In my new book, The Indispensable Right: Free Speech in an Age of Rage, and a recent academic work, I discuss a new rationale being used by administrators to punish free speech: threatening academic collegiality or campus tranquility. I was discussing the Fourth Circuit case of Porter v. Board of Trustees of North Carolina State University, which was unfortunately not reviewed by the Supreme Court. Now, as feared, it is being replicated by the Sixth Circuit in Gruber v. Tenn. Tech. Bd. of Trustees.  The result is a new and serious threat to free speech in higher education to curtail speech where it would be “likely to cause disruption” or undermine the “fostering [of] a collegial educational environment.”

The Porter case involved the targeting of a conservative faculty member who opposed diversity views. Given the purging of conservative professors from faculties and the intolerance on our campuses, the use of collegiality to justify disciplinary action is likely to fall more heavily on the dwindling number of conservatives.

However, Gruber involved professors who spoke out against a conservative colleague. As previously addressed by Keith Whittington, the case involved Professor Andrew Donadio, who serves as the faculty advisor for the local chapter of Turning Point USA at Tennessee Tech University.

Donadio was attacked by Professor Julia Gruber and Instructor Andrew Smith who hold strikingly anti-free speech views that are evident in the flyers that they put up around campus denouncing the “hate and hypocrisy” of “Professor Donadio and Turning Point USA.” In addition to saying that his views are “not welcome at Tennessee Tech,” they declared that there should be “no unity with racists” and that “hate speech is not free speech.”

Gruber and Smith are only the latest examples of academics who reject free speech rights for others, but still demand that their own views be protected. Fortunately for them, the free speech community supports free speech regardless of its inherent merits or the hypocrisy of speakers.

Provost Lori Bruce disciplined Gruber and Smith under Policy 600, requiring faculty members “to conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards.”

As with Porter, the use of a lack of collegiality has long been used against those with unpopular views. I previously wrote:

“The lack of collegiality and professionalism has long been shibboleth for those have sought to block minorities and women from appointments. Many objected to the claims of ‘lack of collegiality’ and bad ‘temperament’ raised against figures like Justice Sotomayor when she was nominated for the Court. Indeed, the American Association of University Professors has stressed that collegiality is often a coded or biased basis for discrimination. It cautioned against this use since, “[i]n the heat of making important academic decisions regarding hiring, promotion, and tenure, it would be easy to confuse collegiality with the expectation that a faculty member display ‘enthusiasm,’ or evince ‘a constructive attitude’ that ‘will foster harmony.’” Indeed, collegiality is commonly defined as being “cooperative,” a virtue that is hard to display when you are a dissenting voice on a matter of intense and passionate debate with your colleagues.”

Nevertheless, Sixth Circuit Judges Richard Griffin, Helene White, and Eric Murphy upheld the lower court decision supporting the university:

When deciding whether the plaintiff engaged in protected activity, we first determine whether the action constitutes speech on a matter of public concern, and if it does, we apply the “Pickering balancing test” to determine whether the plaintiff’s interest in commenting outweighs the defendant’s interest as an employer in promoting the efficiency of the public services it performs through its employees. The balancing test considers the manner, time, and place of the expressive action, and the pertinent considerations include whether the action (1) impairs discipline by superiors or harmony among coworkers, (2) negatively affects close working relationships for which personal loyalty and confidence are necessary, (3) impedes performance of the speaker’s duties or interferes with the employer’s regular operations, and (4) undermines the employer’s mission….

TTU does not dispute that the district court properly concluded that the plaintiffs’ speech was a matter of public concern. Even so, as the district also properly concluded, the plaintiffs’ distribution of the flyers was not protected speech because their speech interest was outweighed by TTU’s interest in preventing a disruption to its pedagogical and collegial environment….

At the outset, the “manner” of the plaintiffs’ speech decreased its expressive value and increased TTU’s operational interests. Plaintiffs did not speak in the classroom or through scholarship, where professors’ “rights to academic freedom and freedom of expression are paramount.”

Nor is this a simple case of one professor raising a race-related issue with another or expressing disagreement with a group’s ideology, perhaps one-on-one or in a more private setting. Instead, the plaintiffs posted flyers in an academic building at a time they knew students would be on campus for class and posted an additional flyer the next day. Those flyers were highly likely to cause disruption, and they did so in several ways.

Specifically, the flyers identified Donadio as a “racist college professor” and branded members of Turning Point USA as “racist students.” They stated in bold text that the professor and group’s “hate & hypocrisy are not welcome at Tennessee Tech.” The dissemination of “disrespectful, demeaning, insulting, and rude” messages targeting a colleague and students—regardless of whether some accusations may have had basis in fact—to the entire university community undoubtably threatened to disrupt TTU’s learning environment and academic mission.

For one, flyers that publicly attack a colleague as racist and threaten that the colleague is on the anonymous author’s “list” certainly “impairs … harmony among co-workers.” {Plaintiffs protest that they did not interact with Donadio professionally, so there was no harmony to impair. But even if the professors did not work closely together, they were nonetheless colleagues on TTU’s faculty, and it was not unreasonable for Bruce to conclude that on-campus and public accusations of racism—even between colleagues who did not work together—could cause disruption of the university’s operations.}

Perhaps more critically, by attacking students, the flyers threatened the core of TTU’s educational “mission” and undermined the plaintiffs’ ability to perform their teaching “duties.” The flyers insinuated that, like Donadio, all students who were members of Turning Point USA were racist. The accusations harmed these students’ educations.

For example, one Turning Point USA member, having been deemed a racist, missed class because of the fallout. In addition, the accusations affected the plaintiffs’ effectiveness in the classroom. Students in the club, or those considering joining the club, who were taking courses with Gruber and Smith might reasonably fear the potential treatment they would receive in class due to differing political views. This case is thus factually distinguishable from cases like Pickering, where a teacher was disciplined for writing a letter to a local newspaper criticizing the school district that was “in no way directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work as a teacher.” And most basically, TTU has ‘an interest in fostering a collegial educational environment.’ Permitting professors to circulate flyers with personal attacks on colleagues and students undoubtably undermines that interest.

To be sure, the flyers were quickly collected and affected only a handful of students and professors. But evidence of widespread disruption is not necessary: it was reasonable for Bruce to believe that, had the flyers remained posted, they could have caused far greater disruption.

Lastly, the “place” of the plaintiffs’ speech undermines their interests even further. Even if they did not undertake this speech pursuant to their official duties, they also did not engage in it away from campus as private citizens. Rather than make their claims on their personal Facebook pages or in a local newspaper, they chose to use TTU’s own property as the billboard for their speech. But public employers have greater interest in regulating speech “at the office” (or here on campus) than they do away from the public employers’ property. Indeed, the conclusion that the First Amendment protected the plaintiffs’ speech would mean that TTU remained powerless to remove the flyers off of its property. So this case raises no concern that TTU sought to “leverage” its employment relationship with the plaintiffs to regulate their speech “outside” the context of its university functions.

All told, the Pickering balancing test weighs against the plaintiffs’ speech being protected. The flyers, which attacked a professor and student organization and stated that they were not welcome on campus, created a reasonable threat of disrupting TTU’s academic mission and is the type of speech that a learning institution has a strong interest in preventing. Under the Pickering balancing test, TTU’s interest in preventing a potential disruption to its pedagogical and collegial environment outweighed the plaintiffs’ interest in distributing the flyers. Thus, the plaintiffs’ speech was not protected, foreclosing their First Amendment retaliation claim.

The allowance for censorship and sanctions for speech “likely to cause disruption” would gut free speech protections on campus. The court suggests that the ability of the university to crack down on the speech was magnified by the fact that others might be particularly interested in their views or exposed to them. It is enough that it threatened the tranquility of campus and the collegiality of the faculty.

This week we discussed an analogous position at Harvard where Lawrence Bobo, the Dean of Social Science, rejected views of free speech as a “blank check” and said that criticizing university leaders like himself or school policies are now viewed as “outside the bounds of acceptable professional conduct.”

The refusal of the Court to take the Porter decision was crushing for many of us in the free speech community and academia. Hopefully, Gruber will receive a more favorable review in light of the expanding threat to free speech to “foster a collegial educational environment.”