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.