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Speech and the Public Academy "Every idea is an incitement" - Attributed to F. Nietzsche Should college professors in a state university be entitled to speak their minds in public without fear of adverse disciplinary consequences being imposed by their superiors? What if the speech has "disruptive" consequences for the institution? The prestigious federal appellate court for the Second Circuit had rendered a pro-speaker opinion in Jeffries v. Harleston in the spring of 1994, but then reversed its decision based on a subsequent Supreme Court decision in a different (but supposedly analogous) case. First Amendment fans are unlikely to find either the new answers or the analogy particularly satisfying. Jeffries, a tenured professor, served as the chair of the Black Studies department at the City College of New York; under the college bylaws, the standard term of appointment as department chair was defined to be three years. Controversy ensued when Jeffries made a public speech at the Empire State Black Arts and Cultural Festival in Albany; the Festival was not in any way affiliated with the college, and Jeffries did not hold himself out to the audience as presenting the official views or policy of CCNY. Jeffries leveled a scathing and scandalous attack on the public school curriculum in New York as racially and ethnically biased, mixing his invective with a strong dose of the more obnoxious strains of anti-Semitism. He criticized various state and federal officials who supported the curriculum, attacking them as racists; he referred to one such official as a "sophisticated, Texas Jew." Jeffries furthermore told his audience that Jews had a notorious history of oppressing blacks and that "rich Jews" had financed the slave trade. In one of his more spectacular allegations, he claimed that Jewish and Mafia (!) conspirators in the Hollywood movie industry had contrived to "put together a system of destruction of black people" by portraying them negatively in films. To put it mildly, CCNY president Bernard Harleston was not pleased. He issued a statement condemning the Albany speech and initiated an internal investigation at the college to determine the extent to which the speech had "disrupted" the operation of the Black Studies department. According to the appellate court, the dean of the Social Science division reported back that Jeffries was still performing his regular duties, despite the firestorm created by the speech; later on, the provost reported after investigation that Jeffries was scheduling courses, attending meetings, representing the department, recruiting faculty and performing the other customary administrative duties of a department chair. The Board of Trustees nevertheless found that the speech was "disruptive" and sanctioned Jeffries by shortening the term of his chairmanship to one year. President Harleston informed Jeffries by letter that the action was being taken because of the "disruptive" consequences it had engendered: the president asserted that the Albany speech had threatened recruitment, fundraising and the college's relationship with the community. As is inexorably predictable in late twentieth century America, Jeffries sued everyone in sight, claiming his First Amendment rights had been abridged. In a jury trial in federal district court, Jeffries won reinstatement as department chair, along with several hundred thousand dollars in punitive damages. CCNY appealed to the Second Circuit Court of Appeals, but Jeffries retained most of his victory in the first appeal; the appeals court ordered a new trial on the damage award but upheld the reinstatement and the finding of a First Amendment violation. CCNY then appealed to the U.S. Supreme Court, which remanded the case back to the Second Circuit "for reconsideration" in the light of the new Supreme Court decision in Waters v. Churchill (May 1994). Interestingly, the Churchill case had nothing to do with education, racism, political speech, anti-Semitism, the role of the public university or the meaning of academic freedom in the public forum. However, both the Supreme Court and the Second Circuit Court of Appeals believed that the Churchill case nevertheless had quite a bit to do with the merits of Jeffries' lawsuit. This conclusion turned out to be most unfortunate for Professor Jeffries. The court did not believe that Jeffries should be entitled to any "special" First Amendment considerations simply because he was a college professor speaking in a public forum on a public issue, rather than a public health employee speaking to a co-worker about working conditions. Ms. Churchill was fired from her nursing job at a public hospital because her supervisors believed that she had made "disruptive" statements to a co-worker concerning the operation of the obstetrics department. These were fundamentally work-related complaints about the poor work environment in the department; such complaints, while undoubtedly important, might be suspected to present a less critical issue for public debate than whether the entire public school system of the State of New York is fundamentally an instrument of racial oppression. The Supreme Court had concluded that Ms. Churchill could be fired if the hospital's prediction of "disruption" was a reasonable one and if the firing had been motivated by the potential for disruption rather than by a desire for retaliation. Applying the reasoning of Churchill, the Second Circuit found that a majority of the Board of Trustees had removed Jeffries because of the "potential for disruption" that his behavior had created (a valid motive) rather than as a retaliatory move (an invalid motive). Education, perhaps, is simply another utilitarian institution designed to process the young for productive inclusion into commercial society; therefore, speech that "disrupts" this process (or its more important aspects such as obtaining donations from alumni or the community) should not, it seems, be tolerated. After all, how can learning take place with all that "disruption" going on? I hasten to add that I do not share or sympathize with Professor Jeffries' ideas; personally, I find his preposterous brand of anti-Semitism to be quite despicable. But that is beside the point, which is: What privileges should a professor in a public academy enjoy speaking in a public forum or on the Net? Socrates, semi-mythical instructor of ancient Athens, taught that confusion was the beginning of wisdom and that the first role of the teacher was to shatter the preconceptions and received views that impeded real thought. In short, Socrates taught the central value of "disruption" for the educational process. Socrates was disruption incarnate. It seems that now the avoidance of "disruption" is the paramount virtue for public education. I don't think Socrates would approve, although I feel sure he would not be surprised. Edmund B. (Peter) Burke practices intellectual property and information technology law in Atlanta with the firm Powell, Goldstein, Frazer & Murphy. Thoughtful writing is worth a second reading. This widely praised article appeared previously in Educom Review, Volume 31, Number 3 (May/June 1996). |
