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. 205, 391 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. Ceballos, 547 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 Melbourne, 731 F.3d 1161, 1168 (11th Cir. 2013), the Supreme Court in Pickering, 391 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