Stern Rebuke: Auburn University Hit With Punitive Damages in Free Speech Case

Auburn University has lost a major case involving free speech after a jury ruled in favor of Prof. Michael Stern, a tenured economics professor. The jury ruled that Auburn retaliated against Stern for his public criticism of the school’s treatment of student athletes, particularly their alleged favored treatment in the College of Liberal Arts. Notably, the jury awarded punitive damages against the university, a relative rarity for juries but well deserved in this case.

Professor Stern went public with his view that the university was using the College of Liberal Arts’ Public Administration major to offer athletes an easy education, particularly as part of the school’s famed football program. While we often write about the courage of professors to offer dissenting views on political issues, the criticism of anything that touches on the football program at Auburn takes an unparalleled level of chutzpah.

Stern quickly found that such criticism would come at a price. He was removed as department chair and found himself the recipient of lower bonuses and raises.

Stern filed a 42 U.S.C. § 1983 action claiming the violation of his First Amendment rights. He named five Auburn University officials: President Jay Gogue; former President Steven Leath; former Provost William Hardgrave; former Provost Timothy R. Boosinger; and former Dean of the College of Liberal Arts Joseph Aistrup. (Only Gogue was sued in his official capacity as opposed to his individual capacity).

Stern’s complaint is quite strident and leads out with an attack on the school for accepting more from the conservative Koch foundation:
“The College of Business Administration sold out to the Koch Foundation and engaged in rigged hiring in exchange for money.”

However, it was the allegation of clustering of athletes in the department that drew the sharpest action from the university. Stern’s emails were quoted in Wall Street Journal and Chronicle of Higher Education articles.

Stern also cites others who questioned how so many players could end up in this department:

John Urschel of the Baltimore Ravens discovered the large cluster of football players in PUBA at Auburn and wrote about it in his “Math Meets Football” blog. Mr. Urschel calculated the odds that the amazingly high density of football players in the PUBA major could have occurred randomly at roughly 1 in 3,000,000,000,000,000,000,000,000,000,000,000,000 (1 in three undecillion). Pretty low odds.

In its earlier summary judgment ruling, the court began with a discussion of the highly analogous case of Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205391 U.S. 563, 574 (1968). In that case, the Supreme Court ruled in favor of public high school teacher Marvin Pickering, who wrote a letter to the local newspaper criticizing a school board’s allocation of funding for athletic programs. He argued that academic integrity was being sacrificed for sports.

The decision is a substantial victory for free speech. It amplifies earlier cases affirming a “public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos547 U.S. 410, 417 (2006). While courts have ruled that “a public employee’s right to freedom of speech is not absolute.” Carter v. City of Melbourne731 F.3d 1161, 1168 (11th Cir. 2013), the Supreme Court in Pickering391 U.S. at 568, ruled that the state must strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. (alteration added).

There seemed little balance struck in this case and the jury responded by hitting Auburn with punitive damages. It awarded $145,000 in compensatory damages and $500,000 in punitive damages.

It brings a new meaning to the school cheer: “Two bits, four bits, six bits, a dollar, all for Auburn, stand up and holler!” Stern now has $645,000 for not hollering for Auburn’s football team.

Here is the original complaint: Stern v. Auburn.almd.67848.1.0_1

37 thoughts on “Stern Rebuke: Auburn University Hit With Punitive Damages in Free Speech Case”

  1. Jonathan: While “free speech” is being protected at Auburn the same thing is not happening over at Musk’s Twitter. Employees who have criticized the boss have been fired. Outside critics have been suspended indefinitely. It’s been a tsunami of chaos at Twiitter. Musk has fired half the workforce. The finance and payroll departments are a shell. Key system engineers have been fired or have resigned. Disabled employees who can not return to HQ have been fired. They have filed an ADA class action against the company. The chaos is spilling over to other Musk companies. Eight employees at Space X were fired for circulating am open letter critical of Musk. These employees have filed unfair labor charges with the NLRB. At Musk’s Tesla factory in Texas construction workers are suing over wage theft and unsafe working conditions. On Thursday Musk announced the HQ was being closed for the weekend. Employees were locked out. Musk issued an ultimatum to employees. Either agree to work long hours at the same pay on “Twitter 2.0” or resign because the company is facing bankruptcy. Large numbers of employees took the second option. They don’t see any future at Twitter under Musk.

    The Q is what is Musk really up to? Some of his supporters think the man-child genius has a secret plan that will ultimately succeed. I think Musk’s plan is to turn Twitter into a right-wing blog spewing out disinformation and conspiracy theories 24/7. Donald Trump found out that such a platform is not very appealing to the mainstream. Most Twitter subscribers want facts not wild conspiracy theories. It looks like they are going to find that there will be little factual information on Musk’s Twitter–just fraud, scams and dangerous impersonations.

    Now you would think the richest man in the world could do better things with his money than destroying Twitter. Say philanthropy? We know Musk is fixated on taking people to Mars. But there are a lot of homeless living on 5th Street in LA who have never been to the Moon. Just a thought, Elon.

    1. As is typical you do not understand Free speech.

      Free speech is a legal issue at Auburn because:
      Its policies and code of conduct promise professors free speech and academic freedom
      Essentially the right to speek freely about Auburn is an Auburn professors CONTRACTUAL RIGHT.
      Next Auburn is a Public university – therefore constitutional rights of free speech apply in SOME context at Aubrun.

      Musk is a private employer – unless employees at twitter have some contractual arrangement granting them free speech,
      They do not have the right to free speech in the context of Twitter.

      In fact employees GENERALLY have only the rights in their employment contract and possible a few specific ones granted by law.

      Not only can an employee be fired for their speech. They can be fired for no reason at all.
      That is life. That might sound unfair to you – but get over it life is not fair.

      Twitter is Musks company. He is free to run it as he pleases.
      You are free to criticise it as you wish.
      If you are an employee Musk is free to fire you for doing so.

      Just to be clear the right to free speech does not mean that all speech has no consequences.

      Defame someone and you could get hit with millions in damages.

      We have spent centuries working out how free speech and free will more generally actually work in the real world.

      I welcome your efforts to find a better way. But you should understand that the odds of you doing so are tiny.

    2. The Q is NOT what Musk is up to. That is entirely up to him.

      I would further suggest that your “secret plan” concoction is obvious nonsense and completely inconsistent with Musks history.

      While I am certain that Musk Bought twitter with broad intentions to fix problems and make it more valueable.

      I am equally certain that he did not expect everythign to go well, nor did he expect to come in the front door and follow to the letter some “secret plan” until he succeeded.

      Many things have happened since Muck took over some of which he did not anticpate. I am sure he expected problems he would not anticipate.

      Musk did not take over twitter betting on some secret plan.
      He took over twitter betting on his own innate ability to solve problems and to hire others who are exceptionally good at solving problems.

      This is something you do not understand.

      Some people are better at this than others – but this is the norm.

      I do not beleive that Either Republicans or democrats are conspiring broadly in some grand plan.

      I do beleive both are working individually and in groups to advance portions of their parties and personal agendas that appeal to them.

      I do not beleive as an example that there is a smoking gun meeting were NARA, DOJ, FBI and the WH sat down and conspired to “get Trump”.
      They do not need to “organize” a conspiacy – each share that goal independently and with little coordination are capable of advancing it.

      I do not as an example beleive that Marc Elias’s war on election integrity was for the purpose of enabling a specific fraud in a specific state.
      All that was necescary was for Elias to beleive it would benefit democrats in many ways – some legal some not.
      His actions were necescary for fraud, but he did not conspire.

      This BTW is the norm.
      Biden made many poor policy choices that ultimately resulted in Putin invaking Ukraine.
      Biden has strong ties to Putin and Russian oligarchs – Unlike Trump.
      It is possible that Biden deliberately chose to constrain US energy to benefit Russia and Russian Oligarchs.
      Or more likely that there were many reasons he wanted to do so – Russia being only one.
      I do not beleive he intended to empower Russia to invade Ukraine. Or that he conspired to do so.
      That was just the result – one foreseable to many.
      And more easily foreseable with that Biden undermined global security as well as US national security.

    3. I can assure you that Musk’s plan is not to turn Twitter into a right wing blog.
      There is no profit in that. Musk is not the idiot you are.
      One of the reasons Musk beleived Twitter was worth acquiring was because it was converting itself into a left wing nut silo.
      That means it was actively driving away half its potential market.

      I can pretty much guarantee that Musks goal is a larger twitter – not a smaller one.
      I would note that twitters measured active users is up 20% since the takeover.

    4. Most twitter subscribers seem to want to throw 240 character hand grenades at each other.

      Twitter is not all that different from the comments section of this blog except that there are more people and the most popular ones are more multimedia savy.

      Regardless, it is self evident that you are not here for facts. Why would you think people on Twitter are ?

      Until recently Twitter has worked tirelessly to actively supress facts.

      Recently Musk brutally fact checked Elizabeth Warren.

      I personally think it is unwise for him to do so. I think if Musk wants to own Twitter, then he needs to SELF limit his own tweets to those about Twitter and where it is going.

      That if he want to participate – expressing his own political preferences, he should do so from a pseudonym and that he shoudl very carefully protect the fact that account is his.

      Then he shoudl eliminate all political censorship on Twitter.
      Eliminate all fact checking – users will do that on their own, Twitter should not put an institutional stamp of approval on or participate in fact checking.

      He should then have VERY SPECIFIC black and white rules for conduct, and they should be enforced algorithmically – not by people.
      Further the consequences should NOT be draconian – but they should be OPEN.

      And I think he should give subscribers more fine grained ability to curate their own feed.

      If you do not want to view left wing nut posts or right wing nut posts – rather than driving those you disagree with off twitter,
      YOU should be able to restrict them from your feed.
      And that ability shoudl go beyond politics.

      Give individual users the ability to curate their own feed if they want to NOT currate the feed of others.

      Twitter will have the largest userbase if everyone is welcome, but we do not all need to be inflected to our crazy neighbors dirty laundry.

      I think Musk should allow ALL legal content on Twitter.
      While allowing users to preclude content types that offend them.

      Truth Social as an example has made a brand of “family safe” content.
      I think Twitter users should have that as an option.

      If you want posts about drag queens and sex change surgery – you should be able to get that.
      But parents should also be able to restrict their kids (or their own) accounts to avoid things that are distatesful to them.

      IO am using a single exmaple – but I mean to apply this broadly.

      Musk shoudl find the way to make twitter all things to all people.
      With each person having control of their own twitter experience.
      I can think of many ways to do that.
      One of the easiest is algorithmically.

    5. Philanthropy is one of the worst things Musk could do with his money.

      As I have noted repeatedly – Steve Jobs has done far far far more good in the world than Mother Thereasa.
      The best thing Musk can do for the world is to keep doing what he is good at – we all benefit.

      Jobs tried charity – the results were disaster. He went back to what he was good at before he died.

      Gates has been huge in charity – and most of it has been a massive waste of money.
      It would have been far better spent on a new business.

      Free markets – not charity have doubled the standard of living of the entire world in the past 40 years – as the population doubled.
      It has doubled to amount of food available for each person.

      We may see poverty and starvation shortly – because Biden has botched foreign policy.

    6. “Jonathan: While “free speech” is being protected at Auburn the same thing is not happening over at Musk’s Twitter.”

      How to handle such junk.
      Read the first sentence, Laugh. Skip to the next post.

    7. “I think Musk’s plan is to turn Twitter into a right-wing blog spewing out disinformation and conspiracy theories 24/7.”

      Me thinks it is in that sentence your concern actually exists.

  2. Criticism from professors of academic bias in favor of student-athletes should certainly be protected speech. What should not be protected within a university are athletes from the consequences of their academic poor performance.

  3. Prof. Michael Stern named five Auburn University officials: President Jay Gogue; former President Steven Leath; former Provost William Hardgrave; former Provost Timothy R. Boosinger; and former Dean of the College of Liberal Arts Joseph Aistrup.
    Sounds like he was dealing with a couple of snakes.

  4. Jonathan: So Prof. Stern is awarded punitive damages because Auburn violated his “free speech” rights. I was drawn to Stern’s complaint that “the College of Business Administration sold out to the Koch Foundation and engaged in rigged hiring in exchange for money”. Interesting reference because for a long time the Koch Bros have tried to influence university business curriculum in exchange for large grants or endowing chairs. The Kochs want business school curriculums to reflect only their own “capitalist model”. So they have been endowing chairs but with strings attached. Koch gets to pick the candidate for a business school chair. Interference with the right of universities to make such decisions independently? Absolutely. But university administrations are on the horns of a dilemma. They need outside donations to pursue and expand academic programs. So in steps the Koch Foundation. Is this is what Stern is complaining about? I suspect it is. Prairie Rose, are you paying attention?

    1. “The Kochs want business school curriculums to reflect only their own “capitalist model”

      Perhaps the Koch’s are more intelligent than you and wish business students to be trained in business rather than transgenderism.

      Why are these people successful and the complainers not? They know how to focus their attention.

    2. Yes, people have given money to colleges an universities in return for a voice in what is being taught – What is new ?

      I find it odd that left wing nuts like you paint as nefarious the directed altruism of those you hate while praising the same action by those you love.

      SBF gave 40M to democrats to engaged in massive ballot harvesting in 2022 – Ballot harvesting is fraud in all states except California.
      And that 40M was stolen.

      Not hearing anything from you on that ?

      Yes, the Koch’s are giving money to business schools in the hopes they will actually teach the Business skills necescary to …. run businsses.
      Otherwise we end up with more fraudsters like SBF.

      Offering people money for something in return is called free exchange.
      It is how the world actually works.

      Colleges can take the money in return for what the Koch’s asked, or not. There is no coercion, no loss of rights.
      You seem to think that the colleges are entitled to money without strings.
      Regardless, they have the FREEDOM to say no, and do as they please.
      Offering people money in return for something is not interferance, it is free exchange. It is trading value for value.

      I would also suggest that you might ponder – who is it that is likely to better know what business schools should teach
      Some academics whose most significant business activity is their home mortgage or people who have run multibillion dollar businesses ?

      Regardless of Stern’s remarks about the Koch’s his attack on the free ride for football players seems to fit well with the Koch’s.

      I would note – Stern can criticize Auburn for accepting Koch money.
      And the Kock’s can give the money. And they can dictate hiring and promotions in return for the money.
      Both are constitutional, legal and moral.

      I would love to know what you and stern think “rigged hiring” is.

      If I say “I will give you $40M, but you must hire my son” – that is perfectly legitimate, take the money, hire the son, and use the rest to hire others
      Or do not take the money and do not hire anyone.

      You left wing nuts do not like not controlling everything.

    3. The Kochs want business school curriculums to reflect only their own “capitalist model”

      vs the socialist model? I fail to see the relevence here. You goal must be to sound scary…but, not even close to the target.

  5. Did the Deep Deep State “Swamp” superRINO “Bumpkin From Bakersfield,” Kevin McCarthy, open impeachment proceedings, starting with Merrick Garland and Christopher Wray yet?

    1. $645K settlement will give Auburn any pause.

      Hell no. they’ll just charge the students more, so they borrow more, so it takes longer for graduates to participate in the economy. All is good.

  6. (OT)

    Garland just announced a Special Counsel to investigate Trump (again). But not one for HB. Doesn’t that beat all.

    I hear that Peter Strzok is looking for a job, and that Steele has a dossier (a fresh one). Perhaps the FBI’s DC office can lend their “investigation” skills.

    Anyone who swallows this garbage is far beyond being s dupe.

    1. There is no basis for a Special Counsel to investigate Trump.
      He is not president. There is no conflict of interests between him and the justice department or FBI.

      SC’s are not for ordinary investigations.
      They are ONLY for investigations that the DOJ/FBI can not do because they are conflicted.
      They are for when Govenrment is investigating itself.

  7. Seems like a new cottage industry for lawyers with better chances of a payout than chasing ambulances.

    Perhaps the Good Professor might consider a far more lucrative field of Law than he enjoys currently!

    That would be one way to prove where he stands on Free Speech and take money from those who punish those who speak out.

  8. >”…Prof. Michael Stern, a tenured economics professor.”

    Imagine what would have happen to Prof Stern if he hadn’t been tenured with AU. I shudder to think. Teaching for the Crimson Tide no doubt.

    *If that we all had some tenure. .. crust of bread and such.

    ‘moma may have, daddy may have, but God bless the child who’s got his own.’

  9. This is so common now it may as well be called policy. If you are sending your kids to these schools, you can pretty much count on them turning out this way at the end, and if you are giving money to your alma mater that has dived in to all of this, you are pretty much funding it at this point. The powers that be aren’t going to do a dang thing, so it’s up to us. Stop sending your kids to these schools and stop funding your complicit alma mater. Nothing else is going to make a dent, and you had better believe that the professors and faculty created through this system will be even worse than recent examples. A college degree in the 21st century is basically a receipt. Money changed hands, and that’s about it. Thank you Obama, for saying that a college degree was the modern day equivalent of a high school diploma. i could take that seriously if modern college seniors could read and write or name all 50 states.

    Consider the trades or actual business skills for your kids, because this is far beyond absurd. So much for the Beat Generation, so much for the hippies. Turns out it’s easy to be brave when nothing is on the line. I hope the courts continue to kick the crap out of these institutions and many a large settlement is paid out. Even if Elon Musk is a bit of a nutter, he has the right idea for hiring in general. Fire them. Fire ALL of them. It’s what Steve jobs did, too. In fact, he was notorious for it.

    1. My grandkids are young, 2 and 5. If in about 12 or 13 yes this is still going on I’m going to push for them to become plumbers.

    2. This was common at a Texas A&M as well – core classes had hidden section numbers that only athletes and their friends knew about. If you could guess the hidden section number when registering, you were guaranteed an ‘Easy A’

    3. James,
      Well said.
      With more and more colleges demanding, mandating DEI courses as graduating requirements the value of that degree continues to fall.
      Harvard or Yale no longer maintain that allure of excellence.

  10. Good one, but the printers won’t like the length! Try an acronym, SHTI SIC.
    Or, for Kosher higher ed, students can protest the SHTIC

  11. Will Auburn pay up or will it join the Scofflaw League which leads off with Oberlin College that won’t
    pay the millions in damages to Gibson’s Bakery?

    1. According to several recent press reports (I know, that doesn’t mean that their info is correct), Oberlin has paid the judgement to the Gibsons. My friendly search engine was helpful.

  12. “Professor Stern went public with his view that the university was using the College of Liberal Arts’ Public Administration major to offer athletes an easy education . . .”

    I’m used to academics denying reality, but this is bizarre. It has been well-known since forever that certain departments (e.g., Sociology) and certain courses (e.g., The Sociology of Sports) are the go-to places for athletes. And the reason has been known since forever. It’s not even an open secret. it’s just “open.” Those departments and courses are *easier* and provide “accomodations” for athletes. They are the means for satisfying the “student” part of student-athletes.

    I’m not even criticizing those departments/courses. What I’m condemning is the universities who evade their existence, when it’s so damn obvious that they do exist.

  13. I feel like the fascists attacking free speech are winning.

    We celebrate these rare victories, but for every brave person who speaks up, thousands self censor to avoid trouble.

    People like Hillary attack the system with no consequences (I know, free speech), but cause immeasurable harm to the country.

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