The Shell Game of Corrupted Government Exposed
Faculty Free Speech Loses in the Fourth Circuit
Publisher's Note: This post appears here courtesy of The James G. Martin Center. The author of this post is George Leef.
Zealous university faculty and administrators have become increasingly intolerant of anyone who disagrees with their "progressive" beliefs. Sometimes, they're unguarded enough to admit that they want to "cull the herd" to eliminate dissidents, as in this case.
Speaking your mind can have adverse consequences on college campuses, as North Carolina State professor Stephen Porter has learned.
Porter has been tenured on the NC State faculty since 2011, teaching in the Department of Educational Leadership, Policy, and Human Development. He became alarmed at the politicization of the field of education years ago and did what any academic should do-he spoke out against it. As his legal complaint explains, Porter believes "the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of 'diversity,' 'equity,' and 'inclusion.'"
Here is the timeline of events.
At a departmental meeting in early 2016, Porter objected to adding a question about "diversity" to student course evaluations. That was in line with his general concern that education research is moving away from the search for objective truth and into a swamp of subjective feelings. But raising this objection led to NC State's Office of Institutional Equity and Diversity issuing a report on the matter, in which Porter was accused of "bullying" the person who had proposed adding the question.
Not long after that, Professor Penny Pasque became department head and emailed Porter to raise concerns about his alleged "bullying."
Merely raising doubts about the advisability of adding a "diversity" question for students in graduate-level courses had gotten Porter in trouble with the higher-ups in his department.
The next incident occurred in April 2018. Inside Higher Ed published an article that was critical of a faculty search in the department, arguing that Professor Alyssa Rockenbach had slanted the decision to favor a minority applicant, overlooking strong objections to that individual. After the article came out, Porter sent an email to his faculty colleagues that read, "Did you see this? This kind of publicity will make us rocket to number 1 in the rankings. Keep up the good work, Alyssa!"
That sardonic email caused Pasque to schedule a meeting with Porter. There, Porter explained that he was concerned that the department had "cut corners" in vetting the candidate in question because it was fixated on hiring "a black scholar whose work focused on racial issues." Again, Porter had poked a hornets' nest by complaining about the department's obsession with diversity. Subsequently, Porter alleges, Pasque said she would "find ways to exclude [Porter] from critical aspects of his job" and indicated that she would see if he could be removed from the Higher Education Program Area, an NC State program for students who desire a career in postsecondary-education administration.
Then, in September 2018, Porter wrote a personal blog post that was critical of the Association of the Study of Higher Education (ASHE). He entitled his post "ASHE Has Become a Woke Joke." Why? The topics at the group's upcoming meeting were all about social justice rather than true research into postsecondary education. That blog post generated a lot of inflamed commentary on social media, and, naturally, it irked Porter's superiors.
At the start of that academic year, the department was considering hiring a new faculty member. Rather than discuss that at a regular meeting, Pasque asked Porter to participate in a virtual meeting with three others. During that meeting, Pasque suggested that Porter leave the Higher Education Program Area and join a new one. Since Porter holds tenure, he couldn't be fired. This was a move to punish him and remove a "bad apple" from the program.
To her suggestion, Porter replied, "Give me a f- break, folks. I was the one who wanted the potential hire, and now I'm the bad guy because I don't want to leave Higher Ed for a non-existent program area." Pasque followed up with an official letter reprimanding Porter for using profanity.
Six months later, Porter received another letter from Pasque, in which she expressed concerns about his lack of "collegiality." She also emailed him to say that students in the department were having strong reactions to his criticism of ASHE and suggested that he address their concerns in a "community conversation." He saw no reason to do so, nor that any good that would come of it.
Then, on July 5, 2019, Porter received notice that he was being removed from the Higher Education Program Area because, according to Pasque, the faculty could not make progress toward resolving issues with him there. Furthermore, he would have to teach an additional course, was barred from attending the orientation for new students, and was excluded from the department's Diagnostic Advisement Procedure, which negatively affected his ability to advise his students.
Upset at the way he was being punished because of his contrary views, Porter filed suit against NC State in September of 2021, contending that his First Amendment rights had been violated by the university's retaliation against him for his speech. Shortly after filing, Porter discussed his adverse treatment by the university in this Martin Center interview.
So far, Porter's suit has been unsuccessful. The district court judge dismissed his case, saying he had no legal grounds for complaint, and Porter appealed that ruling to the Fourth Circuit Court of Appeals.
On July 6, the Fourth Circuit upheld the dismissal, basing its analysis on the Supreme Court's decision in Garcetti v. Ceballos. It found that Porter's statements were not protected by the First Amendment because they were made in his capacity as an NC State employee, not as a citizen commenting on matters of public interest. Moreover, his "bullying" blog comment was not protected because it was "an unprofessional attack on a colleague."
But the court's decision against Porter was not unanimous. (Circuit courts of appeals typically hear cases with three-judge panels.) Judge Julius Richardson wrote a devastating dissent from the shaky (and transparently political) ruling that Porter's case cannot go to trial.
Judge Richardson took issue with the majority opinion at every point. Were Porter's statements unprotected by the First Amendment because he was just "doing his job," as the majority had determined? No, because it was not part of Porter's job to criticize the things he criticized. Porter could have remained silent about the "diversity" question and about the drift of ASHE into ideological activism. He'd clearly have been better off with regard to his employment if he had said nothing. In those instances, Judge Richardson persuasively argued, he was speaking as a citizen, and therefore his speech was protected under the First Amendment.
The judge also took issue with the majority over the question of whether the actions against Porter by NC State administrators were caused by his speech. The majority held that because the school did not remove Porter from the department for more than six months after the last of his controversial statements, he had not clearly established that his speech was the reason for the actions taken against him.
Judge Richardson made the far more convincing argument that NC State had for years been ratcheting up its threats against Porter because his statements upset the department's "progressives," thus making it hard to believe that there was no connection between them. At the least, Richardson argued, Porter should be allowed to present his case to a jury and make the defense try to show that his speech had nothing to do with the actions against him.
Finally, Judge Richardson observed, calling Porter's criticism of adding a question to the student evaluations "bullying" does not, even if that characterization were true, take Porter's speech outside of First Amendment protection. Harsh words are covered as much as polite ones.
This case should be appealed to the Supreme Court. If the decision stands, it will give "woke" university officials a playbook for getting rid of faculty members whose opinions bother them. According to the Fourth Circuit, what they need to do is claim that speech they dislike has harmed students and bullied other faculty members, so that punishment or termination is justified. If such "uncollegial" conduct is all it takes to retaliate against dissidents, free speech won't just be chilled-it will be frozen stiff.
We can only hope that the Supreme Court will reverse the Fourth Circuit with orders that Porter's case proceed to trial.
George Leef is director of editorial content at the James G. Martin Center for Academic Renewal.
Go Back
Zealous university faculty and administrators have become increasingly intolerant of anyone who disagrees with their "progressive" beliefs. Sometimes, they're unguarded enough to admit that they want to "cull the herd" to eliminate dissidents, as in this case.
Speaking your mind can have adverse consequences on college campuses, as North Carolina State professor Stephen Porter has learned.
Porter has been tenured on the NC State faculty since 2011, teaching in the Department of Educational Leadership, Policy, and Human Development. He became alarmed at the politicization of the field of education years ago and did what any academic should do-he spoke out against it. As his legal complaint explains, Porter believes "the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of 'diversity,' 'equity,' and 'inclusion.'"
Here is the timeline of events.
At a departmental meeting in early 2016, Porter objected to adding a question about "diversity" to student course evaluations. That was in line with his general concern that education research is moving away from the search for objective truth and into a swamp of subjective feelings. But raising this objection led to NC State's Office of Institutional Equity and Diversity issuing a report on the matter, in which Porter was accused of "bullying" the person who had proposed adding the question.
Not long after that, Professor Penny Pasque became department head and emailed Porter to raise concerns about his alleged "bullying."
Merely raising doubts about the advisability of adding a "diversity" question for students in graduate-level courses had gotten Porter in trouble with the higher-ups in his department.
The next incident occurred in April 2018. Inside Higher Ed published an article that was critical of a faculty search in the department, arguing that Professor Alyssa Rockenbach had slanted the decision to favor a minority applicant, overlooking strong objections to that individual. After the article came out, Porter sent an email to his faculty colleagues that read, "Did you see this? This kind of publicity will make us rocket to number 1 in the rankings. Keep up the good work, Alyssa!"
That sardonic email caused Pasque to schedule a meeting with Porter. There, Porter explained that he was concerned that the department had "cut corners" in vetting the candidate in question because it was fixated on hiring "a black scholar whose work focused on racial issues." Again, Porter had poked a hornets' nest by complaining about the department's obsession with diversity. Subsequently, Porter alleges, Pasque said she would "find ways to exclude [Porter] from critical aspects of his job" and indicated that she would see if he could be removed from the Higher Education Program Area, an NC State program for students who desire a career in postsecondary-education administration.
Then, in September 2018, Porter wrote a personal blog post that was critical of the Association of the Study of Higher Education (ASHE). He entitled his post "ASHE Has Become a Woke Joke." Why? The topics at the group's upcoming meeting were all about social justice rather than true research into postsecondary education. That blog post generated a lot of inflamed commentary on social media, and, naturally, it irked Porter's superiors.
At the start of that academic year, the department was considering hiring a new faculty member. Rather than discuss that at a regular meeting, Pasque asked Porter to participate in a virtual meeting with three others. During that meeting, Pasque suggested that Porter leave the Higher Education Program Area and join a new one. Since Porter holds tenure, he couldn't be fired. This was a move to punish him and remove a "bad apple" from the program.
To her suggestion, Porter replied, "Give me a f- break, folks. I was the one who wanted the potential hire, and now I'm the bad guy because I don't want to leave Higher Ed for a non-existent program area." Pasque followed up with an official letter reprimanding Porter for using profanity.
Six months later, Porter received another letter from Pasque, in which she expressed concerns about his lack of "collegiality." She also emailed him to say that students in the department were having strong reactions to his criticism of ASHE and suggested that he address their concerns in a "community conversation." He saw no reason to do so, nor that any good that would come of it.
Then, on July 5, 2019, Porter received notice that he was being removed from the Higher Education Program Area because, according to Pasque, the faculty could not make progress toward resolving issues with him there. Furthermore, he would have to teach an additional course, was barred from attending the orientation for new students, and was excluded from the department's Diagnostic Advisement Procedure, which negatively affected his ability to advise his students.
Upset at the way he was being punished because of his contrary views, Porter filed suit against NC State in September of 2021, contending that his First Amendment rights had been violated by the university's retaliation against him for his speech. Shortly after filing, Porter discussed his adverse treatment by the university in this Martin Center interview.
So far, Porter's suit has been unsuccessful. The district court judge dismissed his case, saying he had no legal grounds for complaint, and Porter appealed that ruling to the Fourth Circuit Court of Appeals.
On July 6, the Fourth Circuit upheld the dismissal, basing its analysis on the Supreme Court's decision in Garcetti v. Ceballos. It found that Porter's statements were not protected by the First Amendment because they were made in his capacity as an NC State employee, not as a citizen commenting on matters of public interest. Moreover, his "bullying" blog comment was not protected because it was "an unprofessional attack on a colleague."
But the court's decision against Porter was not unanimous. (Circuit courts of appeals typically hear cases with three-judge panels.) Judge Julius Richardson wrote a devastating dissent from the shaky (and transparently political) ruling that Porter's case cannot go to trial.
Judge Richardson took issue with the majority opinion at every point. Were Porter's statements unprotected by the First Amendment because he was just "doing his job," as the majority had determined? No, because it was not part of Porter's job to criticize the things he criticized. Porter could have remained silent about the "diversity" question and about the drift of ASHE into ideological activism. He'd clearly have been better off with regard to his employment if he had said nothing. In those instances, Judge Richardson persuasively argued, he was speaking as a citizen, and therefore his speech was protected under the First Amendment.
The judge also took issue with the majority over the question of whether the actions against Porter by NC State administrators were caused by his speech. The majority held that because the school did not remove Porter from the department for more than six months after the last of his controversial statements, he had not clearly established that his speech was the reason for the actions taken against him.
Judge Richardson made the far more convincing argument that NC State had for years been ratcheting up its threats against Porter because his statements upset the department's "progressives," thus making it hard to believe that there was no connection between them. At the least, Richardson argued, Porter should be allowed to present his case to a jury and make the defense try to show that his speech had nothing to do with the actions against him.
Finally, Judge Richardson observed, calling Porter's criticism of adding a question to the student evaluations "bullying" does not, even if that characterization were true, take Porter's speech outside of First Amendment protection. Harsh words are covered as much as polite ones.
This case should be appealed to the Supreme Court. If the decision stands, it will give "woke" university officials a playbook for getting rid of faculty members whose opinions bother them. According to the Fourth Circuit, what they need to do is claim that speech they dislike has harmed students and bullied other faculty members, so that punishment or termination is justified. If such "uncollegial" conduct is all it takes to retaliate against dissidents, free speech won't just be chilled-it will be frozen stiff.
We can only hope that the Supreme Court will reverse the Fourth Circuit with orders that Porter's case proceed to trial.
George Leef is director of editorial content at the James G. Martin Center for Academic Renewal.
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