9-Apr-03 0:00 AM CST
LPR 95: New approaches in ethical development programming, & Key case review: academic freedom and public statements outside the classroom
ASJA LAW AND POLICY REPORT
Wednesday April 2, 2003
No. 95
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ASJA Law and Policy Report (LPR) is written by Gary Pavela (gpavela@umd.edu) and published weekly (except mid‑December to mid‑January, and the month of August). Copyright: ASJA and Gary Pavela: All rights reserved. Further transmission within ASJA member institutions is permitted, if the author and ASJA are credited as the source. Index, archives, and additional source materials will be available to ASJA members at http://asja.tamu.edu. The information and comments provided here are designed to encourage discussion and analysis. They represent the views of the authors‑not ASJA‑and do not constitute legal advice. For legal advice the services of an attorney in your jurisdiction should be sought.
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TOPICS IN THIS ISSUE
[] 03.14 New approaches in ethical development programming
[] 03.15 Key case review: academic freedom and public statements outside the classroom
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03.14 ETHICS
*New approaches in ethical development programming*
The April 1, 2003 issue of the *Washington Post* contains an article with valuable insights into successful ethical development programming (“Putting the Choice of War in Students’ Hands”).
CONCLUSION
The *Post* interviewed Albert C. Pierce, “the first director of the Center for the Study of Professional Military Ethics, established less than five years ago at the U.S. Naval Academy in Annapolis.” Pierce noted that enhanced character and ethical development programming at the academy was part of a national pattern, seen in schools of business and law in recent years. When asked how midshipmen were encouraged to discuss topics like “just and unjust wars,” Pierce said that:
***One way is through an informal discussion group we have, called Friday Night at the Movies. . . . We invite up to 20 underclassmen at a time, give them pizza and soft drinks, show them movies with ethical issues and then guide a discussion. They love it.***
Among the movies shown were "Breaker Morant" (treatment of prisoners during war); "A Man for All Seasons" (the importance of an oath; defining values worthy of self-sacrifice); "Paths of Glory" (nature and limits of loyalty within the chain of command); and "The Caine Mutiny" (the stresses of leadership; courage in challenging authority).
POLICY IMPLICATIONS
The use of films to promote emotional and cognitive understanding of ethical issues isn’t new. Other educators report that students are attracted to that approach. What’s intriguing about the Naval Academy “Friday Night at the Movies” program is that specific invitations are sent to a small group of students. The combination of a good film, good food, and quality discussion are probably hard to resist. Equally important, participants are likely to be actively engaged in the event, enhancing friendships and fostering ongoing discussion. Small programs of this nature, held several times a semester, may have more impact than larger, less frequent speeches or presentations.
RESOURCES
The *Washington Post* interview with Albert C. Pierce is available at:
http://www.washingtonpost.com/wp‑dyn/articles/A63559‑2003Mar31.html
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03.15 ACADEMIC FREEDOM
Key case review: academic freedom and public statements outside the classroom
New controversies are arising about provocative anti-war speeches by professors at rallies and demonstrations. For professors at public institutions, those out-of-classroom statements are entitled to significant, but not absolute First Amendment protection. Excerpts from four relevant cases follow:
[1] *Pickering v. Board of Education* 391 U.S. 563 (1968) (school board violated First Amendment rights of teacher fired for public criticism of the board’s allocation of funds):
***What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.***
[2] *Levin v. Harleston* 966 F. 2d 85, 87-88 (2nd Cir. 1992) (creation of alternative class sections and appointment of ad hoc committee "to review the question of when speech both in and outside the classroom may go beyond the protection of academic freedom " were not justified by professor's writings about alleged differences in intelligence between blacks and whites).
***This litigation had its inception in three writings of Levin, a tenured professor at the college, which is a public institution. . . Because these writings contained a number of denigrating comments concerning the intelligence and social characteristics of blacks, they elicited a mixed response, much of it critical in nature . . . [One response of the college was to create] an 'alternative' section of Philosophy 101 for those of Levin's students who might want to transfer out of his class . . . Similar action never before had been taken in the history of City College . . . Moreover, none of Professor Levin's students ever had complained of unfair treatment on the basis of race . . .
***In addressing the issue of the 'shadow classes,' we emphasize the great reluctance with which this court intrudes upon the decisions of a university administration . . . Where, however, basic constitutional values have been infringed, this court will not remain silent. '[S]tate colleges and universities are not enclaves immune from the sweep of the First Amendment' [citation omitted]. . .***
***Formation of the alternative sections would not be unlawful if done to further a legitimate educational interest that outweighed the infringement on Professor Levin's First Amendment rights . . . However, although appellants contended below that they created the alternative sections because Professor Levin's expression of his theories outside the classroom harmed the students and the educational process within the classroom, the district court saw no evidence that this was a factually valid concern . . . Given the complete lack of evidence to support appellant's claim of a legitimate educational interest, we are unable to say that the district court erred. . .***
***[Regarding the appointment of a review committee], [i]t is settled that government action which falls short of a direct prohibition on speech may violate the First Amendment by chilling the free exercise of speech . . .The District Court did not err in finding that the threat of discipline in President Harleston’s [appointment of an Ad Hoc Committee on Academic Rights and Responsibilities to “review the question of when speech both in and outside the classroom may go beyond the protection of academic freedom”] was sufficient to create a judicially cognizable chilling effect on Professor Levin’s First Amendment rights. . .***
[3] *Jeffries v. Harleston* 52 F. 3d 9 (1995). (In 1994 the U. S. Court of Appeals for Second Circuit affirmed a lower court decision reinstating Professor Leonard Jeffries as Chairman of the Black Studies Department at the City College of New York. Professor Jeffries had been demoted after he made inflammatory remarks about Jews in an off-campus speech (see*Synfax Weekly Report* 94.43, p. 231 for excerpts from the Second Circuit opinion). The Second Circuit's holding was then vacated and remanded by the Supreme Court (See *Synfax Weekly Report* 94.85, p. 300). In April 1995 the Second Circuit ruled that City College's action did not violate Professor Jeffries' First Amendment rights:
***One of the principles driving our earlier *Jeffrles*** decision was that the First Amendment protects a government employee who speaks out on issues of public interest . . . unless the speech actually disrupted the employers operations . . .
***Applying that standard, we studied [Jeffries'] Albany speech, and found that it squarely involved issues of public concern—namely, the New York state public school curriculum, and black oppression . . . Then, after examining CUNY's bylaws, and the testimony of CUNY officials, we agreed with the district court that the position of Black Studies Chairman was a ministerial position at CUNY, and carried no policymaking authority. . . Thus, we held that the defendants bore the burden at trial to show that the speech actually interfered with CUNY operations. . .***
***[This] strict actual interference requirement reflected the law of the Second Circuit. See *Piesco v. City of New York*, 933 F.2d 1149, 1160 . . . The recent . . . decision [by the U.S. Supreme Court in Waters v. Churchill 128 L.Ed. 2d 686], however, has loosened *Piesco's* shackles upon public employers . . . ***
***Whittled to its core, *Waters* permits a government employer to fire an employee for speaking on a matter of public concern if: (1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech . . . By stressing that actual disruption is not required, *Waters* pulls a crucial support column out from under our earlier *Jeffries* opinion. We are now constrained to hold under Waters that the defendants did not violate Jeffries' free speech rights if: (1) it was reasonable for them to believe that the Albany speech would disrupt CUNY operations; (2) the potential interference with CUNY operations outweighed the First Amendment value of the Albany speech; and (3) they demoted Jeffries because they feared the ramifications for CUNY, or, at least, for reasons wholly unrelated to the Albany speech . . .***
***Finally, we note that an amicus curiae argues that we should not apply *Waters* at all because Jeffries, as a faculty member in a public university, deserves greater protection from state interference with his speech than did the nurse in *Waters* . . . We recognize that academic freedom is an important First Amendment concern. See, e.g., *Keyishian v. Board of Regents,* 385 U.S. 589, 603 (1967) ("The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."). Jeffries' academic freedom, however, has not been infringed here. As we held in the earlier *Jeffries*. . . the position of department chair at CUNY is ministerial, and provides no greater public contact than an ordinary professorship. . . Jeffries is still a tenured professor . . . and the defendants have not sought to . . . limit his access to the "marketplace of ideas" in the classroom.***
[4] Burnham v. Ianni 119 F.3d 668 (8th Cir. 1997) (the chancellor of the University of Minnesota at Duluth violated the First Amendment when he removed photographs of two professors posing with weapons from a campus exhibit).
***"We recognize that the government, as an employer, has broader powers in suppressing free speech than the government as a sovereign. Indeed, we have given some deference to an employer's predictions of workplace disruption . . . However, we have never granted any deference to a government supervisor's bald assertions of harm based on conclusory hearsay and rank speculation . . . There is simply no evidence that establishes a nexus between the two photographs [of history professors posing with weapons as "props"—displayed in a history department display case at the University of Minnesota at Duluth] and an exacerbated climate of fear on the campus or, more importantly, that establishes a relationship between the photographs and a decrease in the efficiency and effectiveness of UMD's educational mission.***
POLICY IMPLICATIONS
A consistent theme in all the cited cases is the courts’ recognition that competing interests of schools or colleges will be balanced against First Amendment rights of professors. If a professor’s speech is on a matter of public concern (e.g. the war in Iraq) a heavy burden will fall on academic administrators to show that their “prediction” of subsequent disruption on campus has a solid basis in fact or logic.
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"Hear the case before you decide it."
‑Alfred P. Murrah, (Chief Judge of the U.S. Court of Appeals for the Tenth Circuit and Director
of the Federal Judicial Center).
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