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| Scott Gelber |
Gelber did not comply, and he was escorted off campus,
allegedly “to ensure [his] safety, the safety of others, and to protect the
instructional integrity of the college of law’s program of instruction.” (Curmie notes the lack of parallelism in that
sentence from a law school dean with wry amusement.) Gelber was charged with “repeatedly violat[ing]
the provisions of the ONU Faculty Handbook and ONU Staff Handbook governing
collegiality”; and his conduct supposedly “r[ose] to a level sufficient to
support separation.”
Wow, he must have done something really, really, bad to merit de facto arresting him in front of his students and denying him due process, right? Ah, Gentle Reader, you’re ahead of Curmie once again. The fact is, we still don’t know exactly what Gelber allegedly did. What we do know is that he was a vocal opponent of the school’s DEI policy, and that the right-wing press was all over this case when it first broke, with headlines like “Lawsuit describes appalled law professor who witnessed illegal hiring in name of ‘diversity.’”
Law students, as Curmie has noted on several previous
occasions are apparently remarkably fragile creatures, and law schools are,
ironically, even worse than other kinds of higher ed institutions at upholding
the constitutional rights of their faculty.
(See Curmie’s commentaries on four such stories here,
here,
here,
and here.)
OK, a couple of things upfront. First, Curmie knows nothing about what,
specifically, Gelber is alleged to have done.
Perhaps he really did do something egregious. Curmie raises a skeptical eyebrow, but grants
the possibility. But even if the
university is “right” on the facts of the case, there’s no excuse for the
denial of due process or the unwillingness even to spell out the specifics of
the charges.
Curmie went through a similar situation with less dire
potential consequences a couple of decades ago.
The college claimed he’d done something wrong, but wouldn’t say exactly
what. So the opportunity to defend
against those charges was significantly curtailed. Claiming you didn’t do anything problematic
is evidence that you think it’s okay to do Big Horrible Thing; wondering if
you’re being accused of X is granting that X is a Big Horrible Thing (and that
you probably did it). Curmie believes
Joseph Heller created a term for this situation.
“Collegiality,” of course, is a squishy term in the best of
times. Curmie was once accused of
uncollegial behavior because he argued against requiring students to
participate in a colleague’s pet project (not that the project shouldn’t be
available, only that it shouldn’t be required).
And the only way mere uncollegiality ought to prompt a response like
what ONU did to Gelber would be if it rose to the level of illegality (a “true
threat”), which should be handled by law enforcement, not the university.
It is well within the realm of possibility that Gelber said something that made one or more students “uncomfortable.” Good! Students, especially law students, ought to be confronted with ideas that challenge their pre-conceptions and prejudices. The only way Gelber’s stating his personal beliefs is actually a problem is if he punishes students who disagree with him (or rewards those who agree). If there’s evidence of that, ONU hasn’t made it public. Of course, it appears they still haven’t told Gelber or his lawyer… or perhaps they did, privately, after the case had gone to trial.
The university claims Gelber’s opinions on DEI were not the real problem, that Gelber was “intolerant
of opposing opinions, disruptive, uncooperative and demeaning of faculty and
staff members.” These protests to the
contrary notwithstanding, it appears that Gelber’s outspoken criticism of ONU’s
DEI policies, which, as we know, came down from the mountaintop with Moses, was
at the center of complaints. (Again,
even if those accusations of intolerance, etc., are true, marching the guy out
of his classroom and denying due process is certainly not ethical and probably
not legal.)
DEI policies, run correctly, search out qualified people
from certain demographics. They get some
small preference, all other things being equal.
(Veterans get even more of an advantage at state schools in Texas.) Straight white guys still get the job if
they’re clearly the best person for the job.
Of course, inevitably, that “all other things being equal” part
sometimes fades away, and a demonstrably less qualified candidate is selected. That, say proponents, is precisely what
happened for decades, just in the other direction. This is where we avoid that issue and remind
you, Gentle Reader, that this is more about Gelber’s First Amendment rights and
ONU’s procedures, not the legitimacy of their concerns.
Show that Gelber discriminates against the kind of people
who might benefit from a DEI initiative, and there’s a case. Even then, there’s no apparent reason to
attempt to embarrass him in front of his students or to not even tell him what
he’s supposedly done to precipitate this situation. FIRE (the Federation for Individual Rights
and Expression), as well as Gerber’s attorney (obviously) tried repeatedly to
the ONU to specify what he had done to merit this response. The university blithely ignored those
requests.
Attempting to fire Gelber for expressing his political views
(which university officials knew about when they hired him and when they
granted him tenure) without presenting literally any actual evidence and
without allowing him due process, perpetrates a greater injustice than what they’re
accusing him of.
Anyway, Gelber sued. It
may or may not have been a good idea to hire America First Legal as his
representatives. As you probably guessed
from their name, Gentle Reader, they’re primarily interested in right-wing
causes. That offers the advantage that
they’d be particularly zealous about Gelber’s cause. The downside is the temptation to make the
case about what he said or did instead of the more compelling argument about
the procedures the university followed.
The university tried to obtain a summary judgment to quash
the suit. They were partially successful,
knocking out a couple of the counts of Gelber’s suit. Other parts of the suit were allowed to go
forward, however, with the judge declaring that ONU’s “lack of regard for
particularity is either naive or a callous disregard for due process.” But that ruling happened last September. Why write about it now?
We turn to the headline on FIRE’s follow-up story, published
last week: “Ohio Northern sues professor for having the audacity to defend his rights in court.” Ouch! Anyway,
here’s the key paragraph:
But for defending his rights in state court, ONU sued Gerber in federal court on Jan. 20, claiming Gerber’s “perverted” lawsuit is apparently an “attempt to accomplish . . . personal vendettas” and “unleashing political retribution” against ONU — notwithstanding the state court holding Gerber’s claims warranted proceeding to a jury. ONU’s suit claims Gerber’s “true goal is to manufacture outrage, to influence political retribution, and to extract vengeance against” ONU. According to the lawsuit, Gerber’s attempt to hold the university to its own policies is an unlawful “abuse of process.”
Oh, bloody hell. FIRE’s
Zach Greenberg calls ONU’s suit a SLAPP (strategic lawsuit against public
participation), an all too common practice by litigants who don’t have much of
a case, but who think they can outlast their opponents because their pockets
are deeper. Curmie is tempted to agree.
About the only thing no one can dispute here is that Scott
Gerber is a controversial teacher. It’s
admittedly a small sample size, but the fact that of 13 respondents on the Rate My Professors site, 11 rated him either “awesome” (the highest ranking) or “awful” (the
lowest ranking) sort of says it all.
Curmie has literally never seen anything like that inverse bell
curve. It certainly does make one
suspect that Gerber’s politics play a role in students’ responses to his
courses.
So… where are we? The chances that Gerber did something that should get him fired: possible. Chances that Gerber is an asshole: quite likely. Chances that ONU violated their own policies, denied due process, and damned well ought to be humiliated and forced to cough up major moolah: bordering on ontological certitude.
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