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New legal fund protects professors against cancelation threats by their universities

"You do it because it has to be done," says professor who got huge settlement from university. "Principles have to be upheld."

Updated: May 4, 2021 - 5:36pm

Professors who are threatened for their speech or research may avoid seeking legal help against their universities, fearing the expense or the escalation of tensions.

A civil liberties group aims to overcome those fears with a new legal defense fund that gives faculty a free lawyer at the earliest stages of conflict with administrators — and potentially all the way through trial.

The Foundation for Individual Rights in Education explained the fund in a webinar Tuesday, encouraging professors to call the project's 24-hour hotline to be quickly paired with "early responders" who are paid for their time.

It's a marked expansion for the group, which previously referred faculty under fire to lawyers who worked pro bono. The new project is funded by the Stanton Foundation and led by Ronald London, a First Amendment lawyer best known for defending CBS against FCC fines for Janet Jackson's infamous nipple exposure at the 2004 Super Bowl halftime show.

Faculty approved for the fund will start with 20 billable hours with an attorney who is "jurisdictionally proximate" to them and can review documents, attend meetings or lead negotiations with targeted universities, London said. 

It will pay another 20 hours if further work is needed, and an internal committee will review cases where "substantial further work" is needed, including litigation, he said. Employment and contract issues "wrapped up" in First Amendment issues are also covered.

FIRE has experience going all the way through trial. An earlier litigation project known as Stand Up for Speech funded a lawsuit against Chicago State University that took four years and ended with a $650,000 settlement with two professors. One of them, Phillip Beverly, shared his experience in the webinar.

The fund has referred four faculty members to counsel in its "soft launch" phase, a spokesperson for the group told Just the News, but wasn't sure how many cases it had reviewed because complaints are submitted through a common portal with a different program.

While even faculty who are merely under investigation can apply for the fund, it's currently off-limits to a large swath of the academy: those at private institutions. (FIRE is hoping to expand the fund to cover faculty at private institutions which contractually promise them academic freedom, London said.)

That includes University of San Diego law professor Tom Smith. FIRE has pressed the Catholic school to drop its investigation of Smith for mocking people who accept "Chinese cock swaddle," by which he meant Chinese Communist Party propaganda, on his personal blog.

"No word on what exactly I was being investigated for, who was charging me, when the investigation would take place or any of the other things required for minimal due process," Smith told The College Fix.

Smith is either under investigation "or perhaps pre-investigation," the professor told Just the News. "Different university officials are saying different things." He hasn't yet faced sanctions, and his teaching duties remain the same, but he could face "anything up to and including termination," he said.

The university took sanctions off the table in a May 4 statement posted by First Amendment law professor Eugene Volokh. Provost Gail Baker wrote that a "thorough legal review ... determined that the expression was protected by" its academic freedom policy.

While its decision was correct, the university left "Smith in the dark for months as it investigated what was clearly protected speech" and likely chilled the speech of students and faculty, FIRE said May 4.

Faculty "lulled into" idea that internal process will exonerate them

The increasing frequency of attacks on faculty speech and research in the last few years convinced FIRE to add the new program, said London, who partnered with FIRE on the Chicago State case and joined the organization March 1.

It litigates cases with the potential to set positive precedents internally, and FIRE's Individual Rights Defense Program reviews hundreds of complaints each year that fall short of litigation, engaging in targeted outreach to universities and public records requests.

A broad range of professor speech is eligible for the fund, including employment and contract issues "wrapped up" in First Amendment claims, London said. Classroom teaching and pedagogical techniques are covered, as well as speech outside the classroom in their personal capacities. 

Cases it has already referred include a professor whose YouTube videos caught the ire of the administration and another who used criticisms of Black Lives Matter as examples for an "uncomfortable concepts" session, London said.

A webinar attendee questioned how the legal fund can make changes when public university officials are typically granted qualified immunity for unconstitutional actions and taxpayers pay their legal bills.

London agreed that universities sometimes drag out legal challenges by faculty as a litigation strategy, gauging that a professor will retire or leave the school and moot the case. Faculty should not expect that any challenge will be wrapped up by "the end of the semester."

Peter Bonilla, FIRE's vice president of programs, said there's no other way to defeat the legal shield than "plowing straight through" with so-called Section 1983 claims, which target public officials for violations of civil rights undertaken in their official capacities.

Sometimes going to a university's general counsel is enough to end the threats from administrators, he said, citing some "delicious exchanges" FIRE has had with university counsel about "outrageously unconstitutional" sanctions against faculty. 

The Stand Up for Speech project was an early attempt to "change the calculus" for administrators by personally threatening them financially, London said. Some insurance policies won't cover "intentional acts" that violate the law, he added.

Faculty have often been "lulled into this idea" that if they are wrongly accused of harassment, bias or other violations for their speech, the internal university process will exonerate them, which is dangerously naive, according to London.

Far from inflaming the situation, seeking a free attorney through FIRE is the best way to stop an investigation from "blow[ing] up into a bigger thing" with sanctions, he said. The attorneys that FIRE is paying know when to act as "good cop" to facilitate a resolution when a university is receptive, and "bad cop" when a university resists.

A professor called into a meeting with an administrator over their speech should start creating a written record, London said. Any action by a university that has a chilling effect, even if it's not a "punishment per se," can be used in a subsequent legal action.

"You do it because it has to be done"

Chicago State's Beverly, who is currently on leave, shared his experience as a possible worst-case scenario for faculty interested in taking on their administration.

The political scientist dubbed Illinois "one of the three most politically corrupt states," which is "embedded in the DNA" of its public institutions as well. He and a now-retired colleague, Robert Bionaz, started a faculty blog in 2009 to chronicle what they saw as unethical behavior in a new administration.

When their CSU Faculty Voice started exposing more serious violations and obtaining public records, which later appeared in the Chicago media, the administration urged them to stop because it was hurting "feelings," Beverly said. 

CSU then delivered a cease-and-desist order to Beverly's home claiming the blog violated university trademarks. He promptly shared the legal threats with the media, and the blog's traffic jumped from about 400 visitors to 13,000, Beverly said. 

The university also claimed the blog violated its cyberbullying and computer use policies. "Thank God FIRE was watching all this happening" and proactively offered to represent Beverly and Bionaz in a legal action, he said. "We were really sort of hanging on," expecting to be fired.

The university settled their lawsuit only when a new administration took over in 2018. While admitting no wrongdoing, it agreed to revise the cyberbullying and computer use policies wielded against the professors in addition to paying them $650,000 in legal fees for four years of litigation.

Beverly issued a clarion call to tenured faculty to fight these legal battles to protect those with fewer protections, such as adjunct professors. Administrators know that they are "soft targets" who shy away from conflict outside of research and teaching.

"You do it because it has to be done," he said. "Principles have to be upheld."

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