“Federal judge green-lights much of a First Amendment case against the University of North Texas brought by an adjunct professor who said he lost a job for “joking” about micro-aggressions in a faculty lounge.
A former University of North Texas math instructor’s First Amendment case against the institution may proceed, in large part, according to a federal court in Texas.
The case involves “bedrock constitutional principles protecting freedom of thought and expression,” Judge Sean D. Jordan wrote in his 69-page opinion. And amid “a slew of constitutional claims” by the defendant, “a single question is paramount: What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer?”
Some background: Nathaniel Hiers, then a recent Ph.D., started teaching multiple courses off the tenure track at UNT in 2019. In November of that year, according to his original complaint, someone anonymously left a stack of educational-style fliers about the harms of micro-aggressions in the math faculty lounge.
Hiers says that he disagrees with microaggression theory on the grounds that it “promotes a culture of victimhood” and “suppresses alternative viewpoints.” Yet it was in the spirit of lounge “banter” that he drew an arrow pointing to the fliers on the room’s chalkboard and wrote, “Please don’t leave garbage lying around.”
Just days prior, the university had asked Hiers via email to teach courses the following spring, and he agreed—though he hadn’t yet signed a formal offer letter. After the lounge “joke,” however, his department chair, Ralf Schmidt, criticized his chalkboard comment as “stupid,” “cowardly” and potentially threatening, and pressured Hiers to apologize. Hiers says he did not retract his comment, arguing that if it was all right to leave fliers, it should be acceptable to criticize them, as well. He also declined what he says was Schmidt’s suggestion (not order) that he take additional diversity training, beyond what the university already required.
Schmidt allegedly rescinded the spring teaching offer soon after this conversation. Hiers says he was blindsided, as he considered the earlier email correspondence about spring 2020 courses to constitute an agreement—even a contract.
When Hiers asked Schmidt what had happened, Schmidt via said via email, “Everyone makes mistakes, and I’m all for forgiveness if actions are followed by honest regret. But you very much defended your actions, and stated clearly that you are not interested in any kind of diversity training.” He added, “Your actions and response are not compatible with the values of this department. So with regret I see no other choice than to not renew your employment.”
Hiers sued North Texas and Schmidt, plus additional named administrators, in 2020. He alleged that the university and its various employees, in their personal and professional capacities, retaliated against him in violation of his First Amendment right to free speech. That is, Hiers says he was effectively fired for speaking on a matter of public concern—microaggressions, “in the context of teaching and scholarship”—in a way that never threatened the university’s ability to efficiently provide services.
Hiers accused the university of violating his civil rights in numerous other ways, as well, including via viewpoint discrimination and breach of contract. He alleged, too, that UNT’s misconduct policy is “overbroad” in that it restricts constitutionally protected speech by defining misconduct “non-exhaustively and with terms like ‘behavior that significantly impairs the function of teaching, research and creative activity, or service,’ ‘[a]ction(s) that impair or prevent other members of the university community from fulfilling their responsibilities or that create a clear and present danger to members of the university community,’ and ‘activity adversely affects the mission or reputation of the university.’”
UNT moved to dismiss the lawsuit, arguing that Hiers’s constitutional claims for damages were barred by sovereign immunity, that no constitutional violation occurred in the first place and that university officials were entitled to qualified immunity because they didn’t violate any clearly established right. Most of the university officials named in the lawsuit weren’t even involved in the dispute, the university said in court, and Hiers’s breach of contract claim was both barred by sovereign immunity and meritless.
In his written opinion about the case, Jordan disagreed with much of the university’s position, saying that Hiers had “plausibly alleged” First Amendment violations based on retaliation, viewpoint discrimination, unconstitutional conditions, compelled speech and “as-applied overbreadth” (but not facially unconstitutional overbreadth) of the misconduct policy. This is all regarding the defendants in their official capacities.
Regarding the defendants as individuals, Jordan dismissed, without prejudice, some of Hiers’s claims. But he didn’t let them off the hook for retaliation, saying, “Hiers has also met his burden of showing that the university officials are not entitled to qualified immunity on his retaliation claim because any reasonable university official would have known that it was unconstitutional to discontinue his employment because of his speech,” which touched on a matter of public concern. (Jordan also said that the university failed to assert “any interest in requiring Hiers to recant his views on microaggressions and apologize for his speech,” and so a common legal balancing test between an employee’s free speech and an employer’s interest in operational efficiency came out in favor of Hiers.)
Jordan further dismissed Hiers’s breach of contract claim, without prejudice, saying that the “problem for Hiers is that no such contract ever existed.” The emails about the spring 2020 classes, which don’t get into details about things like compensation, “contain insufficient terms to create an enforceable contract,” he added.
UNT didn’t offer immediate comment on the case. One of Hiers’s lawyers, Tom Brandon, said that the opinion bodes well for his client.
“Here is this nontenured professor, so they thought, you know, we can just can this person,” Brandon said of UNT. “Well, down the road, if you’re accused of First Amendment violations and retaliation, then, tenured or not, you’re still going to have to potentially be facing some adverse consequences.”
Brandon said the case wasn’t a referendum on micro-aggressions but rather about how institutions address thorny speech issues with their employees.
“I believe it could have been dealt with privately rather than a termination,” he said. “More emphasis on that would have probably yielded a different result.”
Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at the University of California, Los Angeles, and a frequent commentator on free speech issues, noted that Jordan dismissed Hiers’s Section 1983 claim for damages against university officials in their official capacities for lack of jurisdiction based on sovereign immunity. While this and other aspects of the opinion limit the potential scope of recovery for Hiers, Volokh said, Jordan’s decision still leaves room for “a substantive claim that can be had for retaliation,” in the form of an injunction against the defendants in their official capacities and damages against them their individual capacities.
Over all, Volokh said, the Hiers case thus far demonstrates how the First Amendment protects public college and university faculty speech about “important public matters. It’s not categorical protection. In principle, if it’s disruptive enough, at least in certain contexts, it might be restrictive. But it’s a pretty broad protection, and it protects the untenured and the lecturers as well as the tenured ones.”
Colleges will shift away from campuses, and the four-year degree.
Students skipped out on college in droves during the pandemic: undergraduate enrollment has fallen 7.8% since the fall of 2019. To get students to return to school — or come at all — colleges will need to make their pandemic-era flexible options permanent and adopt new approaches to education, writes higher education expert and author Jeff Selingo.
Higher education is known for its rigid schedules and curriculum. But during the pandemic, schools embraced flexibility. Classes were redesigned with a mix of face-to-face and online content. Textbooks were exchanged for digital materials. The academic calendar was reimagined with fewer breaks. Colleges can continue to offer these things.
Georgetown University R&D leader Randy Bass is even thinking about revamping the college degree itself, where students earn a degree at their own pace. Instead of a 2- or 4-year degree or a bachelor’s or master’s degree, he calls it a “3-to-5 flex.”
With a demographic cliff coming in the middle of this decade as the number of high-school graduates falls off, providing something different is the only way all but the biggest brand names in higher education will survive.
[Ed. 2020: universities don’t want to get sued for giving students covid. remote. 2021: universities don’t want to discount tuition for remote instruction. no remote. see a theme? $$$$$]
Scholars question the legality and morality of Cornell’s refusal to consider requests from faculty to teach online — even requests “premised on the need for a disability accommodation.”
By Elizabeth Redden
August 13, 2021
Cornell University said this week it will not consider any faculty requests to teach remotely instead of in person, not even from those seeking accommodations for chronic illnesses or disabilities.
Scholars questioned the legality and the wisdom of Cornell’s stance in light of the ongoing COVID-19 pandemic. The Americans with Disabilities Act requires employers to provide “reasonable accommodations” to individuals with disabilities who are qualified to fulfill the “essential functions” of a given job.
Michael Kotlikoff, Cornell’s provost, and Lisa Nishii, vice provost for undergraduate education, said in a letter to faculty and instructional staff Wednesday that Cornell has determined that face-to-face instruction is vital to the resumption of “normal operations.”
“In-person teaching is considered essential for all faculty members and instructional staff with teaching responsibilities,” Kotlikoff and Nishii wrote. “Accordingly, the university will not approve requests, including those premised on the need for a disability accommodation, to substitute remote teaching for normal in-person instruction. For individuals with disabilities, the university routinely works to explore a wide array of possible workplace accommodations. Any faculty member in need of any disability-based accommodation should contact the Medical Leaves Administration office (MLA). For individuals who are not able to perform the essential functions of their position because of a disability, MLA can advise them of other options, including the availability of a medical leave.”
Some criticized the policy as unfeeling toward faculty who are immunocompromised or who have other medical conditions that make them more vulnerable to severe outcomes should they contract COVID-19.
“We teach because we enjoy it, and it’s rewarding,” said Rebecca Harrison, a Ph.D. Candidate in Cornell’s Department of Science & Technology Studies who represented graduate students on Cornell’s reopening committee last year. “And all of a sudden when we don’t feel supported, or our health matters less than the institution’s success, it’s demoralizing and eventually it’s not sustainable.”
Ruth Colker, an expert on disability law and the Distinguished University Professor and Heck Faust Memorial Chair in Constitutional Law at Ohio State University, questioned the legality of Cornell’s approach. “I would say they got bad legal advice,” she said. “Historically, employers have been given some deference if they put in writing what the essential qualifications are before the person made the request for accommodations. But we have an unusual situation right here because last year Cornell and other universities told students that they could accept their tuition and provide them with an appropriate education through all-online instruction.”
Colker added that the process of seeking reasonable accommodation is “supposed to be an interactive good-faith dialogue, in this case between an employer and an employee. The employer is supposed to refrain from having a priori conclusions about what would be reasonable in a particular circumstance, That’s why I’m shocked by Cornell putting this in writing in the way they did. It seems to me they’re violating that basic principle.”
Arlene S. Kanter, a professor of law and director of the Disability Law & Policy Program at Syracuse University, agreed.
“The whole point of the ADA is to provide an opportunity for an employee to have an individualized, interactive conversation with their employer about the appropriateness of an accommodation,” she said. “Blanket rules that would prohibit an individual with a disability from showing that in their individual case they’re entitled to an accommodation would be disfavored by any court throughout the country.”
Kanter also said that while employers do not have to provide an accommodation if doing so would present an “undue hardship,” she thinks a university would be unsuccessful in arguing that allowing a professor with a documented disability to teach online would present such a hardship.
“For the past year and a half people have been teaching remotely,” she said. “If they could do it then, why would it be an undue hardship now?”
Cornell declined requests for an interview about the policy on Thursday. In their letter, Kotlikoff and Nishii emphasized the safety protocols Cornell has put in place. The university is mandating vaccination against COVID-19, as well as requiring students to wear face masks indoors and to participate in surveillance testing.
“As has been repeatedly demonstrated over the course of the pandemic, the university has taken a careful and rigorously scientific approach to such risks, aimed at pursuing its academic mission while placing the highest priority on campus and community health,” they wrote. “Our plan for the fall semester is designed to minimize the risk of virus transmission and provide a safe environment for learning and discovery. While some transmission has been observed elsewhere among groups of people with substantial vaccination rates (for example, the CDC reported on a cluster in Provincetown, Mass., where roughly three-quarters of those involved were vaccinated), our on-campus vaccination rate of 94 percent is higher than those other instances. Moreover, the populations in which these outbreaks occurred were not protected by regular testing, nor did they use masks at the level that they will be used by the Cornell community.”
Sami Schalk, an associate professor of gender and women’s studies at the University of Wisconsin-Madison, said Cornell’s protocols are “great safety measures that will protect probably the vast majority of their campus. But there are many disabled folks or immunocompromised people who have been pretty hyper-isolated over the past year and a half. To force them out, it’s just unconscionable.”
Schalk said that while she’s heard from other professors that their institutions have verbally discouraged faculty from seeking remote teaching as an ADA accommodation, she was surprised by Cornell putting such a policy in writing. “It is hard enough for disabled people to work and learn at many universities and this will force people out in a way that sets us back in terms of disabled people having access to higher ed,” she said.
Ellen Samuels, a disabilities studies expert at UW Madison and a professor in the departments of English and gender and women’s studies, called Cornell’s policy “morally questionable” and one that “flies in the face of all the claims about diversity, equity and inclusion that universities are fond of making these days.”
“You’re taking a group of people who worked very hard and took a lot of personal risk to keep the university going and now the university is turning around and saying, not only will we not grant you the ability to make your own choices about how much risk to take this fall, but we won’t even consider fully documented ADA accommodations requests that go through the usual university channels — even though the number of people who can make those requests and access that medical documentation is so small at a large university like Cornell,” Samuels said. “The message that’s being sent is we care so little about your labor and your safety that we’re willing to risk breaking the law in order to force you into the classroom.”
by Russell Thacker, PhD
“Is it possible to know my students well enough to love them?” This question was on my mind a lot this year. As an online instructor with students dispersed around the country and in a pandemic when students and faculty weren’t able to meet as regularly as before, I found it difficult to know what was actually going on in my students’ lives.
Sure, I knew enough about my students. There was a nice headshot in the school directory and some background information about their class standing. They each uploaded a polished video introduction, and their papers contained some clues to their personal, family, or cultural backgrounds. But I often found myself wondering, do I really know them?
One student whom I had been emailing all week about a class issue mentioned in a discussion post to another student that she had just spent a few days in the hospital and was recovering from some health issues. Another had to withdraw from classes unexpectedly due to stress. And a third student who was uncharacteristically upset over an assignment later revealed he was immuno-compromised and had been unable to leave his apartment for some time. And on and on the experiences went. I often wished I could sit down and have a conversation with each of my students, face-to-face and heart-to-heart. Just five minutes during an office hour to say hello, ask a few questions, and check body language might be able tell me more than fifty minutes of email, discussion posts, or the occasional video chat.
But this was not possible this year, and it may not be likely in the future with the growth of online education. Even after the pandemic, distributed and asynchronous online learning will remain a staple of higher education. Online education has proven excellent at increasing access but poor at expanding empathy. This matters because faculty-to-student and peer-to-peer relationships are just as valuable products of higher education as the content of the learning itself. As one education scholar, Jennifer Morton, cautioned, “Online education can teach very many things, but it is not a promising space for students to practice and develop the non-cognitive skills they need to navigate many aspects of having a successful career in the middle-class.” It will be increasingly important for online instructors to find ways to build relationships with their students in new and creative ways.
How can you close the distance between you and your students? These five practices can help any online, remote, or asynchronous teacher better connect and empathize with their students.
Invest in Learning About Students Upfront
Making deliberate efforts to learn about students at the beginning of a course can yield important insight. One teacher distributes a personal background and goal survey to each class member and uses this information to make personal connections with them throughout the course. Others schedule one-on-one video meetings with each student in their first two weeks of the course.
Build Informality into Course Structures
Technology can be wonderful for connecting, but it can also make interactions more formal than they need to be. When I log into a Zoom meeting, there is pressure to begin right away and then sign off at the end to use the time responsibly. But in-person classes are not like this. There is informal time at the beginning, end, and at various points throughout. You can start online class with icebreaker questions to get everyone talking, schedule brain breaks for students to interact with each other, and practice “last one out” by staying online after class until everyone else has left in case someone wants to speak with you.
“I Just Called to Say…”
You don’t need to wait for a reason to check in with students about how they are doing or how the class is going. Through email or chat, ask if there is anything you need to know as an instructor that is happening outside class that could affect their class performance. Better yet, be familiar with what they have shared about their background and goals so you can follow up on their interests.
Ask for a Mid-Class Evaluation
Honest feedback is hard to come by in an online space until the end of the course. Students may say the right things when asked, and online discussion boards typically have a rosy complexion. This leaves me wondering how students are really doing in the course. I have found that asking for feedback during a course through a mid-term survey or focus group yields better insight and gives the students a place to open up and be more vulnerable in their responses. Also, reaching out to individual students to ask for their feedback on an assignment is a great way to build rapport.
Treat Information with Utmost Care
Finally, it can be difficult for students to share information with their instructors whom they have never met in person or who live far away. When students reveal any piece of information, treat it with utmost care. Carefully regarded information can go a long way toward building trust and deepening connections.
Of course, loving your students isn’t solely dependent on knowing them. We should love them regardless. But online teachers can build better relationships of trust and be more effective in supporting students through a stronger personal connection, and this requires more awareness than online teachers usually have. What other techniques have you found useful in closing the empathy gap between you and your students?
What I do has been given many titles: Professor of Practice, Teaching Professor, Clinical Professor, Instructional Professor. I am not a classic academic, although I do research.
My intentional student has always been the non-traditional student. Why? Because I have never felt greater, more immediate power to effect social change than when I teach. Not merely in the information I may impart, but in the professional behaviors I may teach. The disciplines of maturity and scholarship. Many students I teach may not have had a professional in the home growing up, so how can we begin to expect them to understand professional behavior? Why and how?
When a student gets angry at me, rarely, I make them an offer. Let’s not do this now at the beginning of class. I have to start class. Come see me after class is done and let’s make an appointment to discuss this. Come see me in my office during office hours and let me show you how to disagree with your boss and not get fired. Then, I will reconsider your grade (and, likely improve it if they accept my offer).
I am a first generation college student. We didn’t have a dictionary in the house when I was in grade school, and I am the youngest of six. My parents had to buy me a dictionary because I needed it and wanted it for school. Lovingly, my parents and my brothers would make fun of my interest in school.
I refuse to allow in my classroom what call “Stinkin’ thinkin'”. I can’t. I’m not good enough. I don’t have what it takes. Others are better than I am. They belong here. I don’t. “Imposter syndrome”, call it what you like. I don’t allow, and I will pause whatever is going on privately, and make the student say, in the words of the (joke) great Dr. Stuart Smalley, who teaches at SNLU, “I’m good enough. I’m smart enough. And, gosh darnit, people like me.” They don’t get the points until they say the magic words. And, when the bad habit rears its ugly head again, the magic words, or no points.
When I took my students on a field trip to the Motorola system staging area where they could see all the engineers integrating all the equipment before shipment, one of my students paid me a great compliment and said, “Mr. McCormick, that was tight.”
As the coronavirus pandemic pushes more and more universities to switch to remote learning — at least to start — 22% of college students across all four years are planning not to enroll this fall, according to a new College Reaction/Axios poll.
Why it matters: Scores of colleges were already approaching a financial cliff before the pandemic began. Steep drops in enrollment could push some over the edge.
Students are making alternative plans for the fall.
- Of those not returning to school, most — 73% — are working full time. Around 4% are taking classes at a different university, and 2% are doing volunteer work.
- Freshmen who are unwilling to sacrifice the experience of a normal first year of college appear to account for a big chunk of those who are planning not to enroll this fall. Harvard, which is going fully remote, says 20% of the students in its incoming freshman class are deferring.
- Students also recognize the risk. 85% believe they are likely (or very likely) to be exposed to the coronavirus if they’re on campus this fall.
Some colleges are planning to welcome students back. And those kids are preparing for a very different college experience.
- No more dorm life: Of the students returning to a campus, 56% are living off-campus, 7% are in single dorms and 9% are in doubles. Many universities are limiting dorm capacities.
- Party police: A clear majority — 58% — of students say they’ll tell the school if they see a peer violate campus safety protocol.
- Tailgating is over: 77% say their school shouldn’t participate in football and other sports this fall.
Coronavirus swept students from campuses this March as America absorbed the full impact of the coronavirus. Since then, colleges have been monitoring COVID’s “surge, sink, surge, settle,” and blueprinting their plan to bring students back.
Now, students are trickling back onto campus in formats from “Zoom class from your dorm,” to full-on, in-person instruction.
The big questions:
• Will students come back?
• Will they follow protocol?
• What will things look like?
Our latest findings suggest things will look different. They imply there is potential for success in safely re-opening, with some key warning signs.
Enrollment: 22% of current college students say they are not attending college this Fall.
• Most of whom are working full-time in the interim.
Work: 27% of students lost their job this summer.
COVID compliance: 58% say they will not notify their school if someone breaks campus safety protocol.
• Though, 83% say they plan to comply with COVID protocol. We will monitor this statistic.
Sports: 77% say their college should not participate in football and other fall sports given the risks.
Below are the complete list of key findings:
College Reaction/Axios Poll | n=798 | August 16-17
• 27% of students lost their jobs this summer
• 22% are not enrolling in college this Fall
• 83% say they plan to adhere to college’s complete COVID-19 protocol (we’re going to track to see if they actually stick to their prediction).
• 77% say their school shouldn’t participate in football and other sports this Fall
• Of those living on campus, 58% say they will not notify their school if someone breaks campus safety protocol
At the moment, some schools are prohibiting accepted freshman from deferring matriculation. Only sophomores and above are permitted a deferral, meaning they already have skin in the game. Freshman who do not enroll in required on-campus classes must re-apply for next year, competing with newly graduating HS seniors, with no guarantees.