The United States Court of Appeals for the Fourth Circuit has delivered a body blow to free speech as well as academic freedom in a ruling against a statistics professor at North Carolina State University. Professor Stephen Porter objected to what he considered the lower standards used by his school to hire minority faculty. The school declared such views as insufficiently “collegial” and retaliated against him. Now a divided panel has ruled that such views are not protected by the First Amendment — potentially opening up even greater retaliation against conservative, libertarian, and dissenting faculty. Rather than punish them for failing to echo the views of the schools, they can now be fired for their lack of collegiality in speaking against such policies and hires.
Just when you thought things could not get worse for the dwindling number of dissenting faculty, the Fourth Circuit just found a way. If this decision stands, “uncollegiality” will become the new code for retaliating against dissenters on faculties. Indeed, likability and collegiality were long denounced as excuses for rejecting (or poorly evaluating) female and minority candidates.
Judge Stephanie Thacker (right) wrote the opinion with Judge Andrew Wynn over the dissent of Judge Julius Richardson.
Thacker’s ruling in Porter v. Board of Trustees of North Carolina State University would effectively gut both free speech and academic freedom protections for dissenting faculty. It is not just chilling, it is glacial in its implications for higher education.
Porter is a tenured statistics professor in the college of education. It is an area that has been the focus of much controversy in recent years, including columns on this blog. We previously discussed how academics like University of Rhode Island Professor and Director of Graduate Studies of History Erik Loomis denounce statistics and science as “inherently racist.” Others have agreed with that view, including denouncing math as racist or a “tool of whiteness.” There are also calls for the “decolonization” of math as a field. Some like Luis Leyva, associate professor of mathematics education at Vanderbilt University has declared all math to be racist and that universities need to “reimagine” and structurally “disrupt” math departments.
Porter clearly does not agree with that viewpoint. He was opposed to what he viewed as the school elevating a social agenda above good scholarship. He specifically objected to what he viewed as a lowering of standards to hire minority faculty. He stated so freely to his colleagues in emails as well as at meetings. He also wrote a column expressing those concerns.
Thacker and Wynn dismissed his arguments that he was protected in expressing such viewpoints. The opinion is an exercise in willful blindness. The judges simply say that he was not punished for his viewpoint but his lack of collegiality. In doing so, they set aside the column which appears to have triggered many of his colleagues. Instead, they declare that this was speech tied to his job and does not relate to his research and teaching. In that way, the court avoids the necessity of applying the balancing test under Pickering v. Board of Education. Instead, the panel applied the more lenient standard under Garcetti v. Ceballos.
The panel decision runs against the grain of various prior decisions of the Supreme Court. For example, in Rankin v. McPherson, 483 U.S. 378, 387 (1987), the Court declared that a government employee was protected in expressing a highly offensive statement about the attempted assassination of Ronald Reagan. The Court held that “the inappropriate…character of a statement is irrelevant to the question whether it deals with a matter of public concern.”
Judge Thacker simply ignored elements of the record to support the university’s actions against this dissenting colleague. The dismissal of the impact of the column was the most telling.
Judge Richardson stated in his dissent:
“Porter published his blog post in September. Pasque suggested that he leave his program area at the October faculty meeting, and formally threatened to remove him in her November letter. Finally, she followed through on her threat in July, when she gave Porter his annual evaluation.”
If this decision is not reversed, things are likely to get far worse (if possible) for conservative, libertarian and contrarian faculty members. Rather than investigate, sanction, or fire faculty for their viewpoints, schools will now simply declare them uncollegial in raising such viewpoints. School or board officials like John Corkins will no longer have to say that dissenting faculty should be “taken to the slaughterhouse” for their anti-diversity views. They can be “culled” on collegiality grounds.
We have already seen a purging of faculties of conservative and libertarian colleagues. We previously discussed how surveys at universities show a virtual purging of conservative and Republican faculty members. For example, last year, the Harvard Crimson noted that the university had virtually eliminated Republicans from most departments but that the lack of diversity was not a problem. Now, a new survey conducted by the Harvard Crimson shows that more than three-quarters of Harvard Arts and Sciences and School of Engineering and Applied Sciences faculty respondents identify as “liberal” or “very liberal.” Only 2.5% identified as “conservative,” and only 0.4% as “very conservative.”
Likewise, a study by Georgetown University’s Kevin Tobia and MIT’s Eric Martinez found that only nine percent of law school professors identify as conservative at the top 50 law schools. Notably, a 2017 study found 15 percent of faculties were conservative.
Compare that to a recent Gallup poll stating, “roughly equal proportions of U.S. adults identified as conservative (36%) and moderate (35%) in Gallup polling throughout 2022, while about a quarter identified as liberal (26%).”
Once “uncollegial” conservatives are eliminated, that number could reach a statistical vanishing point for Professor Porter and the dwindling number of dissenters and nonconformists in higher education.
Here is the opinion: Porter v. Board of Trustees of University of North Carolina State University.
Collegiality is too vague to be a standard in such decision-making. I hope this decision is overturned.
If Turley were to adopt such a value for those permitted on the blog, one could accuse everyone of a lack of collegiality and ban them from the blog.
Will Judge Richardsom be removed from the bench for being uncollegial?
🙂 I wonder if that crossed his mind?
S. Meyer: Excellent comment. But seems we are losing this broad span of views in our institutes of higher learning.
Thank you, Lin.
I find that Mr. Turley’s blog is far more edifying than any college course offered these days.
Good one!
The Greatest of Great Ones writes, “Collegiality is too vague to be a standard in such decision-making.”
That’s the rub, Alan. It’s malignant and calculated mendacity.
Wait. That’s Allen “The Absurd” to a tee.
_________________________________
“Because the Constitution does not prohibit secession, the Constitution prohibits secession.”
– Allen “The Absurd”
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He cites no prohibition of secession in the Constitution as he claims that secession is unconstitutional. He ignores the absence of a prohibition of secession. He ignores the 9th Amendment admonition that the enumeration of certain rights does not preclude others not mentioned. He ignores the 10th Amendment position that if a power (i.e. secession) is not delegated to the U.S., nor prohibited to States, that power is reserved to the States. Secession is a constitutional right, freedom, privilege or power reserved to the States.
________________________________________________________________________________________________________________________________________
9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
______________________________________________________________________________________________________
10 Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
George, lose weight or get a larger pair of underpants. They are strangling you and your ability to think.
Learn from experience what happens when you make impossible assumptions.
I’d be surprised if the Fourth Circuit didn’t en banc this case. Hopefully the professor will request that.
May it make a lightening speed trip through the appeals process! I would very much like to see some alarm amongst judges who understand and value the Constitution and show evidence of such in the speed and strength by which they respond.
Secondly, I would like to see a commensurate response by the House if Representatives in the appropriations process and by the Republicans in a robust counteroffensive to the Democrats move to undermine SCOTUS.
Our Republic hangs in the balance and waiting for some magical electoral process to fix it is purely delusional at this point.
What is the phenomenon which causes those with the ability to take meaningful action against these Marxist forces to be so lethargic in recognizing true nature of the threat?
“I would like to see a commensurate response by the House if Representatives . . .”
Or by the NC legislature, with the rallying cry: Defund the propagandists!
I know that Article III Judges are lifetime appointments, but doesn’t blatantly refusing to recognize the 1st Amendment and free speech constitute not following the ethical and legals standards of their office and is sufficient grounds for their impeachment ? Sure seems like it should. And if their impeachment were successful, it might send a strong message to all of the other Article III judges to follow the law. Just sayin……
Skyraider – That would not qualify a high crime or misdemeanor, the way that phrase has been interpreted. But it would also be a questionable strategy since it would open the floodgates to a Dem-controlled House impeaching any conservative judge or justice based on their rulings. History suggests Dems would be more aggressive than the GOP in putting such a tactic to use.
Collegiality has long been a convenient excuse to punish faculty who are ‘unpopular’ with those who wield power in the university.
It is an odd charge because while faculty work in the same department and and have offices near to one another, they each have a speciality, they design and teach their own classes (save in rare cases when they ‘team-teach,’ which often means they teach every other class), they decide which grades to assign, and they publish independent of other faculty (save in cases where they collaborate). In other words, they are effectively autonomous (or independent) scholars who teach classes in a subject or subjects in their area/s of expertise (save rare cases where a ‘survey’ or ‘introduction’ subject is required). That means they can do not have to speak with each other except during faculty meetings or, if they chose to eat together, in the cafeteria.
There has been a tendency over the past thirty years or so to recast faculty as members of a team, to the detriment of the intellectual autonomy of individual faculty members. There has also been a trend to multiply administrative positions while eliminating full-time, tenured faculty positions with temporary positions or part-time positions.
The losers have been those who thought obtaining a Ph.D. would open career opportunities and the students, who are now rarely taught by full professors and instead get grad students and part-time professors who often do not even have an office and rarely have a stake in the place/s at which they teach.
The winners have been the administrators.
(This is first draft, so apologies for any typos.)
In order to obtain a U.S. Supreme Court ruling protecting freedom of speech (final ruling of “constitutionality” that governs the entire United States), sometimes lower courts rule this way.
If the lower court had ruled otherwise, that lower court ruling would only govern a district or region of the United States, not the entire United States from a future U.S. Supreme Court ruling.
Since the federal 4th Circuit Court of Appeals is historically conservative in it’s ruling, this might be what’s happening here. Prior U.S. Supreme Court rulings already make this ruling unlikely to stand.
Bottom line: Most voters of both parties will probably be happy when the U.S. Supreme Court overturns this ruling. This is probably just part of the Judicial Branch “sausage-making” – nothing to worry about!
Torture Treaty – the Fourth Circuit used to be conservative, now it has moved far to the left, and the two judges in the majority on this case are both Obama appointees. What you describe has been happening – in effect – in the 2nd Amendment arena. But it’s not by the design of the lower court judges. Judges don’t rule one way or another on the strategic basis of having SCOTUS overturn them. First, SCOTUS grants so few cert petitions, even in cases where there’s a circuit split, that ruling in a certain way on anticipation that SCOTUS would overrule you doesn’t make sense. Second, judges hate to be overruled.
Again, I find myself agreeing with you!
This ruling proves that all Democrats, even judges, are in the censorship game.
Shame what’s happened to the Fourth Circuit. It used to be one of the most sensible and respected federal circuit courts, the home of the likes of Judges Michael Luttig and Harvey Wilkinson. Now it has been corrupted by leftist judges who elevate their ideology over the Constitution.
I suppose it’s no surprise that the two judges who voted in this case to essentially eliminate the First Amendment are both Obama judges. As Dennis Prager says – and echoed by cionnath below – the Left ruins everything it touches.
Irrefutable proof that the “progressives” hate and fear diversity of opinion. They are as phony as a $3 bill.
To anticipate a Leftist talking point:
This *is* an issue of free speech because NC State is a government school.
“. . . ‘uncollegiality’ will become the new code for retaliating against dissenters on faculties.” (JT)
“Become?”
For decades, that has been a rationalization for punishing academics who disagree with activist faculty. It’s their version of: His ideas make me feel uncomfortable.
I laughed when I got to the part about “qualified immunity” for those being sued. I thought that only applied to police who break the law. Seriously, the professor claimed he was smarter than everyone else and claimed at least one co-worker was unqualifed to be there. He must have been a joy to work with.
Didn’t you learn in school that ad hominem abusive attacks are among the weakest arguments one can make?
https://www.logicallyfallacious.com/logicalfallacies/Ad-Hominem-Abusive
Everything in my “abusive attack” came directly from the complaint. I was amused about qualified immunity applying in this manner when most of the people here are all for it when it applies to bad police officers. The “appelland” stopped going to certain meetings because nobody was as smart as he was and he did personally attack the qualifications of one or more of his peers. If the “attack” you refer to is me saying he must have been a joy to work with, I hardly find that abusive and certainly think it true. Be specific as to what you believe is abusive. Did you read the actual ruling?
enigmainblackcom – it would have helped if you had read the page I linked to. “Ad hominem abusive” is a term in logic that means attacking the speaker as to his personal characteristics rather than his arguments. “Attacking” is a term in debate that means arguing against. You’re trying to overlay the colloquial meaning of “abusive” and “attack” into a specific context where those meanings don’t apply.
For example: Alice, an economist, says a flat tax would create a better economy than a graduated tax. Bob, another economist, argues against Alice by claiming she committed adultery.
See how that works? Argue against someone’s position in a debate by claiming there is something wrong with the speaker rather than engaging with the speaker’s ideas.
I read the page you linked to and understand what an as hominem argument is. My comments were all linked to parts of the ruling with the exception of syggesting he was hard to get along with, hardly an attack of any kind.
Didn’t you learn in school that ad hominem abusive attacks are among the weakest arguments one can make?
It is easier for Enigma, than, say, getting outside of his mancave beyond the reaches of his low traffic blog, as opposed to walking the talk, like most Americans, e.g. conservatives and leftists.
My comment applies not just to Enigma but to all those who complain hourly about the decline of our nation yet do nothing locally to reverse the decline. Western Civilization had a long successful run, imperfect as it was, but started because of Christendom replacing the collapse of the Roman Empire, 5th century AD. Yet, here we are repeating the demise of the Roman Empire.
There are so many more important crisis affecting our nation than a statistics professor lamenting his employer’s HR practices, as if it were his place to advise them. That he got sacked was predictable just like anyone who has had a stint in corporate America.
New study was published in JAMA yesterday and it is alarming:
Trends in Opioid Toxicity–Related Deaths in the US Before and After the Start of the COVID-19 Pandemic, 2011-2021
In this cross-sectional study, deaths due to opioid toxicity increased substantially during the COVID-19 pandemic. By 2021, 1 of every 22 deaths in the US was attributable to unintentional opioid toxicity, underscoring the urgent need to support people at risk of substance-related harm, particularly men, younger adults, and adolescents.
JAMA Netw Open. 2023;6(7):e2322303. doi:10.1001/jamanetworkopen.2023.22303
NB: the trends have less to do with the opioids, as leftists will argue just like with guns, but rather broken families, alienation (as COVID lockdowns have shown), depression and hopelessness, particularly amongst males. For a country that basks in material goods, we clearly are an interiorly poor population.
The largest demographic group affected is blacks. It isn’t because of “racism” or “whitey” as Ketanji Jackson might argue, but rather what Daniel Moynihan (working for LBJ) and Thomas Sowell argued back in the 1960s: the broken black family.
Whites are no better as they too have had their extended family networks and nuclear families implode, e.g. “conservatives” Marjorie Taylor Greene, Lauren Boebert, Steven Crowder, Bill OReily, FOX News many lawsuits for harassment by former employees, etc
The Opioid Epidemic: a Crisis Disproportionately Impacting Black Americans and Urban Communities
Ethnicity-wise, Black OOD rates exceeded White rates by four- to six-fold, with fentanyl and heroin having a disproportionate impact on Black opioid deaths. This disparity was aggravated by its intersection with the COVID-19 pandemic in 2020.
J Racial Ethn Health Disparities. 2023 Aug;10(4):2039-2053. doi: 10.1007/s40615-022-01384-6.
TL;DR: The Porter v. Board of Trustees of University of North Carolina State University decision by the 4th Circuit is a distraction from far more pressing problems. Would that all Americans took steps locally and got to know face to face those in urgent need.
Estovir, I’m a statistician but merely a BA practitioner. You suggest that Turley and his blog readers are out of touch and lack compassion; they should be concerned about increasing death rates due to opiates rather than the mere firing of some insufficiently collegial statistics professor. Who teaches how to research, analyze, then publish the scholarly journal articles you cited? Statisticians. If statistics and probability professors are of diminished competence due to hiring and tenure decisions based on racial preference and other non-meritocratic considerations, no one will be able to do your studies.
Professor Turley inline links to examples of the academia’s ideological rot. It spread to industry, public health, etc. I cancelled my memberships in the American Statistical Association and Royal Statistical Society in 2018, after reading one too many articles about careers of and for transgender quantitative professionals. In 2019, US and UK-based statistics societies (which are trusted authorities in the field, worldwide) began an initiative to rename every formula, method of analysis, and significance test because they were developed by white men of Norwegian, Polish, or British ancestry. Indian and northeast Asian statisticians didn’t want this anymore than I did. Doesn’t matter: Pearson, Neyman, Fischer, Galton, and Cohen are blighted by the original sin of white supremacy (according to Robin D’Angelo and DEI trainers), so their names and work must be reassessed by BIPOC statisticians and reimagined through the lens of alternative, anti-racist ways of knowing.
Thomas Sowell is a solid. I thought Daniel Patrick Moynihan was too. You mentioned both. Last week, I finally read DPM’s 1965 study. Yes, disintegration of the 2-parent black family negatively impacted the futures of young black men and often led to recurring poverty. But DPM’s paper has shockingly poor scholarship! LBJ deserved a better advisor for his Great Society. DPM demanded equality of opportunity AND outcome. DPM said,
Really? He interleaves cherry-picked data points with unsupported cringe, e.g. antebellum slavery’s similarity to Nazi concentration camp imprisonment of Jews:
I made pizza the other day and had to do a bit of mathematical calculation to get the correct hydration. Fortunately, I had real math in school, not “woke” math. The pizza turned out great.
As “progressives” warn us about authoritarianism and fascism, there has been an inexorable march towards authoritarian though control across the entire Western world.
The vilification and even criminalization of thought seems unstoppable. It’s as if these people took 1984 as a handbook not a warning.
Prof. Turley doesn’t mention it, but I think we have to start acknowledging the fact that, when judges trip over themselves declaring a ruling that every lay person with a brain sees is illegal or unconstitutional, their partisanship needs to be questioned. Judge Stephanie Thacker and Judge Andrew Wynn were both appointed by Obama. Judge Julius Richardson was a Trump appointee. This is a clear-cut case of free speech. The two liberals made an abomination of the First Amendment.
I don’t think the article mentions it (I sort of speed read the article), but the appellate ruling was two Obama judges vs one dissenting Trump judge. Yet another example of Trump’s presidency being underrated by his critics, as his appointments are standouts on the appellate bench.
Stop calling them liberal, they are NOT! They are leftist progressives which is Marxist in disguise! They are Authoritarian, Totalitarian, Fascist! The next step on their Evil agenda, won’t be to simply remove a person from any position, it’ll be outright removal from life.
Here’s what they really are: Romans 1 : 28-31
28 Furthermore, just as they did not think it worthwhile to retain the knowledge of God, so God gave them over to a depraved mind, so that they do what ought not to be done. 29 They have become filled with every kind of wickedness, evil, greed and depravity. They are full of envy, murder, strife, deceit and malice. They are gossips, 30 slanderers, God-haters, insolent, arrogant and boastful; they invent ways of doing evil; they disobey their parents; 31 they have no understanding, no fidelity, no love, no mercy.
Ideological capture. The Left invariably corrupts and destroys whatever it infects. Even if the SCOTUS corrects this, the battle has already been lost. The hive Marxist mentality has prevailed. It is time to abandon these Universities altogether. The costs increase while the value plummets. We must stop pretending that these once-prestigious institutions are worthy of the esteem in which they once were held. It is pointless to try to stave off the effects of the Leftist gangrene. The majority of universities are already dead, existing only as soulless zombies of their former selves. Let them rot.
I could not agree more. The only solution is to cut off the endless supply of money to these corrupt institutions, and I don’t see that happening.
Both Thacker and Wynn are Obama appointees. Judge Richardson is a Trump appointee.
This thinking helps to explain where Justice Jackson’s “math” skills emanated from. Why would the country need math, it’s not like we are in a battle with China or anything?
” it’s not like we are in a battle with China or anything?”
We fed that monster because of crony capitalism and the bought leadership of Bill Clinton, Newt Gingrich, and Joe Biden who got China into the WTO so big business could get cheap labor and could bigger themselves.
bigger themselves
I love it.
“/bigger themselves/
I love it.”
Dr. Seuss’s The Lorax reference. 🙂