Another Law School Violates Due Process

Scott Gelber

DEI practices are all over the news of late, but this post is about something that happened nearly two years ago.  Well, it started then.  In April of 2023, campus police entered the classroom of tenured law professor Scott Gelber at Ohio Northern University and marched him to a meeting with the law school dean, Charles H. Rose III.  Rose demanded that Gelber resign or retire, or he’d be fired.

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.

It's Not Libel If It's True

Throughout most of what we now think of as the Golden Age of Athens, the City Dionysia, known today primarily for the production of the tragedies of Aeschylus, Sophocles, and Euripides, also included comedies. Specifically, these were Old Comedies: the topical, satirical and vulgar works we now associate almost exclusively with Aristophanes, the only Old Comedy playwright with even a single play available to us intact. I mention this because this state-sponsored self-mockery really was a symbol of the strength of the polis.

We see this phenomenon play out in our own day, not simply in snarky (and often accurate) comments that some anti-gay crusader must be a little worried about his own sexuality, but also in more deeply-rooted societal self-images. Witness, for example, the aftermath of 9/11. The tangible symbol that we were going to be OK was when David Letterman returned to telling jokes about George W. Bush. When you’re in trouble, you don’t joke about the President; when you start feeling all right again, the comedy begins to flow.

Moreover, most of us place a high value on the ability to weather the storm, to be criticized and to retain one’s ethical sensibilities and one’s sense of perspective. No one who has ever stood for anything has made it through life without taking a public pounding. The Internet has made these episodes more frequent, and most of us have adapted reasonably well. Not so the folks at the Edwin Mellen Press, whose reputation as a scholarly publishing house just took a self-initiated hit.

In August of 2010, Dale Askey (left), then a librarian at Kansas State University, posted an article entitled “The Curious Case of the Edwin Mellen Press” on his personal blog. Askey described Edwin Mellen as a “vanity press” (technically not true, but it certainly shares certain characteristics with vanity presses: I’ve called it a “first cousin of a vanity press” for years), with “few, if any, noted scholars serving as series editors” (arguable), benefiting largely from librarians not returning books sent for approval at “egregiously high prices” (their prices, at least for non-library buyers, are higher than most, but not by a lot; I can’t speak to the approval book argument).

Adults working for the Edwin Mellen Press would, perhaps, argue the points on the blog’s comments section, then go back to publishing books. Ah, but that would be adults. The press filed a multi-million dollar lawsuit against not only Askey, but McMaster University, where he is now employed, because they didn’t immediately make him take the post down. No, I didn’t make that up: they’re suing the university for not violating the freedom of speech and academic freedom of one of their employees by forcing him to take down a private blog post he made before they’d ever heard of him.

There is a separate suit filed by Mellen’s founder against Askey alone, presumably having to do with comments on the blog post. Since the post has been taken down—Askey won’t say when or under what circumstances—it’s impossible to know the details. [EDIT: turns out a capture of the post is online, as part of the documentation for the suit, here.] But Jake New of the Chronicle of Higher Education reports that at least some of the comments in question were made by other people, not Askey himself. Mellen is saying, apparently, that Askey was under an obligation to remove negative material posted by others. I’m no lawyer, but I do recognize the aroma of bovine feces when I smell it.

New continues, “The notice goes on to allege that the press asked McMaster to remove the post and for an apology, but that the university did not oblige and then ‘pursued an Internet campaign to put the Press out of business.’” Uh huh. It strikes me that they’re doing a pretty good job of going out of business without any assistance.

The Mellen website claims that their books “qualify for tenure promotion.” Maybe that’s supposed to read “tenure/promotion”? Anyway, their books help a faculty member’s case if and only if the university in question says so. And, frankly, there are a lot of people on those tenure and promotion committees who aren’t going to be terribly impressed. That’s why, for example, a poll in which readers were asked to rank the most-respected publishers in philosophy places Edwin Mellen dead last.

The comments on the blog piece about those rankings—here we are at comments, again—tell an important story, as well. Witness “Chris,” who would regard an Edwin Mellen listing on a CV as a “significant negative.” More significantly, check out the commentary of Leslie Green, Professor of the Philosophy of Law and Fellow of Balliol College, Oxford:

The Edwin Mellen Press may well, as this survey suggests, have the worst quality philosophy list; but it tops the league in disgraceful conduct in defense of its dismal reputation.

A professional librarian at McMaster University’s library complained, in a 2010 blog-post, that Mellen was a poor publisher with a weak list of low-quality books, scarcely edited, cheaply produced, but at exorbitant prices. Librarians are expert at making such judgments; that’s what universities pay them to do. And the post made a key point about the public interest: ‘in a time when libraries cannot purchase so much of the first-class scholarship, there is simply no reason to support such ventures.’

No one likes bad reviews; but Mellen’s approach is not to disprove the assessment, pledge to improve its quality, or reconsider its business-model. It is to slam McMaster University and its librarian with a three million dollar lawsuit in the Ontario Superior Court, alleging libel and claiming massive aggravated and exemplary damages. The matter is pending.

The lawsuit is threadbare. With respect to the parts of Mellen’s list with which I am familiar, the librarian’s statements noted above are all true and the quality judgments are correct. (And this survey suggests that would be a common assessment.) Moreover, on the facts in this situation, it is obviously fair comment, and public policy considerations strongly suggest that university librarians enjoy a qualified privilege with respect to their assessments of the books they consider buying for their universities. It would be a disaster for universities, students, researchers and the taxpayer if aggrieved publishers were permitted to silence discussions of the quality of their publications by threats of lawsuit.

McMaster University’s response to this appalling tactic has been surprising. Public silence. No one at McMaster has spoken in defense of the librarian or the University; no University administrator has pushed back against the crude threat to academic freedom that this represents. (But then the President of McMaster’s list of the seven ‘McMaster Principles’ omits any mention of academic freedom.) Are the McMaster faculty, administration, and faculty associations already so cowed by libel-chill that they are afraid to speak up? Or are they unaware of Mellen’s attack? Or—and this is just as worrying—is it that McMaster values its professional librarians so little that it is willing to let them bear the brunt of such harassment, so long as the University itself can avoid vicarious liability?

Let’s hope someone at McMaster forcefully says ‘enough’ to this sort of bullying. Universities have a negative duty not to abridge the academic freedom of their members; they also have a positive duty to see to it that others do not do it either.

Don’t expect me to improve on that analysis, Gentle Reader, except perhaps to point out that SLAPP lawsuits really piss me off, and that the press has squandered the respectability it did have. Publishers ought to be all about the unfettered exchange of ideas, ought to be passionate about free expression, ought to champion the rights of those who speak the truth as they see it. Instead, they have demonstrated beyond all doubt that they aren’t the slightest bit interested in any of those ideals: they want to pretend to do so as a means of making money.

They also confirm one of Curmie’s go-to maxims: if you have to tell me, it ain’t so. And they’re spending a lot of energy telling us they’re not a “dubious publisher.”