BY HANK REICHMAN

In a major victory for academic freedom and freedom of expression, on June 19 an arbitrator reversed San Jose State University’s despicable decision to dismiss a tenured full professor for her participation in pro-Palestinian protests, ordering her immediate reinstatement.

The case of Professor of Justice Studies Sang Hea Kil has gained international attention.  Her case was featured in the AAUP’s video series “Faculty on the Front Lines” here.

Professor Kil was charged with “unprofessional conduct” in three incidents: the disruption of a February 2024 classroom lecture by a visiting professor; a May 8, 2024 sit-in protest; and a May 13-26 campus encampment.   Under the Collective Bargaining Agreement (CBA) between the California Faculty Association (CFA) and the California State University, her case was heard first by a Faculty Hearing Committee, which found that Professor Kil had violated the university’s Time, Place and Manner (TPM) Policy in two of the incidents but had not violated additional policies charged by the university.  More important, the committee concluded that the university had made a “meager case” for dismissal and, seeing that Professor Kil had already suffered “significant negative consequences,” declined to impose any disciplinary sanction.

On November 21, 2025, San Jose State President Cynthia Teniente-Matson responded to the committee by accepting its findings as to university policies violated by Professor Kil but rejecting its finding that she did not violate other policies and, most important, imposing a sanction of dismissal.  Hence, as of November 26, Professor Kil’s employment was terminated.  As provided by the CBA, Professor Kil appealed her dismissal to binding arbitration and in March of this year arbitrator Howard L. Pearlman held five days of hearings.

Accepting the faculty committee’s findings that Professor Kil had violated the TPM policy, in a cogently argued and judicious 39-page ruling the arbitrator considered whether these violations constituted “unprofessional conduct” sufficient to justify dismissal:

the issue presented in this case is not whether Dr. Kil violated one or more University policies during the protests, but whether her conduct during the protests was “unprofessional,” that is, involved a failure to conform with rules and ethics applicable to a university professor or was unbecoming a university professor in good standing.  As discussed below, the undersigned concludes that Dr. Kil’s conduct during the protests, primarily her disregard or disobedience of the TPM Policy, was unprofessional and cause for discipline. . . .

However, he continued,

the sanction of dismissal imposed on Dr. Kil was excessive and disproportionate to the unprofessional conduct she committed.

Dr. Kil’s unprofessional conduct all related to the exercise of her constitutional right of free speech. . . .

[T]he propriety of imposing the ultimate sanction of employment termination for free-speech activity, even if its exercise clashed with institutional restrictions, is questionable. As the U.S. Supreme Court observed in Pickering v. Board of Education (1968) 391 U.S. 563, 674: “[T]he threat of dismissal from public employment is . . . a potent means of inhibiting speech.”

The decision also acknowledged several “mitigating factors”:

Dr. Kil has been employed by SJSU for more than 17 years, progressing to full Professor and achieving tenure.  She is a published author of an award-winning book and has been honored by the University with awards for her global  citizenship and lifetime faculty service.  In her 17 years of employment, no disciplinary action was taken against Dr. Kil and no evidence was submitted of her having violated any University policies.

As had the faculty committee, the arbitrator also stressed that “the sanction of dismissal is disproportionate to the sanctions imposed in other recent disciplinary actions.”  A professor at another CSU, who was “arrested while participating in an April 2024 pro-Palestinian student take-over of a university building” resulting in property damage and disruption of classes, was merely reprimanded.  A professor at a third CSU received a one-month suspension “after she was found to have pushed barricades into law enforcement officers” during a campus protest.  “In contrast to the conduct in these contemporaneous disciplinary actions, Dr. Kil did not commit a violent act, did not encourage anyone to do so, and did not seriously disrupt University operations.”

“Again,” the arbitrator concluded, “the primary sanctionable conduct was participating in spontaneous, arguably overzealous exercises of free speech in the midst of international protests of the killing and destruction in Gaza, and the harm caused was disruption of a class in session.”  Hence, the arbitrator agreed with the faculty committee “that the sanction imposed on Dr. Kil should not be greater than the most severe sanction imposed in the recent cases . . . which was a one-month suspension.  While that case involved physical violence (pushing a barrier into a peace officer) and this case involves interference with the freedom of others to teach and learn, both cases involved conduct by university professors during protests related to a humanitarian crisis that exceeded the bounds of acceptable behavior without causing serious harm.”

On this basis arbitrator Pearlman ordered Professor Kil’s immediate reinstatement with “any and all back pay that may be due her.”

I testified in both writing and orally as an expert witness on behalf of Professor Kil at both the faculty committee hearing and in arbitration.*  I argued that Professor Kil’s actions should be protected by academic freedom even if many might find them ill-advised and even if they could be construed to violate a university policy.  And while I continue to believe that she should not have faced any sanction greater than, perhaps, a reprimand, the most important aspect of this case was the university’s cavalier and cruel termination of Professor Kil’s employment.  I therefore welcome and applaud the arbitrator’s ruling.

The AAUP also took up Professor Kil’s defense, as Anita Levy, senior program officer in the AAUP’s Department of Academic Freedom, Tenure, and Governance, wrote three times to President Teniente-Matson in support of Professor Kil.  In my own testimony I wrote:

Just as those exercising their right to freedom of speech may still offend others and violate norms of civility, faculty members exercising their academic freedom right to extramural expression do not need to conform to others’ ideal of professional decorum.  Moreover, it is the faculty member’s entire record and not just one or two incidents that must be assessed.

The right to assemble and protest university policies and government actions is inextricably linked to the right to extramural expression.  In her letter Dr. Levy called attention to the AAUP’s August 2024 statement condemning the hasty enactment of overly restrictive policies governing faculty members’ rights to assemble and protest on campus.  Most of these policies have been adopted in response to various demonstrations against the Israeli government’s assault on Gaza in response to the horrendous attacks of October 7, 2023.  As Dr. Levy notes, the “action to dismiss Professor Kil has occurred in the context of external political pressure and escalated demands nationwide that higher education institutions restrict what can be said or expressed on campus, especially in relation to the war in Gaza.”

The most serious charge against Professor Kil involved her participation in the disruption of the classroom lecture, in which both the faculty committee and the arbitrator found that she had violated the TPM Policy.  (The faculty committee also found that her participation over three days of the ten-day encampment was also such a violation.  However, no other university employee and no students were disciplined for this activity and it was not the main focus of the case.)   Here is what I said  about that incident in my written testimony to the faculty committee:

To be sure, disrupting a class should be a serious violation, although in and of itself hardly one justifying the dismissal of even a nontenured faculty member, much less a tenured one.  But this was no ordinary class.  As the university’s own investigation acknowledges, the talk was originally scheduled to take place in a significantly larger room at the University Library, which, as is well known, is a venue open not only to the university community but to the general public.  It thus had the appearance not of a class but of a public presentation, which is apparently how it was originally promoted.  When protesters arrived at the library, however, they found a sign indicating that the talk had been moved, but no indication that it was no longer open to attendees not enrolled in the class.  Arguably, it is this confusion that led to the minor melee outside the class in which Professor Kil found herself.

Indeed, that melee was triggered when a pro-Israeli professor grabbed a student protester.  That professor, the arbitrator noted, “received no discipline and was apparently placed on the Fall 2024 teaching schedule but retired over the summer.”  Moreover, the protest, the arbitrator stressed, “was unplanned and spontaneous.  This was not a case where protesters set out to disrupt a classroom lecture.  Rather, . . . the last-minute change in venue from public to private, the lack of communication with the protesters who had gathered at the MLK Library, the law enforcement decision to permit protesters to gather in the hallway in violation of the TPM Policy, the exclusion of the protesters from the classroom, the incident involving [the pro-Israeli professor], and the law enforcement decision to evacuate the classroom rather than disperse the protesters, all contributed to the circumstances under which the chanting occurred.  For that . . . the University bears some responsibility for the lecture being disrupted.”  Indeed, I would argue that the incident was not so much about free expression than it was illustrative of the general ineptitude with which far too many colleges and universities managed protests surrounding the Gaza war.  To hold a single professor responsible is absurd.

In her July 8, 2025, letter to President Teniente-Matson Dr. Levy stressed that “academic freedom includes the right of faculty members to ‘be free from institutional censorship or discipline’ when ‘they speak or write as citizens,’” what is commonly referred to as the right of extramural expression.  Quoting the 1970 interpretive comments to the 1940 Statement, she repeated that “a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position.  Extramural utterances rarely bear upon the faculty member’s fitness for the position.  Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.”

With respect to this fitness standard I will conclude by quoting again from my written testimony:

Professor Kil serves as a faculty member in the Department of Justice Studies.  To be sure, San Jose State is not required to hire faculty in this field, but since it has made that commitment, it must judge those faculty members by their fitness to teach or conduct research in that field.  Perhaps the university has adopted written standards of what faculty fitness (or competence) in justice studies entails, but whether it has done so or not, by granting tenure to Professor Kil it has acknowledged that she meets discipline-appropriate standards of fitness and competence.  And clearly from her record the university knows full well that Professor Kil approaches her subject not simply as an abstract concept; she is both a scholar of and activist for justice.  As such, in assessing her behavior in this case one must apply an appropriate standard of fitness.  In short, it should come as no surprise to the university administration that a professor they have tenured in justice studies is likely to participate in events on campus where members of the campus community, students, faculty, or staff, are protesting what they believe to be injustice.

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* In a post-hearing brief CSU attorneys sought to discredit my testimony by citing at length passages from my books which, they alleged, contradict statements I made at the hearing.  (They clearly do not.)  Here is how arbitrator Pearlman responded:  “First, while CSU asserts that Dr. Reichman claimed to be basing his opinions on the two books, the undersigned could find no such statement by Dr. Reichman in the record.  Regardless, without giving Dr. Reichman the opportunity to address CSU’s excerpts from his publications either on cross-examination or redirect, CSU’s argument in its Closing Brief based on those excerpts is not helpful to the adjudicatory process and will be disregarded.”

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and chair of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom was published in October, 2021; a second edition came out in March 2025.  He is a member of AAUP’s Committee on College and University Governance and President of the At-Large Chapter.