Extension of the First Amendment to Private Colleges

Concerning the controversy that affected me a few weeks ago, the First Amendment quickly became the chief stumbling block for those eager to fire me or anyone else who may violate their opinions.  The blog I wrote was not hate speech. However, even it it had been hate speech, it would still have had  First Amendment protection.  As Eugene Volokh recently wrote in Reason:

Of course, there is no hate speech exception to the Free Speech Clause, as the Supreme Court unanimously reaffirmed this year in the Slants case. Private universities aren't legally bound by this (except in California, where a state law applies Free Speech Clause rules to them); but public universities, such as Texas A&M and UT, certainly are.

In the 2017 Slants case, Justice Alito wrote (I'm quoting Volokh) :

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Expressing hate toward the Democratic Party is perhaps the archetypal form of hate speech--at least according to politically correct academics.  However, partisan speech is not hate speech.  The Democrats who sent me threatening emails, necessitating the presence of five campus police officers outside my classroom two weeks ago, certainly see anti-Democratic Party speech as hate speech.  Of course, in their view calling Republicans Nazis is not hate speech while posting a pro-Republican poster is hate speech.

Justice Kennedy drew this conclusion (again quoting Volokh) in Slants:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

Hate-filled left wingers will define hate speech to mean any speech that does not agree with their educationist and socialist views.  Hence, it is important to push the limits of speech restrictions.

Happily, early in the sequence of events, I received a helpful email from the Foundation for Individual Rights in Education.  FIRE made clear not only that the speech in the blog was protected but also that any personnel action whatsoever, even an email, amounted to a violation of my First Amendment Rights.

In a 2016 piece, prior to Slants, Adam Steinbaugh of FIRE wrote about the Obama Justice Department's unconstitutional requirements of investigations of speech violations of Title IX.  For instance, in 1992 the Second Circuit Court of Appeals declared that the City College of New York violated the First Amendment by going beyond vocal condemnation and creating a committee to investigate whether "the professor's views, which have no place at the college, 'affected his teaching ability.'"

An extension of a California law that extends First Amendment protection to professors at private colleges might be a useful step to counteract the left-wing intolerance and prejudice that dominates American colleges.  Any private college that receives federal money should be required to comply with the First Amendment as would any public college.

Adam Kissel's Appointment Reflects Brilliantly on the Trump Administration

A friend just forwarded an article in Reason.com about  Education Secretary Betsy DeVos's appointment of Adam Kissel to deputy assistant secretary for higher education programs.  I worked with Adam on a grant several years ago when he was with the Charles G. Koch Foundation, and he was professional, knowledgeable, and effective. He had previously worked for the Foundation for Individual Rights in Education, where he also had done important work.  Adam combines a restrained brilliance with integrity and a commitment to civil liberties. President Trump's appointments of Deputy Assistant Secretary Kissel, Secretary DeVos, and regulatory czar Neomi Rao augur well for the course the Trump administration will take.

13th General Meeting of the National Association of Scholars

The National Association of Scholars (NAS) held its 13th general meeting at the Washington Marriott this weekend. I just returned. Steve Balch, who founded NAS in 1987, did an outstanding job in organizing the conference and attracting speakers, who included Ward Connerly, Victor Davis Hanson, Herb London, Greg Lukianoff, Anne Neal, Abigail Thernstrom and Congressman Thomas Petri. The conference had many high points, to include Ward Connerly's and Victor Davis Hanson's two talks each (all of which were phenomenal). For me, the most poignant discussion was that of Greg Lukianoff, director of the Foundation for Individual Rights in Education (FIRE). Greg outline a litany of abuses involving speech codes since 2007. It is depressing that today's colleges and universities continue to suppress speech.

Also excellent was the debate between Peter Wood of NAS and Cary Nelson of the American Association of University Professors (AAUP), which represents the left-wing viewpoint. Wood got the better of Nelson, but Nelson is to be complimented for his integrity in participating in the debate and the entire conference. I was glad to see that the AAUP was interested enough to send a speaker.

Steve Balch is retiring this year, and he deserves considerable praise for founding and making the NAS a vibrant reality.

Queen of Collegiality: O'Malley Threatens Karkhanis with Law Suit

Professor Susan O'Malley has simultaneously served as an officer of CUNY's faculty union, the Professional Staff Congress, and also as president of the CUNY faculty senate. In the two roles, which seem to conflict (faculty senate = employer; faculty union = employee representative), Professor O'Malley took a public position on the promotion application of Professor KC Johnson. This seemed to me not only inappropriate, but a breach of her fiduciary duty to Professor Johnson. I raised this issue with New York's Public Employee Relations Board, but New York's PERB was not interested even though the Taylor Law specifically prohibits management-dominated unions.

Professor Johnson ultimately won his promotion on appeal, and he is now probably the best (or one of a few best) known author(s) at Brooklyn College, with his recent book Until Proven Innocent. At the time of his promotion battle Johnson had much better credentials than most of the faculty deciding his case, yet the issue of Johnson's "collegiality" was the academic Babbitts' rallying cry. Professor O'Malley was one of those criticizing Professor Johnson.

One would therefore expect Professor O'Malley to attempt to resolve her ongoing conflict with Professor Karkhanis in a "collegial" manner. Perhaps she might write a letter to Karkhanis; invite him out for lunch; or ask Karkhanis to serve on an academic committee. But no, Professor O'Malley's definition of "collegiality" is: if someone disagrees with you, then try to fire them (Johnson). If that doesn't work, send them a lawyer's letter (Karkhanis).

O'Malley's actions once again demonstrate that those who raise issues of "collegiality" in faculty personnel committees are often vicious liars who aim to deflect their true, defamatory intent.

The website of the Foundation for Individual Rights in Education reports that:

"CUNY professor and former chair of the Faculty Senate Susan O’Malley was the subject of a few issues of The Patriot Returns last spring. In the March 12 issue of The Patriot Returns, Karkhanis wrote an article called “MOHAMMED ON HER MIND!,” with the subheading, “O’MALLEY’S OBSESSION WITH FINDING JOBS FOR TERRORISTS.” Karkhanis refers in that issue to O’Malley’s attempt, at a Faculty Senate meeting, to find a job at CUNY for Mohammed Yousry, who was convicted of conspiring in the plot to bomb the World Trade Center in 1993. Citing Faculty Senate meeting minutes, Karkhanis wrote that O’Malley “was not going to rest until she got this convicted terrorist a job.” Karkhanis was not the only one to criticize O’Malley—FIRE Adviser and Phi Beta Cons contributor Candace de Russy blogged about O’Malley’s advocacy for hiring Yousry and about Karkhanis’ coverage on March 26"

The letter alleges that Karkhanis's remarks about O'Malley are defamatory, yet O'Malley is a tenured academic likely nearing retirement who is likely entitled to a hefty, low-tier CUNY pension (the earlier cohorts of CUNY faculty enjoyed much more generous pensions than the later ones). Since there are no damages, the only purpose of a law suit is to suppress Karkhanis's speech and to intimidate him. The law suit threat is not only evidence of O'Malley's lack of collegiality, but her intent to suppress all who disagree with her left-wing views.