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December 20, 2011

Emmer and Keeton--Two Terrible Decisions on Academic Freedom

                                                                     By KC Johnson

Emmer and Keeton.pngIt's not often that a university's personnel decision is so egregious that even the editorial pages of the local newspaper denounce it. That occurred with Hamline University, whose seemingly rescinded appointment to Tom Emmer generated a blistering editorial from the Minneapolis Star-Tribune.

Between 2004 and 2010, Emmer served as a prominent member of the Republican caucus in the Minnesota House of Representatives. In 2010, he gave up his legislative seat to launch a bid for governor, running on a very conservative platform; despite trailing by considerable margins in polls throughout the race, he wound up losing by less than one percent of the vote. After a year in the private sector, Emmer decided to try out academia, and Hamline's Business School made arrangements for him to teach a course in business law and serve as an "executive in residence" for a state/local public policy program that the school was starting. It seemed that both sides considered the semester as a trial run for a possible permanent position.

Then, as word of Emmer's prospective appointment leaked out on campus, the Business School changed its mind. (Hamline maintains that no formal offer was made; Emmer has produced e-mails showing that he had been scheduled to teach a class and even discussed his syllabus with the department head.) From all available evidence, the rethinking came not because of Emmer's qualifications to teach the class, but because a few Hamline professors complained about Emmer's politics, especially his position on marriage equality. In both the legislature and during his gubernatorial campaign, Emmer had strongly urged a state constitutional amendment banning same-sex marriage--to such an extent that in 2010 he received a six-figure independent expenditure on his behalf from the anti-gay-marriage National Organization of Marriage.

How, possibly, could Emmer's position on marriage equality (or any other social issue) disqualify him from teaching business law? As the Star-Tribune editorialized, "That Hamline's leaders apparently gave the boot to Emmer simply because of his politics suggest a startling lack of confidence in their students, faculty and the institution."

Incredibly, even after the editorial outcry, some of Emmer's faculty critics seem oblivious to their disparagement of academic freedom. Jim Bonilla, who co-directs the "Hamline University Race, Gender & Beyond Faculty Development Project" and describes himself as "a nationally recognized consultant in the area of organizational diversity in higher education," had no trouble in conceding the critics' case, though he suggested to the Star-Tribune that Emmer's sometimes intemperate campaign rhetoric as well as the candidate's positions on issues motivated his anti-Emmer crusade. Even so, to Bonilla, the basic problem in the affair wasn't the indifference of figures like himself to basic principles of academic freedom, but instead the administration having even considered the idea of Emmer joining the faculty.

Carleton professor Steven Schier more accurately discerned the lesson of the matter: "Administrators do not challenge faculty judgments . . . so, through the hiring process, left liberal opinion--widespread among professors--dominates college faculties. I think the Emmer case is a rare example of an institution being caught with its ideological biases showing."

The Emmer affair, in short, represented a clear-cut violation of academic freedom. At first blush, it seemed, so too was the case of Jennifer Keeton. Keeton sued Augusta (GA) State University after the school's Counseling Department required her to undergo a "remediation" program to address her expressed anti-gay beliefs. Keeton claimed that the school violated her freedom of speech and of religion.

The Court Was Half Right

As I noted several months ago, this is an awful case in terms of its potential effects on students' rights. On the one hand, the agenda of the ASU Counseling faculty, which claimed merely to be ensuring that Keeton would abide by the ethical standards of the American Counseling Association, resembled that of Hamline's Bonilla. The remediation plan the department crafted included the Orwellian demand that Keeton attend such events as a Gay Pride parade; despite their for-the-record denials, the Counseling professors seemed eager for Keeton to change her mind about gay rights issues. Both FIRE and NAS filed an amicus brief, written by Eugene Volokh, highlighting how the professors' behavior threatened First Amendment rights.

On the other hand, the record before the court suggested that Keeton should be nowhere near gays or lesbians, especially teenagers, who might need counseling. She appeared to believe that she could impose her religious beliefs on her clients; the 11th Circuit observed that "as a high-school counselor confronted by a sophomore student in crisis, questioning his sexual orientation, [Keeton said in class that] she would tell the student that it was not okay to be gay. Similarly, Keeton told a fellow classmate that, if a client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong. Then she would try to change the client's behavior, and if she were unable to help the client change his behavior, she would refer him to someone practicing conversion therapy," a practice that all major psychological and medical associations deem inappropriate and potentially harmful. Keeton's unsuitability as a counselor made it unlikely that she would prevail in her lawsuit. This likely defeat posed a risk of providing a precedent for future, and actual, suppressions of student freedoms on campus.

That's exactly what occurred in the district court's decision--and also on Friday, when a three-judge panel of the 11th circuit upheld the lower court's ruling. In dismissing Keeton's claim, the panel reasoned that "in seeking to evade the curricular requirement that she not impose her moral values on clients, Keeton is looking for preferential, not equal, treatment."

If the court had stopped there, the ruling would have been praiseworthy. But the court didn't stop there. Even so, it had another out: ASU took action because Keeton was on the verge of her practicum (the counseling equivalent of student-teaching), and thus, the panel noted, "effectively would have been the school's employee." Since most student free-speech cases don't involve such a scenario, the ruling might have had little relevance beyond the specifics of this case.

But the court broadened its findings in two respects. First, the panel repeatedly maintained that ASU could justify its handling of Keeton by citing guidelines of the relevant national accrediting agency. In this instance, the ACA's guidelines (which included such provisions as "counselors must support their clients' welfare, promote their growth, respect their dignity, support their autonomy, and help them pursue their own goals for counseling") were eminently reasonable. But it's not hard to imagine national accrediting organizations adopting highly unreasonable standards: recall the demand of the National Council for the Accreditation of Teacher Education (NCATE) to test all prospective schoolteachers for their "disposition to promote social justice." The implication of Keeton, then, is that (at least in the 11th Circuit) the free speech rights of Education students are now hostage to any future permutation of NCATE's standards.

A Very Troubling Precedent

Second, another section of the panel's decision diminished the free speech rights of all college students, even those in majors that don't involve program-specific accrediting bodies. In deeming reasonable ASU's restrictions of speech, the 11th Circuit relied on Hazelwood, which upheld the efforts of teachers to exercise "editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." But Hazelwood dealt with a high school student newspaper. That the panel chose to apply "the deference that courts must show to a [high] school's [newspaper-related] curricular choices" to college curricular matters of all types is a troubling precedent indeed.

At same time, the court dismissed the applicability of West Virginia v. Barnette (which ruled unconstitutional a mandatory pledge of allegiance by all public school students) on grounds that "unlike the plaintiff in Barnette, Keeton may choose not to attend ASU." So when dealing with the rights of college students, it's OK to apply the anti-free speech high school precedent of Hazelwood, but not the pro-free speech high school precedent of Barnette?

In the event, the Keeton case most resembles not the Emmer affair but instead that of John Love, a mid-1980s biochemistry graduate student at Duke. Love couldn't fulfill the requirements of his program, got kicked out, and then sued for discrimination. Judge Richard C. Erwin had little trouble dispensing with Love's claims: much like Keeton in the case before the 11th Circuit, Love demanded preferential treatment, essentially claiming that since he was Hispanic, any failing grade that he received must have resulted from discrimination.

But then, like the 11th Circuit in Keeton, Judge Erwin broadened his reasoning, addressing a stray claim from Love that Duke hadn't followed a technicality in the student bulletin, and thus was guilty of breach of contract. Without citing any authority for his conclusion (or even offering any explanation for it), and ignoring contrary precedents from other circuits, Erwin ruled, "The academic bulletin is not a binding contract."

The 4th Circuit denied Love's appeal, and Erwin's slapdash reasoning became a precedent, denying students throughout the 4th Circuit the opportunity to hold their schools legally accountable for even the most extreme violations of the student bulletin. Just as universities in Virginia, Maryland, West Virginia, and the Carolinas have used Love to shield themselves from legal accountability, so too will universities in Florida, Georgia, and Alabama unjustly benefit from Keeton.

All in all, then, it was a pretty bad week for academic freedom.

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KC Johnson, a regular contributor, is a professor of history at Brooklyn College and the CUNY Graduate Center, where he teaches classes in 20th century U.S. political, constitutional, and diplomatic history.



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