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PaperclipPerfector  9mo ago (text post)   31421 thread views

Culture War Roundup for the week of July 10, 2023

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Sorry to do two posts back to back, but the Fourth Circuit has dropped a steaming pile of dog shit on my front porch and I'm kind of mad about it. (Is that too heated? Honestly I feel like I'm soft pedaling it.)

Porter v. Board of Trustees of North Carolina State University is a case on academic freedom and speech by government employees. Stephen Porter was a tenured professor of education in the university's "higher ed" program. His statistical research on higher education has dealt at times with questions of faculty and student body demography. After complaining that

NC State’s diversity initiatives resulted in “abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion’”

he found himself removed from the higher ed program for being "insufficiently collegial." He sued. And now, barring a reversal by SCOTUS, he has lost. More from the article:

In the 2006 case Garcetti v. Ceballos, the Supreme Court held that when government employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” But, critically, Garcetti made an exception for faculty at public institutions engaged in “speech related to scholarship or teaching.”

The Fourth Circuit’s decision considerably narrows this exception, effectively placing faculty speech about shared institutional governance and decision-making beyond the First Amendment. The court reasoned that Porter did not speak as an academic, but rather “in his capacity as an employee,” concluding Porter’s speech “was not a product of his teaching or scholarship” and is, therefore, “unprotected.”

This analysis suggests that the Fourth Circuit has quite perplexingly decided that "intramural" speech does not qualify for the Garcetti academic exception. Essentially, in the Fourth Circuit, academic freedom apparently extends to lectures and publications, but not "when professors speak and write as citizens of the campus community and officers of an educational institution." This is an especially awkward position, however, when the professor in question teaches and researches higher education specifically. Imagine being free to make assertions about higher education policy in the classroom and in your writing, but not being free to repeat those things at a faculty meeting, or to university administrators! The author also notes that this may reflect a circuit split with the Ninth, which is good news for any planned appeal.

But the age of that split (the Ninth Circuit case was decided in 1976) also highlights how much the American Left has changed in the last 50 years, and how right-coded Free Speech has become--even, maybe the speech of tenured university professors (who are of course overwhelmingly left-identifying). As one commenter over at Brian Leiter's blog observes:

It seems to me that the dissent attends carefully and sensibly to the relevant facts but that the majority does not. On page 43, the dissent offers this explanation for the majority’s failure:

“My friends in the majority ... have developed a new ‘bad man’ theory of the law: identify the bad man; he loses. ... The majority’s threadbare analysis willfully abandons both our precedent and the facts in search of its desired result. ... that cynicism breaks new ground.”

A second commenter adds further context:

Curiously, the two judges in the majority (Wynn and Thacker) are Obama appointees, whereas the one judge in dissent (Richardson) is a Trump appointee. As the preceding comment observes, the argumentation in the dissenting opinion is far better than that in the majority opinion.

Leiter himself then weighs in on Richardson:

I see that Judge Richardson is a UChicago Law graduate (before my time), who clerked for Judge Posner.

Posner, of course, is the father of the Law and Economics movement, which is not universally embraced by conservative lawyers but is very often a right-coded jurisprudence. So here we have a flip from the stereotypical expectations, with leftist judges constraining the academic freedom of a tenured university professor (as well as government employee freedom of speech generally--they give a narrower interpretation than the conservative Supreme Court furnished in 2006!) and a right-wing judge dissenting.

Naturally, most analysis seems to agree that this is a results-oriented decision; the "real issue" is not academic freedom or freedom of speech at all, it's the total inviolability of the gospel of DEI. Porter committed a heresy, and got slapped down for it, and the high priests of the church of DEI confirmed his punishment. All other details are irrelevant. This does not mean Republicans are now going to be the champions of academic freedom, or that Democrats have abandoned that position. It's just pure, unadulterated who, whom, as the dissent seems to grasp.

I hate when judges add fuel to the cynical fires of "there is no principle, there is only power." I have seen judges choose principle over their preferred results. I know that something like reasoned objectivity is broadly achievable, if we value it. But it seems to be happening less and less, and certainly the forcefulness with which DEI has been rammed down our collective cultural throat seems best described as oppressive ideological totalitarianism.

If DeSantis takes this decision as a green light to fire every CRT-spouting faculty member in the University of Florida system who has criticized their own university or the UF system, we'll get a more recent circuit split. Along, likely, with some very fancy footwork in the Fourth Circuit (which includes part of Florida) explaining why it's not OK when the other side does it (no, the Fourth Circuit does not include any of Florida, I think the source I was looking was describing Florida Circuit Courts).

Re public criticism, DeSantis might have a problem under Pickering. Though as I note above, the public employee speech cases are terrible, so who knows.

Pickering involved a letter written to a newspaper, not intramural speech. De Santis should only fire the university employees that argued for DEI programs in internal venues, not those that used the press.

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