Let’s pretend this is an academic assessment test. It has one question to help us assess the role of Academic Freedom in Higher education so we can decide the size and scope of tenure protection for make-believe professors.
Ready? Pick the answer that BEST matches the comparison.
The cray-cray, nut-case, Jew-hating, Barbara Bush-slandering, Healthcare disrupting, Fresno State instructor Randa Jarrar is to “professor” as Al Sharpton is to:
e. Answers b, c, and d, but NOT a.
If you answered “e.,” you are correct.
I have seen and read a host of defenses of Ms. Jarrar “right” to make her horrific comments about Barbara Bush, Jews, and normal people. Brit Hume tweeted out his belief she should not be fired.
I disagree with everything she said, but she should not be fired. https://t.co/fHGMx0Y7ZR
— Brit Hume (@brithume) April 19, 2018
The very smart, legally educated, David French tweeted out his outrage that people wanted her fired, and he followed up with an op-ed explaining why she absolutely should not be fired.
— National Review (@NRO) April 20, 2018
Ben Shapiro at Daily Wire wrote a piece making plain that in his view, the “Nasty Woman” should not be fired for her Barbara Bush comments. Shapiro was smart to limit that analysis solely to the speech aspect of the Bush comments.
Just today the renowned twitter personality and criminal defense lawyer “Popehat” tweeted out his utter contempt for what he implies are unprincipled, right-wing sites that don’t really stand up for free speech. To think, I was going to can this op-ed as it got old when I had to work and couldn’t finish will Ms. Jarrar was still in her 15 minutes.
Thanks, Popehat, you inspire me.
So. @TheFIREorg is my go-to place for campus free speech stuff, of course.
But in the last couple of years other sites covering campus free speech issues have sprung up.
Some people say those new sites are partisan right-wing, but nah, I'm sure they're principled.
— FiteMeHat (@Popehat) April 25, 2018
Many people believe tenure provides professors with an unlimited license to lose their minds, embarrass themselves, and hurt their respective employers. It does not, and it should not.
Tenure is the most abused and frankly absurd job protection scheme ever conceived. It is too often used as a shield for loons like Ms. Jarrar. Frankly, tenure is an awful system for the American educational consumer. It’s a terrible bargain for universities and students, and it is a drain on innovation and efficiency.
Tenure is confused with the completely necessary, legitimate interest of protecting “academic freedom.”
Tenure imposes a tax on higher education that is literally making students into a debtor class. I outline this entire problem in my Book, “Of Serfs and Lords: Is College Tuition Creating a New Debtor Class?” The book will be out in September. Suffice to say, I examine every aspect of tenure and academic freedom in that book, and those prepared to defend that system should read it. There’s a nice shameless self-promotion.
It is true that the current system of tenure protects a class of professors who engage in controversial speech related to their academic freedom. It is a protection no other profession or group of employees enjoy. When Ms. Jarrar bragged about her paycheck and her belief that she can’t be fired, she did so because basically, that’s true under the current system as it has developed and is implemented by universities.
Of course, if all Ms. Jarrar did was say nasty things about the deceased First Lady, the question of her punishment would be reduced entirely to two related but distinct questions.
First, does she have special First Amendment rights solely by virtue of being a state employee who was speaking in her private capacity as a citizen? The second discrete question is simple too. If she is speaking within the scope of her employment, does academic freedom permit her speech and does the system of tenure then protect her from punishment?
Let’s address the second question first. If Ms. Jarrar was speaking in her capacity as a “professor” in and on her field of expertise, then her academic freedom must be protected. Thus, the tenure system should rightfully protect her job. Tenure protects the indecent, the un-civil, the ill-informed, the radical, and even haters like Ms. Jarrar who engage in academic discussion related to their field of study.
Academic freedom should be limitless as it pertains to non-criminal speech related to a professor’s field of expertise. That is to say, other than inciting violence, her academic freedom and the speech derived from her chosen field should never be subject to punishment.
Tenure is not without limitations. Tenure is merely the job protection system that is used to protect, among other things, academic freedom. Tenure should not protect non-academic speech, or speech not related to an academic’s field of study, or any conduct that falls outside the scope of employment. Unfortunately, the current system has become one where tenure is used as a shield to prevent removing “professors” no matter what they do, short of felony violence.
The tenure class and weak academic administrators profiting from the same educationalist-first system refuse to apply post-tenure review to people like Jarrar. The result of this practice is that no one actively removes from the system dubious professors whose conduct falls outside real academic freedom or whose valueless contribution remain a drain or tax on education.
It is axiomatic that professors can’t be fired for their academic speech, and indeed academic freedom is essential for professors to thrive and for society test the bounds of thinking and advance it.
Ms. Jarrar is an English professor. She’s not a political science professor. She’s not a military expert. She’s not a professor of parenting. She has no academic credentials in the study of Judaism. She teaches English at a middle-of-the-road state college. Her desire to attack the Bush’s has nothing to do with English or the teaching of it.
More importantly, neither academic freedom nor the tenure system of protectionism should apply to Ms. Jarrar because both she and the school have said that her tirades represent her own, personal views, made outside of her job duties.
Well, then all these commentators suggesting that she not be fired because of academic freedom are barking up the wrong tree, right? Her conduct is not protected by academic freedom. Am I wrong on this Mr. White?
The only question before Fresno State is how far does it go to extend job protections for outrageous conduct that is not job-related, is not protected by academic freedom, and is injurious to the reputation of the institution?
If this is merely a non-job related, First Amendment issue, then the discussion is interesting and easier in some respects. Though for certain, prior Supreme Court holdings have confused the issue and may be responsible for the Jarrar’s of America.
The First Amendment protects Jarrar’s free speech right to say what she thinks and to do so free from government retaliation. You might then be tempted to ask, “well her employer is a state government; therefore, isn’t she protected.” Well, the law says she might be, unbelievably. But, should she be?
If you work for a private company and you say something outrageous, you can be fired for it immediately. The government can’t protect you from an employment decision. Contrary to the popular and incorrect belief of some on the left, your free speech is not protected against action by your private employer who finds your speech damaging to its name, its brand, its business, or its moral sensibilities.
When the government acts as an employer, shouldn’t it have the exact same rights as any other employer to uphold standards of conduct? Do Americans really want a system where government employees … that is … the government … have additional rights they do not have in the workplace regarding free speech?
What is the worst-case scenario of applying the law equally to government employees? Political zealots won’t take government jobs? How is that bad?
The Pickering case, on which many rely to analyze the facts in this Jarrar kerfuffle is anything but properly analogous. Pickering was a local teacher who wrote an op-ed criticizing his employer, a local school board, for its latest budget and for purportedly putting athletics above academics in that budget. He was fired because the Board found his statements to be false and because his “opinion” interfered with the efficient running of school district, in the opinion of the employer.
The Board really fired the man because he criticized it and its members in the newspaper. They didn’t like that. In the real world, your private employer can do that every day. In the Pickering case, the Supreme Court drew a bright-line rule on Free Speech by teachers or professors speaking on matters of public concern in their private capacity.
What the Supreme Court really did was determine that when the government acts as an employer, it loses the rights of all other employers in this country to determine the standards of acceptable conduct by its employees. That was 1968.
How has that been working out for us?
Fifty-years later, the Supreme Court has left us with the Randa Jarrar’s of the world. Pickering doesn’t protect Jarrar, nor should it. A government acting in its capacity as an employer should have no fewer rights to protect its brand from outrageous conduct, and government employees are not entitled to any enhanced rights over and above those of non-government employees. If you want to preserve your right to criticize your government. Don’t work for it.
Likewise, academic freedom doesn’t protect Jarrar, as we have established that Jarrar’s inanity is not related to her academics and was not a part of her academic freedom protected by her employer.
Remember, however, Jarrar’s hate “speech” is not the only piece of this employment decision puzzle.
If her potty-mouth and indecency were the only issue before Fresno State, one might excuse the University for failing to fire her and challenge the depth and breadth of a questionable Constitutional precedent.
Ms. Jarrar made it easy for Fresno State to fire her for other related conduct.
Ms. Jarrar falsely gave out a phone number, the number of a mental health clinic, pretending it was her own. This action on a public forum resulted in angry callers flooding that mental health clinic’s phone-lines, disrupting business, and preventing people in crisis from reaching the center.
That activity, besides being immature, reckless, and profoundly dangerous, is, by itself, an independent ground supporting her termination. It isn’t protected speech, it is the proverbial yelling fire in a crowded theater, falsely.
Ms. Jarrar isn’t much of a professor, which is why she confuses her actions with protected free speech or some perversion of academic freedom. Free speech, Ms. Jarrar, is when I identify you as a 300-pound pile of human crap stuffed into a 150-pound bag. If my employer didn’t like that, it could fire me. Other than that, the government cannot punish me for my opinion.
Ms. Jarrar isn’t engaged in academic freedom. She was engaged in reckless, disgraceful, hateful, non-academic speech that has already hurt her employer. She punctuated that activity with the deliberate act of disrupting a health care provider and preventing those in crisis from reaching help.
Universities, including Fresno State, claim they have procedures for reviewing the conduct and work of tenured professors. This is called “post-tenure” review. When one criticizes the costly, inefficient, and unworkable system of job protection called tenure, some academic will invariably leap up and say, “well, it’s not true we can’t be fired. We have a post-tenure review.”
Post-tenure review is when your own colleagues in the same tenure system you have are asked to decide if your conduct or work is so far outside the pale that your tenure should be revoked. Not surprisingly, the system nearly never produces the revocation of tenure by other tenured members of the club.
It’s an outright sham.
Fresno State has a clear path to firing Jarrar. It should grant her the due process the University system affords an employee, and if appropriate, as it seems on these facts, fire her.
Higher Education will survive without Ms. Jarrar, just as real churches have gotten by without phony reverends like Al Sharpton.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is an Attorney, a former Assistant Law School Dean, Law Professor, and Virginia state court law clerk. Dean Kelsey was also the CEO of a technology company specializing in combating cyber-fraud. He is a regular commentator on legal and political issues in print, radio and on TV.
Rich graduated from George Mason law school, clerked for the Arlington Circuit Court, and later joined an AM LAW top 10 law firm practicing commercial litigation. He left the firm to be counsel and CEO to a consulting firm, rising to CEO of Turiss, LLC, a technology firm specializing in computer forensics, digital investigations, and fighting cyber-fraud through civil intel services and new technologies. Upon the sale of the company, Kelsey returned to Mason Law, where in the years before his return, he both taught at the school and served as President of the Law Alumni Association. Kelsey was the Assistant Dean for Management and Planning.
At Mason, Dean Kelsey taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation. While serving the former George Mason Law, Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP.
Rich has appeared on radio, TV, and in print hundreds of times as both a legal expert and political and legal commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL. He writes on occasion for the American Spectator and CNSNews.com. He returned to private practice in September of 2016, and he is working on a book/expose on legal education.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
Rich has many opinions, and they are his own. His Twitter handle is @richkelsey.