As public schools and universities shamelessly discipline educators for exercising their rights of free speech, some are beginning to resist.
As public schools and universities shamelessly discipline educators for exercising their rights of free speech, some are beginning to resist.
T wo weeks ago, Judicial Watch filed a lawsuit on behalf of Kari MacRae, a Massachusetts high-school teacher recently fired in retaliation for social-media posts objecting to critical race theory and gender fluidity in schools. The complaint alleges that the district was particularly concerned with a TikTok video MacRae posted before being hired. In the video, posted in support of MacRae’s candidacy for the school board in another district, she stated:
So pretty much the reason I ran for school board and the reason I’m taking on this responsibility is to ensure that students, at least in our town, are not being taught critical race theory. That they’re not being taught that the country was built on racism. So they’re not being taught that they can choose whether or not they want to be a girl or a boy.
The legal battle over cancel culture is intensifying. Remarkably, schools and universities often admit that their actions are predicated on centrist or conservative views expressed by educators, or their refusal to embrace so-called anti-racist seminars. Schools assert that such views and behavior constitute hate speech, insubordination, and lack of collegiality. The verbiage, denouncements, forced public mea culpas, and loss of employment evoke China’s Cultural Revolution.
The National Association of Scholars tracks disciplinary actions taken against university educators for writing or speaking against progressive dogma. From January 2020 through October 2021, NAS recorded 127 incidents, including at least 50 in which a professor was terminated, forced to resign, or placed on administrative leave. The Foundation for Individual Rights in Education (FIRE), which provides lawyers to assist victims of cancel culture, reports a considerable increase in civil-rights violations, starting last summer.
In July, Judicial Watch filed a lawsuit on behalf of Jeanne Hedgepeth, an Illinois public-high-school teacher who was fired for posting comments on her personal Facebook page criticizing the riots and shootings in Chicago in the aftermath of George Floyd’s death. As part of an exchange of posts, Hedgepeth wrote, in part:
I am about facts, truth seeking and love. I will speak on any topic I choose because I live in a free country. I find the term “white privilege” as racist as the “N” word. You have not walked in my shoes either so do not make assumptions about me and my so called privilege. You think America is racist? Then you have been hoodwinked by the white liberal establishment and race baiters like Jesse Jackson and Al Sharpton. . . . The people I am informed by about the black experience in America are actually some of the smartest people in America. And it so happens they are black.
Hedgepeth went on to praise Thomas Sowell, Candace Owens, and Larry Elder, comment on crime statistics, and bemoan the rate of abortion among blacks.
The school district admits Hedgepeth was fired for her posts but denies she has a First Amendment right to express her views without fear for her job.
In February, Judicial Watch filed a lawsuit on behalf of David Flynn. Flynn was fired as head football coach at Dedham High School in Massachusetts after he raised concerns when his daughter’s seventh-grade history-class curriculum was changed to include biased coursework on politics, race, gender equality, and diversity. Among other things, Flynn objected to a history teacher’s using a cartoon character of herself wearing a t-shirt supporting Black Lives Matter and materials that labeled all police officers as perceived risks to all black people and all black males as perceived risks to white people.
The district said it fired Flynn because he “expressed significant philosophical differences with the direction, goals, and values of the school district.” In its answer to Flynn’s lawsuit, the district denied that as a parent, Flynn has a constitutionally protected right to express his concerns to the school board.
In September, North Carolina State University education professor Stephen Porter filed a lawsuit alleging that he had been demoted, removed from many of his advisory and teaching positions, and siloed into dead-end programs in retaliation for his criticisms of woke ideologies. In a defense eerily reminiscent of excuses once offered for race and gender discrimination, or to send Chinese academics to work camps, NCSU asserted that Porter’s attitudes demonstrated a lack of “collegiality.”
Gordon Klein, a lecturer in accounting at UCLA’s Anderson School of Management, declined to acquiesce to demands that he award lenient grades to black students following George Floyd’s death. As a result, the Anderson School suspended Klein. Its dean, Antonio Bernardo, publicly blasted Klein, and the chair of the faculty executive committee, Carla Hyan, emailed the faculty, characterizing Klein’s behavior as “troubling.” UCLA reinstated Klein only after receiving a demand from FIRE, and insisted that he resume classes the next day. In September, Klein sued for retaliatory discrimination and the business he lost as a result of the school’s public denouncements.
For nearly 20 years, Alliance Defending Freedom (ADF) and David French represented University of North Carolina–Wilmington professor Mike Adams. ADF claimed that after Adams converted to Christianity, UNC subjected the conservative professor to a campaign of academic harassment. Adams committed suicide in July after being forced into retirement for “offensive” tweets.
Adams’s case made new law. In Pickering v. Bd. of Educ. (1968), a public-school teacher wrote a letter opposing a bond issue supported by his school board. The Supreme Court posed the problem as arriving at a balance between the interests of the teacher, as a citizen, in commenting on matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. The Court concluded that “absent proof of false statements knowingly or recklessly made by [the teacher], a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”
In Connick v. Myers (1983), the Supreme Court noted that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Then, in Garcetto v. Ceballos (2006), the Supreme Court limited First Amendment rights for certain government employees acting in their official capacity, but expressly deferred consideration of whether its analysis would apply to a case involving speech related to scholarship or teaching.
In Adams v. UNC–Wilmington (2011), the Fourth Circuit Court of Appeals held that Garcetto’s limitation on First Amendment rights for government employees does not apply to public-university professors. The court wrote that the First Amendment protects not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right, and that Adams’s speech was not converted from protected to unprotected speech by being used in an academic context. In 2014, the Ninth Circuit reached a similar conclusion in Demers v. Austin, and the Fifth Circuit agreed in Buchanan v. Alexander (2019).
Meanwhile, in late 2018, Shawnee State University, in Ohio, disciplined professor Nicholas Meriwether for refusing to use the pronouns requested by a transgender student. ADF sued on Meriwether’s behalf. The district court dismissed the case. But this year, a unanimous panel of the Sixth Circuit Court of Appeals reversed the ruling, holding that Meriwether could sue for violations of his religious and free-speech rights. Joining the Fourth, Fifth, and Ninth Circuits, the court held that the “First Amendment protects the free speech rights of professors when they are teaching.”
In February, following an intense investigation, the University of Central Florida fired psychology professor Charles Negy for “displaying bias and unfair treatment in the classroom.” Negy’s lawyer asserts the investigation was pretextual, commenced the day after Negy tweeted against “black privilege,” including affirmative action and special scholarships. According to his lawyer, Negy’s claims are being arbitrated in a faculty grievance process, after which he has the right to litigate in court.
Shortly after Negy’s dismissal, Speech First, Inc. (SFI), which describes itself as a “nationwide membership organization of students, alumni, and other concerned citizens,” sued UCF. SFI claims that UCF’s policies unconstitutionally restrain and chill the exercise of free speech by faculty and students. In July, a federal judge issued a preliminary injunction against UCF’s Use of Information Technologies and Resources Policy. The remainder of the case is pending.
SFI also has sued Virginia Tech, the University of Illinois, the University of Texas, Iowa State, and the University of Michigan for curtailing free speech through improper speech codes, bias-response procedures, digital-use policies, and other protocols. SFI reached settlements with all the defendants except Virginia Tech. Each of the settling defendants agreed to change its codes and procedures. Yet despite the appeals-court holdings, progressives will continue to use their power to chill conservative voices at least until the Supreme Court or all remaining circuits unambiguously speak.
Editor’s note: This article originally stated that Shawnee State University had fired Nicholas Meriwether. It disciplined him, but did not fire him.