The following rant is in response to a report by Eugene Volokh from this past Friday’s Washington Post: Court allows First Amendment claim based on alleged professor retaliation for paper ‘harshly critical of … lesbianism’.
In brief, the facts of the case are this: a professor assigns a paper reviewing a film on the theme of lesbianism (Desert Hearts, by Donna Deitch, 1985); the student writes an apparently offensive paper expressing opinions about the film and lesbianism (n.b. I have not seen the paper); the professor refuses to grade the paper, and instead advises the student to drop the class; the student does so, but then sues, alleging a violation of her first amendment rights. The District Court of New Mexico agrees to hear the case.
A screen shot of the court’s
opinion allowing the case to proceed.
At this point in the case, the court has stated blatantly: “The Court concludes that the allegations of Plaintiff’s FAC are sufficient to make out a plausible case that Defendants violated Plaintiff’s First Amendment rights by subjecting Plaintiff to restrictions on speech that were not reasonably related to legitimate pedagogic concerns.”
I owe notice of this interesting article to the facebook feed of Craig Martin, a professor of Religious Studies at St. Thomas Aquinas College.
Basically, Martin’s views are similar to my own: he states that he typically doesn’t “invite student opinions” but rather asks “them to think like … the scholars [he assigns].” I do the same. Perhaps we hope that this distinction will protect us from having to deal with noxious opinions that are uninformed by scholarly practices. But I’m not sure it’s entirely adequate, since sometimes our work requires us to confront students who fail to meet standards precisely by expressing opinions (that we may not have asked for) in an unscholarly (or even obnoxiously expressed) manner; and sometimes students don’t like what we do in helping them learn to think like scholars.
So we may still have to deal with students who feel that their first amendment rights are being squashed, even if we just ask them to think like the scholars we assign.
Except that we, Craig and I, actually don’t have to worry about First Amendment issues. We don’t need to worry because we are at private schools and aren’t considered government employees. State University professors, however, they are on the hook here. Do they have special responsibilities to their students that private professors do not?
In spite of the fact that this court case will never affect my own practice, because I work at a private university, I personally find the situation troubling on multiple levels. I believe it’s worth raising questions about and commenting on the problems posed by the case. Maybe it can help us think more clearly about “free speech” in the college classroom.
In the excerpt of the ruling printed by Volokh (I recommend you read it), the court makes the following assumptions or claims:
- A state university professor’s classroom is considered a semi-public space.
- A state university professor’s actions can be considered actions taken by the government.
- A student’s opinions expressed in a paper can be considered protected public speech.
- Student speech in the classroom setting or in papers can only be limited by this government representative if there are “legitimate pedagogic concerns.”
- Otherise, a student should be free to express any views they choose in a classroom, and is indeed entitled to that privilege regardless of a professor’s views.
I find much to complain about here.
- First, is the professor really just a stand in for the government? I think not. This is too simplistic. The professor is not hired directly by the government and doesn’t directly represent the government, but rather represents an academic field of study as a disciplinary expert. She or he is a contract employee of the government who has a specific task to accomplish vis a vis the students in his or her class with respect to providing instruction and training in that discipline. This is different than being “the government.”
- Is the classroom a semi-public space? First, I want to reject the notion of “semi-public” as being a confused concept. But in any case, the answer is no. The classroom is a space of relationship between a disciplinary master or doctor and a limited number of novices who have been granted access to that space. Their access to the relationship is based on certain qualifications, such as admission to a school or program. Student novices are welcome in a class so long as they respect the relationship they have entered into. Their presence in a course is largely voluntary. The relationship between a particular student and a particular professor in a particular classroom is entered into on a voluntary basis; even in a required class the relationship is technically voluntary, since admission to the school and program and particular course of study were all sought voluntarily. When you decide to enter college or go to university, you are volunteering to play that game of being the novice in a master’s workshop. This is apprenticeship and the partners are not equal.
- Should student self-expression in a college level course be thought of as a form of public, and thus protected speech? Again, I think not. The role of the novice is to engage in the work and practice assigned by the master. All activities related to the course are pedagogic in nature, including all student discussions and forms of self-expression in class. Everything the student says or does is subject to evaluation according to disciplinary standards. The bottom line is that, although a class may even be a training ground for citizenship and self-expression, ultimately, the classroom is not a “forum.” On campuses, we actually do have public “fora,” (the plural of forum is fora) on various topics, and we usually term them as such. As in, “come to tomorrow’s forum on the middle east peace process.” If there is a “forum” on an issue, we ask for people to gather, discuss, and share opinions. But in the classroom the standard is a bit different. We don’t put “psychology” or “biology” up for a forum style discussion. In any case, each professor will have to decide for her or himself concerning what format of student engagement and participation in class works best for training students in whatever disciplinary conventions are being taught. The students won’t decide. The professor will. There’s a power differential there and that difference matters.
- Furthermore, we must observe that in the context of the college-level course student papers are usually the furthest thing from “public” speech. In point of fact, under law, student papers are considered to be PRIVATE speech. Papers are private academic records which are governed by FERPA, the Federal Educational Rights and Privacy Act. Only a student can make a paper public; submitting a paper to a professor does not turn it into public speech. FERPA protects the privacy of papers (and, for that matter, classroom discussion).
- The “legal” analysis I offered in the last bullet point also applies to a more common sense or pragmatic assessment of what a paper is. Papers simply aren’t public as we commonly understand that term. Typically (although “legitimate pedagogic concerns” can alter this practice considerably), the only people who ever see a student paper are the student and the professor. If a professor receives a privately written and communicated paper, reads it privately, reaches a private conclusion about the paper’s merits, and then expresses those conclusions to the student privately, how is this in any way a case of public speech? It is private speech.
- Not only is the paper private rather than public—as a speech-act whatever is written in a paper has not been prevented or restricted. The paper is the paper. Now, after the student’s act of speech is completed, it’s the professor’s turn to speak. And so, the paper the student writes will be evaluated. In this particular case, the paper was evaluated verbally, not with a letter grade. Let’s look schematically at the speech event, the facts of what happened. An assignment was issued. Standards of assessment were communicated (we hope; they always should be). Then the student wrote; i.e. the student expressed herself or himself. The student’s speech was unimpeded; there was no restriction on their act of “speech;” no physical or psychological constraint was imposed. Only, one hopes, the student would limit herself according the disciplinary standards she should have been learning. She would accept that there are consequences for the manner in which one expresses oneself, and that those consequences are context dependent. Once the paper has been written and submitted, the professor then reacts to the paper from a position of authority and greater power. Now, how the professor reacts matters. It is an enormous responsibility. Indeed, it is possible that in the case referred to by Pompeo vs. University of New Mexico, the professor may not have handled her responsibility well; but that is another matter. When a paper is evaluated, the student may not like how the professor reacts, but, if you are told that your paper is wrong, or bad, or out of line, or offensive or unacceptable in some way, it does not mean that your first amendment rights have been violated.
- Therefore, in this case, logically, the only possible way we could speak about the student having had their first amendment rights denied would be the fact that the student was asked to drop the class. Does the student possess a general “right” to express her opinions in that class? If so, they were abridged. But this is pure foolishness. First of all, being a registered student in a college level class is a privilege, not a right. Second, a student’s speech in that class is not public, as I stated above, or as it would be in a true forum. Third, speech in a class is never free in the sense of being free of conventions, limitations, evaluation or standards of decorum. These vary widely depending on the discipline and the professor. They aren’t to be set in a courtroom. Students just have to adapt to what they find in the classrooms they enter. Finally, she dropped the class voluntarily. She could have stayed in the class, and accepted the evaluations as they were offered. How is voluntary withdrawal from a course at the professor’s suggestion a violation of a right to free speech? It makes no sense.
Finally, there is a word that needs to be said here. Somebody has to say it and it might as well be me. That word is entitlement. In some ways, by accepting this lawsuit, the court appears to endorse the “entitlement mentality” that so many professors claim today’s college students exhibit. We see students all the time who apparently think they are entitled to be in our classrooms. Students seem to think they are entitled to receive good grades. They seem to feel entitled to take tests and quizzes whenever it is convenient for them. They want to be able to email their professors about anything at any time, and they expect immediate replies. They feel entitled to their opinions, and ways of expressing themselves, and don’t want to be questioned. They feel entitled to be themselves regardless of whatever standards the professors and society demands of them. This is their time. They are entitled to study any subject in any way they want. They are paying customers. They paid their tuition, and are essentially buying credit hours towards a degree.
Well, I obviously reject all of that. All that it seems necessary to say about the “entitlement mentality” is that students may indeed be customers or clients, but many of them may have misunderstood what they are paying for. Strictly speaking, what the university student is paying for is an opportunity to work. They pay to work with experts who will practice critical engagement with their efforts at learning mastery of disciplinary subjects. They are paying for critical feedback (grades and evaluation, including evaluation of their opinions, or at least, the manner in which their opinions are expressed and argued for). The rest, all the work, is up to them. They pay, but are not entitled to anything other than what they earn within the agonistic context of classroom instruction and disciplined personal study.