty member speaking, writing or acting as a citizen shall be free from institutional censorship or discipline”).

A public college cannot ban handouts during an event break. Dean Julie Ellsworth makes several claims in her evaluation of Jensen that must be rejected. Distributing handouts is not an “interruption of system function” because handouts do not interrupt anything. Dean Ellsworth claims that the rules apply to “Interruption of even social events.” It is extraordinarily difficult to interrupt a social event because there is no central activity happening at a social event to disrupt. Handing out pieces of paper is definitely not an interruption.

According to Dean Ellsworth, “It is up to the organizers of an event to determine what is distributed at that event.” This is completely untrue. The organizers of an event cannot determine what pieces of paper attendees give to one another during a break any more than they could control what people say to one another during a break. The organizers of an event only get to determine what ideas and handouts they themselves distribute at an event at a public college. The fact that a board at the back was provided to participants cannot justify censorship, because public colleges do not get to dictate the means of communication to faculty or students or participants at events.

Dean Ellsworth claims that avoiding “confusion” was the reason for the ban. But there was no confusion that the piece of paper Jensen was personally handing out criticizing the administration could be anything other than his view. The fear of confusion is not a legitimate reason for censorship. Since public colleges are required to use the least restrictive means possible whenever imposing any time, place, and manner restrictions, it would have been easy for Dean Ellsworth to prevent any confusion by announcing to the Math Summit that Jensen’s piece of paper criticizing the administration was not an official administration view, which of course everybody already knew.

Apart from Jensen’s academic freedom and First Amendment rights to express his views, his act of handing out a piece of paper cannot be insubordination under TMCC’s definition because the dean’s order for him to stop was not a written order.

John Albrecht, the General Counsel for TMCC, wrote a brief to the hearing officer objecting to my arguments. He claimed, “Academic freedom flows from the 1st Amendment so are subject to the usual test of the 1st Amendment.” This is absolutely incorrect. There is a First Amendment right to academic freedom under the Keyishian ruling and many other precedents. But that is not the only meaning of academic freedom, which applies to both public colleges and private colleges (which are not subject to the First Amendment). In McAdams v. Marquette, the Wisconsin Supreme Court ruled that Marquette violated its promises to protect academic freedom, even though the First Amendment and its doctrines do not apply to a private university.

The AAUP’s 1915 Declaration establishing the idea of academic freedom came before there was any legal doctrine of academic freedom (or any enforcement of the 1st Amendment of any kind by the Supreme Court). The idea of academic freedom was meant first as a moral code that colleges were morally obligated to follow. The second part of academic freedom was its adoption into the formal policies of colleges, which became contractual obligations. And then the third part of academic freedom was its recognition as a Constitutional right. 

So those are the three aspects of academic freedom: the moral, policy, and the Constitutional meanings. While TMCC should be careful not to violate the First Amendment (and therefore should have dropped these charges long ago), the faculty judging this case are not legal experts giving a legal judgment. They are academic experts giving an academic judgment primarily focused on the moral and policy meanings of academic freedom, and Jensen’s actions are protected under all of these aspects of academic freedom (as well as the First Amendment).

In 1954, the Nevada Supreme Court in State v. Board of Regents of University of Nevada overturned the firing of Professor Frank Richardson on the grounds of insubordination because the professor had criticized the administration for lowering academic standards and distributed a handout to other faculty members. This is a remarkable parallel to Jensen’s case 67 years later. It’s important to note that the Nevada Supreme Court made this ruling long before the US Supreme Court’s expansion of First Amendment protections and recognition of academic freedom in the 1960s. Yet even during the height of McCarthyism, the Nevada Supreme Court firmly rejected the attempt of a public college to fire a dissenting professor using the excuse of “insubordination.” This strong precedent shows that TMCC is almost certain to lose a lawsuit even if it succeeds in pressuring faculty to go along with its retaliatory efforts to dismiss Lars Jensen for daring to disagree with the administration.

John K. Wilson was a 2019-20 fellow with the University of California National Center for Free Speech and Civic Engagement, and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies.