There is a rather considerable controversy over academic freedom out of Widener School of Law where professor Lawrence Connell has been suspended after using Dean Linda Ammons in hypotheticals in class. Two students filed complaints alleging that his use of Ammons (who is black) was violent, racist and sexist. The school is demanding that he retract the statements.

The incident came in the 2010 criminal law class at Widener. Connell has wisely demanded a public hearing by the tenure board. His counsel says that Widener Vice Dean J. Patrick Kelly and Ammons offered to allow Connell to return to campus only if he recanted his statements and to undergo psychiatric evaluation. Since Ammons is black, there are suggestions that the hypotheticals were racist because Connell used Ammons as the victim in these hypotheticals “at least 10 times.”

I must confess that I routinely incorporate the Dean at our school in the same type of hypotheticals as well as any contract professors. Indeed, my final every year involves some struggle between myself and the Dean and contracts professors. Absent something more, I fail to see the basis for such disciplinary action. Other professors have raises objections to the case on sites like Volokh.

In his letter, Kelly accuses Connell of an “outgoing pattern” of misconduct, and cites his use of such hypotheticals, including “cursing and coarse behavior, “racist and sexist statements” and “violent, personal scenarios that demean and threaten your colleagues.” Without more, the allegations raise serious concerns over academic freedom and privilege.

I am most disturbed by the statement of Gregory F. Scholtz, associate secretary and director of the American Association of University Professors. AAUP is organization that is expected to defend academic freedom. Yet, Scholtz is quoted as saying “Education is all about pushing the boundaries, and it’s all about controversial ideas, but the question always is when does it cross the line. Given our modern culture and the violence that exists, you’re really asking for trouble when you talk about killing people.” Really? That is news to those of us who teach torts and criminal law. It is common for faculty to incorporate colleagues into hypotheticals as good-humored jokes. At my school, contracts professors respond by incorporating me into their own hypotheticals. I have never found it even remotely bothersome or insulting. It keeps the attention of students and adds a needed element of levity in lectures.

In its 1940 statement on academic freedom, the American Association of University Professor (AAUP) notes that any rules on discouraged or prohibited material should be put in writing as formal policies by a school at the time of the appointment:

Academic Freedom

1. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
2. Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.[2] Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
3. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

One allegation is that Connell asked students about a hypothetical about the Dean doing drugs out of her office. I have used precisely that allegation in the past involving past deans. Scholtz insists that this is a matter left properly to his colleagues alone: “It’s nothing new to us. The real issue here for us would be where is the line between academic freedom and professional unfitness. And the answer we always give is only the peers in his [university] can draw that line.” Again, I beg to differ. If colleagues strip a faculty member of academic freedom, it is a matter for the entire academy and the AAUP. Just as the constitution protects against majoritarian abuse, so do principles of academic freedom.

There may be more to this story. However, supporters of Connell have noted that he is viewed as one of the more conservative members of the faculty and they believe he is being attacked in part for his politics. I am disturbed by the absence of concrete allegations beyond the use of the hypotheticals. I am also concerned that there is no reference to the Administration first conferring with Connell and simply asking him refrain from the use of such hypotheticals. If a colleague ever suggested concern to me about use in a hypothetical, I would immediately stop including them. Indeed, I often mention to my colleagues that I have included them and we often chuckle over the rivaling hypotheticals.

According to another article, the Administration has prepared formal charges and now includes an allegation from 1996 that Connell made an inappropriate comment about the appearance of a female student. That was five years ago. That would make for a tough case for murder in Delaware, where the statute of limitations states:

Murder, attempt to commit murder, Class A felony, attempt to commit Class A felony: none; others: 5 yrs. unless forensic DNA evidence, then 10 yrs.; any offense which includes forgery, fraud, breach of fiduciary duty, theft or misapplication of property, misconduct in public office: additional 3 yrs.; any sexual offense where victim was under 18 yrs. of age

To be fair to professors, such allegations should be addressed when they are made to allow the professor the opportunity to call contemporary witnesses.

Once again, I do not know if there are more to these allegations and I do not know either Professor Connell or Dean Ammons. However, I would have expected much more in terms of the allegations used to remove a faculty member. The administration must have known that the use of class hypotheticals would raise serious academic freedom issues.

Ironically, Dean Ammons (who has an impressive record of service and publications) has written on the incorporation of controversial statements in classrooms in Dealing with the Nastiness: Mixing Feminism and Criminal Law in the Review of Cases of Battered Incarcerated Women – A Ten Year Reflection, 4 Buff. Crim. L. Rev. 891 (2001). In the article, Ammons notes that difficulties professors may have in the incorporation of the subject in class, observing that “today some view even the label feminist as something akin to a four-letter word.”

There is a great danger in creating a chilling effect on academic freedom when faculty are called out their hypotheticals. For that reason, these matters are generally addressed with a simple conversation with the faculty member.

While courts generally defer to schools on such internal matters, there are viable contractual claims that can be made in court following a suspension for matters protected by academic freedom. See Urofsky v. Gilmore, 216 F.3d 401, 410 (4th Cir. 2000), (“As far as the courts are concerned, administrators may exercise extensive control over curricular judgments so long as they do not penalize a professor solely for his political viewpoint.”).

In Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Supreme Court stated that “our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us … . [and] that freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” In a concurring opinion in Sweezy v. State, 354 U.S. 234, 263 (1957), Justice Frankfurter identified the “four essential freedoms” of universities to determine “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

There are critical issues at play in these cases and the current allegations against Connell far short of what the academy normally expects. The burden is on the law school to offer as the basis for the removal of a faculty member.

Source: Delaware Online

Jonathan Turley

Kudos: Sam Dillon and Mickey Liebner