by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In a previous blogpost I reported on cancellations at two North Carolina educational institutions. Today I’m sorry to have to report on another. The victim in this case is Stephen Porter, a tenured professor in the Department of Educational Leadership at NC State University [NCSU] who got himself in hot water over a series of comments criticizing the department’s approach to diversity, equity, and inclusion [DEI].
Porter made the first comment a faculty meeting. In response to a proposal to add a question about teachers’ handling of DEI to student course evaluations, Porter suggested “the department was rushing to include a question that had not been properly designed and thus might be harmful to faculty without yielding useful information.”
The second took the form of an email message sent by Porter to several other faculty members. In the message Porter provided a link to a news article that was critical of a faculty search process, conducted with “unusual secrecy,” that focused on a professor who had been terminated by another university for an inappropriate relationship with a student and other misconduct. In his message Porter suggested the search process had been distorted by an excessive “desire to hire a Black scholar whose work focused on racial issues,” and added, “This kind of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work!”
In the third comment—the one that really got him in trouble—Porter was critical of an upcoming conference hosted by the Association for the Study of Higher Education. In a piece posted on his personal blog under the title, “ASHE Has Become a Woke Joke,” he complained that “the focus of the conference had shifted from general post-secondary research to a focus on social justice.” He ended the piece by saying, “I prefer conferences where 1) the attendees and presenters are smarter than me and 2) I constantly learn things. That’s why I stopped attending ASHE several years ago.”
The administration took a series of increasingly punitive series of steps in response to these comments. The first of them earned Porter the label of “bully” in NCSU’s academic year report, and after the last of them the head of his department forced Porter out of his position in the program area in which he had been working, excluded him from a newly created program area, and denied him the ability to recruit and work with new doctoral advisees. Because the last of these involved a “core requirement of his job,” Porter regarded it as an attack on his status as a tenured member of the faculty.
To protect himself from what he regarded as unfair and illegal retaliatory actions, Porter sued the university in federal court. He argued that, because NCSU is a public institution, discipling him for his comments about DEI violated his right to freedom of speech under the First Amendment. The university, in turn, filed a motion to dismiss claiming Porter had “failed to state a claim for which relief may be granted.” The district court granted the motion. Porter appealed to the US Court of Appeals for the 4th Circuit, but the 4th Circuit upheld the dismissal.
The 4th Circuit’s decision did not come as a surprise. The court is now dominated by left-wing ideologues who subscribe to the same social justice orthodoxy as the administrators who run NC State’s Dept. of Educational Leadership. There are exceptions, however, and one of them is Judge Julius N. Richardson. As a member of the three-judge panel that heard Porter’s appeal, Richardson wrote a lengthy, well-reasoned, and forceful dissent that includes many passages worth quoting in full.
Richardson begins by saying:
Over a century ago, a Massachusetts policeman filed suit, claiming that he was fired for speaking his mind. In dismissing his suit, Justice Holmes famously quipped: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” Yet—like many Holmesian aphorisms—that is no longer our law. It is now well-settled that citizens do not surrender their First Amendment rights by accepting public employment. Today, when a state employer retaliates against its employee for speaking as a citizen on a matter of public concern, the First Amendment demands that the state justify its action. [Citations and quotation marks omitted.]
Richardson then summarizes his view of the case:
Stephen Porter, a professor at North Carolina State University, says that the University retaliated against him for his protected speech. My friends in the majority … hold that much of Porter’s speech was not protected at all, and that—for his speech that was protected—Porter has not drawn a plausible link to the adverse action that he suffered.
My friends err at both steps. Porter was indeed speaking as a citizen on a matter of public concern. And—based on his complaint’s allegations—it is plausible that the University retaliated against him because of it. The University thus must put forth evidence to justify its action. But, at this early stage of litigation, the government has not made that showing. So we should allow Porter’s suit to proceed.
And after a clear explanation of the law regarding free speech by public employees, a detailed review of the facts alleged in Porter’s complaint, and a cogent analysis of how the law applies to those facts, Richardson concludes:
Our job … is not to appraise the value of Porter’s speech or his personal virtue. It’s to take the facts as alleged in the complaint, read them in a light most favorable to Porter, and then decide whether he’s plausibly stated a claim for relief. And, drawing all reasonable inferences in Porter’s favor, the University threatened his tenure by removing him from his program area because of his protected speech. The University has not yet produced evidence to justify its decision. And no such evidence springs forth from the face of the complaint. So Porter’s claims ought to survive, and the district court’s contrary decision ought to be reversed. This is not a close call.
My friends in the majority apparently seek to return to the days of Justice Holmes. But only for certain plaintiffs. In doing so they have developed a new “bad man” theory of the law: identify the bad man; he loses. [That] threadbare analysis willfully abandons both our precedent and the facts in search of its desired result. Even for a Holmesian, that cynicism breaks new ground.
It’s a textbook example of how appellate opinions ought to be written. For more information about the 4th Circuit’s decision and Richardson’s dissent see this series of tweets by K.C. Johnson. Better still, read the whole thing.