Monday, May 7, 2018

The Prissy University and Academic Naughty Words--The AAUP Files an Amicus Brief in Buchanan v. Alexander NO. 3:16 - CV - 41 (5th Cir. on appeal)

“I got fired for what they called ‘sexual harassment,’” Buchanan said of her 2015 termination, but there were no allegations she “harassed” anyone, sexually or otherwise. Rather, LSU took action because of some of the language Buchanan used in course instruction with her adult students. “Everything that they accused me of had to do with things that I had said as part of my teaching methods,” said Buchanan, noting that no student ever accused her of sexually harassing them. Rather, her approach was designed to enable new teachers cope with teaching in the real world, and doing so at some times involved the use of harsh language.  (Alex Morey, "Teresa Buchanan Uncensored: How an Innovative Educator Created Top Teachers and Got Fired for It, Fire," Jan. 22, 2016 )
The modern university has tended to become a safe space--but not in the way that term is commonly understood.  The safety of the university space is ensured through emerging programs of compliance driven in turn by the socialization of a riskless environment.  And cultures of risk negating behaviors include not merely forbidding hiking clubs to hike (here) or researchers to explore (here) but it seems it now also includes constraining teaching and teaching innovation through the broadened use of social control mechanisms, including, in most interesting ways, the otherwise important and necessary  regulatory architecture for the suppression of sex harassment on campus.   Increasingly, this policing of risk, in the form of compliance, has begun to affect the shape and scope of tenure and academic freedom (here). 

It is at the intersection of these trends that one finds Teresa Buchanan, a faculty member at LSU who was terminated after the university determined that her teaching methods constituted harassment ("LSU said in a statement released Thursday through spokesman Ernie Ballard that the university is confident the action it took against Buchanan was appropriate. “We take our responsibility to protect students from abusive behavior very seriously, and we will vigorously defend our students’ rights to a harassment-free educational environment,” the statement added." here). And yet it was those very methods that appeared to have made her teaching a success judged by the standards of the university. An interesting conundrum appears as a consequence, one situated at the intersection of ancient values and now apparently of zero sum dignity considerations. 
This month [June 2015], Louisiana State University fired—outright fired—a tenured professor of education, Teresa Buchanan, ostensibly for creating a “hostile work environment” via sexual harassment. Her infraction? Allowing profanities to pass from her tenured lips, and unleashing a single ill-advised bon mot about sexual intercourse. . . . For all this, after an 11-hour hearing, a committee of Buchanan’s peers concluded that she be officially censured (which is not the same as “censored,” except in this case it is), and never use “potentially offensive language” in the classroom again. But the LSU administration found that already-Draconian punishment insufficient. Buchanan actually got fired. (Rebecca Shuman, "Academia’s P.C. Brigade Has Started Policing the F-Word. That’s Taking It Too Effing Far," Slate June 2015)
The LSU Faculty Senate condemned the action (here for the resolution of the LSU Senate seeking the censure of senior administrators and the reversal of the decision). The AAUP censured LSU (here). Buchanan sued (complaint here) and lost in the lower courts (see here). To the delight of the LSU Administration the case was dismissed in January 2018 (report here). The case is currently on appeal before the 5th U.S. Circuit Court of Appeals.

This post includes links to the brief filed by AAUP in support of Professor Buchanan's appeal. The issues touch on a core area of transformation of the university and its relationship both to the production of knowledge and toward its producers within a regulatory and institutional environment that tends to prefer performance to the average and a homogenized product that can be sold without substantial risk or pain.  One can't blame the university--they believe they are in the business of producing individuals qualified for insertion into wage labor markets. Yet, the university might still be condemned for the choices that led them to those beliefs and practices.  Teaching professionals also believe they are engaged in producing individuals better suited to live lives that maximize their value to society and to the student. To that end a bit of experimentation and risk taking may be necessary.  Where one draws the lines is now one of the more important issue framing the way in whcih one understands tenure and academic freedom in the contemporary university.

From the AAUP Press Release:

In an amicus brief filed on Friday, the AAUP emphasized the importance of faculty being able to use controversial language and ideas to challenge students in the classroom, and argued that Professor Teresa Buchanan’s academic freedom was violated when Louisiana State University dismissed her for making statements in the classroom that the university improperly characterized as sexual harassment.

The brief explains that sexual harassment policies, particularly those focused on speech, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on rights of free speech and academic freedom. In public universities, these policies must meet constitutional standards under the First Amendment. LSU’s policies, and their application to the facts, failed this test.

The case originated when, in 2014, LSU’s Office of Human Resource Management found Buchanan guilty of sexual harassment based solely on her occasional use of profanity and sexually explicit language with her students, despite the fact that Buchanan did not use language in a sexual context and instead employed it to further educational objectives. Buchanan’s dean recommended her dismissal, and has stated that he did not condone “any practices where sexual language and profanity are used educating students.”

Subsequently, a faculty hearing committee recommended unanimously against dismissal of Buchanan. While the committee faulted her for having violated LSU’s policies on sexual harassment by her occasional use of “profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes’ in her methodologies,” it found no evidence that this behavior was “systematically directed at any particular individual.” Despite this, Buchanan was dismissed.

Professor Buchanan filed suit against the school, arguing that LSU’s sexual harassment policy violated her First Amendment rights because it was vague and overbroad both facially and as applied in her case, and that her due process rights were violated. The district court ruled against her, Buchanan appealed, and the AAUP filed an amicus brief in support of her appeal in the United States Court of Appeals for the Fifth Circuit.

The use of provocative ideas and language to engage students, and to enliven the learning process, is well within the scope of academic freedom and is protected by the First Amendment. Many things a professor says may “offend” or even “intimidate” some students. If every such statement could lead to formal sanctions, and possibly even loss of employment, the pursuit of knowledge and the testing of ideas in the college classroom would be profoundly chilled.

The AAUP recognizes the importance of combating sexual harassment and has long emphasized that there is no necessary contradiction between a university’s obligation to address problems of sexual harassment effectively and its duty to protect academic freedom. To achieve these dual goals, hostile environment policies, particularly those focused on speech alone, must be narrowly drawn and sufficiently precise to ensure that their provisions do not infringe on First Amendment rights of free speech and academic freedom.

You can read the full brief here.

Risa Lieberwitz
General Counsel, AAUP
Aaron Nisenson
Senior Counsel, AAUP

P.S. If you'd like to support AAUP's legal work, you can donate to the AAUP Foundation today.

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