Sullivan taught the “Crucial Conversations” course to help train students how to communicate productively about difficult topics. Here is how the court described the background facts:
“Crucial Conversations” used a practical, action-based pedagogy. Students begin by critiquing video vignettes of bullying and eventually escalate to simulating difficult conversations themselves in one-on-one and group exercises. Some of these simulations involved mock conflict—complete with intentionally triggering, provocative, disrespectful, or shocking language. Sullivan warned his students in advance that the exercises would involve such language. The theory behind this pedagogy is that a classroom role play provides a low-stakes environment ideal for honing conversational skills.
One role play scenario cast Sullivan as Whitey Bulger (the late Boston based organized crime boss) and a student as a law enforcement officer trying to obtain Bulger’s cooperation. The purpose of this simulation was to teach students how to engage with offensive language (Bulger’s words as recited by Sullivan) while keeping the conversation on track to productive purposes (obtaining Bulger’s cooperation). During the actual simulation, quoting a real statement Bulger made to law enforcement, Sullivan said,
I don’t want to be placed in a prison cell with a bunch of [n-word]s. You make sure I’m in a place with my kind and I’ll talk about who was behind that job of killing [X].
Sullivan hoped for a student response such as,
“I understand you have strong feelings about the kind of cell mates you will be assigned to live with. We will want to listen more carefully to what matters to you as we also work with what is acceptable under prison rules and regulations.”
Sullivan performed this simulation all 49 times he taught the course, without incident for the first 48.
Sullivan taught “Crucial Conversations” for the 49th time in the Fall 2021 semester. After conducting the Whitey Bulger role play in September, a student in the course reported Sullivan for being racially insensitive and offensive. Defendant [Robert Lount, Chair of the Management and Human Resources Department at OSU] informed Sullivan on September 30 that the Business School’s HR Department required Lount to investigate Sullivan and his course…On the substance of the investigation, Sullivan pleads only one detail: a phone interview, during which Lount communicated that he understood Sullivan to be performing his duties responsibly. Despite this assurance, at some time unknown to Sullivan, Defendants (and other unknown individuals) deliberated and decided not to renew Sullivan’s contract….
The court explored whether Sullivan could shoulder the burden of establishing that (1) he engaged in protected speech; (2) Defendants took an adverse action against him; and (3) there is a causal connection between the protected speech and the adverse action.
As we have previously discussed, the threshold question turned on the standard under Pickering-Connick and whether Sullivan was speaking on “a matter of public concern.” If so, the court asks whether his interest in speaking on that matter is greater than OSU’s interest in “promoting the efficiency of the public services it performs.”
Judge Michael Watson (S.D. Ohio) wrote:
Classroom instruction generally implicates a matter of public concern “because the essence of a teacher’s role is to prepare students for their place in society as responsible citizens.” … Sullivan’s purpose, as alleged, was not just to trigger his students. He triggered them for a separate, ultimate purpose: teaching them to converse productively despite having been triggered. The context—the general mission of the course—renders that purpose plausible….
[I]n Hardy v. Jefferson Cmty. Coll. (6th Cir. 2001) …, the Sixth Circuit held that a professor’s use of the n-word implicated matters of “overwhelming” public concern. Hardy involved a community college that declined to renew an adjunct professor’s contract after he said the n-word (among other offensive words), prompting a student complaint. The adjunct uttered the offensive words during an in-class lecture on language and social constructivism, part of a course called “Introduction to Interpersonal Communication.” The lecture examined how language (like the n-word) can marginalize and oppress. …
The “academic context” here is materially on all fours with that in Hardy. As was true for the adjunct, Sullivan’s in-class use of the n-word was allegedly germane to an academic purpose. The lessons were not identical, of course. The adjunct’s lecture abstractly reflected on racially charged language, whereas Sullivan’s exercise pragmatically trained students how to respond to it. But, at bottom, both the Hardy lecture and the Sullivan exercise relate to race and power conflicts in society-matters of overwhelming public concern. By force of Hardy, Sullivan’s in-class utterance of the n-word likely implicates race relations-a quintessential matter of public concern.
Beyond just race in general, Sullivan’s speech, as alleged, also addresses the specific matter of whether using the n-word in class can have worthwhile pedagogical value. This matter is undeniably one of public concern. This debate entered the zeitgeist most prominently as grade schools considered banning classic books that contain the n-word.
The court noted that Sullivan was “taking a side” in the long-standing debate over the use of such language and “his whole ‘Crucial Conversations’ course was allegedly a monument to the view that hearing charged language in a classroom is pedagogically worth it.”
Judge Watson found that the balancing test of Pickering “favors Sullivan” and that his language falls squarely in “the robust tradition of academic freedom in our nation’s post-secondary schools.”
It is a very strong opinion supporting both free speech and academic freedom. It is also a compelling reason why Ohio State University needs to have its own “Crucial Conversation” on how it treats free speech.
The case is Sullivan v. Ohio State University.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”