The University's Lawyer Did WHAT???

Steven Lovett

This one might not interest you a lot, Gentle Reader, but if you’re in, or even care about, higher education, it should.  The Chronicle of Higher Education featured an article last week under the intriguing headline of “A University’s Top Lawyer Is Behind a Bill to Weaken Tenure. The University Had No Idea.”  Yes, really.  (BTW, the article is probably behind a paywall.  Curmie promises not to mislead you about its content.  Or you could check out a number of other sources, including this one.)

It turns out the university in question is a place where Curmie used to work as a part-time rent-a-prof for a year, Emporia State University in Kansas.  Curmie had a decent time there, but that single year was occasioned not merely by the fact that he was able to find a full-time position elsewhere, but by the fact that he couldn’t have stayed on if he’d wanted to.  This wasn’t because the university was dissatisfied with Curmie’s work (he taught more sections in the spring than in the previous fall, so they couldn’t have wanted him gone too badly), but because they were interested in saving a few bucks. 

Curmie forgets the exact details, but it was something like that anyone who taught more than two semesters over a three year period was entitled to benefits; the university therefore had a rotation of three professors to teach the course in question, each for a single academic year at a time.  Curmie got the job because the guy whose turn it was had acquired a full-time job as a bookstore manager and recommended Curmie.  But I couldn’t have kept the job for another year, lest the university would have been forced to treat part-time faculty ethically.

Anyway, let’s fast-forward a couple of decades to the time of COVID shutdowns, which cost colleges and universities, especially non-flagship state schools like Emporia, a lot of money in lost tuition and especially lost room and board income.  That’s when the state Board of Regents decided that state schools could propose plans whereby faculty, even tenured faculty, could be fired without the university’s needing to demonstrate financial exigency.  (N.B., there’s a difference between having a financial motive and financial exigency.)

To be fair, the policy was intended to be temporary, although of course its implementation would be rather more permanent on those affected.  Moreover, the political appointees of the Board neither know nor generally even care anything about education and, unlike, say the sociopath who pretends to think that firing park rangers, air traffic controllers, and USAid workers is going to be a net positive, they might actually have thought they were doing the right thing. 

They weren’t, of course, and almost all of the state’s public colleges and universities declined to participate (although it took the chancellor of Curmie’s PhD alma mater, the University of Kansas, five months to reach that obvious conclusion).  Emporia, though, cheerfully signed on, and fired some thirty tenured and tenure-track faculty. 

To say that the layoffs were handled poorly would be an understatement.  And it’s not just Curmie saying that.  The AAUP’s lengthy report concludes that Emporia’s administration’s actions “constituted a direct assault on tenure and, by extension, academic freedom” and “[demonstrate] that conditions for shared governance at Emporia State University are deficient.” 

More significant, because more potentially binding, the lawsuit filed by eleven tenured faculty dismissed by the university was allowed to go forward by a US District Judge in December. 

Whether because the short-term emergency had passed, because the administration saw the proverbial light, or because of the slap-down in court, Emporia officials now appear to be doing what they can to appear, at least, to support tenure.  Or, at least they were, prior to their lead legal counsel going rogue.

Yes, Emporia State’s chief legal counsel, Steven Lovett, de facto introduced House Bill 2348, which would re-define tenure by declaring that it should not “be defined, awarded, or recognized as an entitlement, right, or property interest in a faculty member’s current, ongoing, or future employment by an institution.”  That “property interest” business is really what this kerfuffle is all about.  Curmie struggles to parse that particular legalese, but this part is pretty clear: that tenure can be “at any time revoked, limited, altered or otherwise modified by the awarding institution or by the state Board of Regents.”

In other words, the bill doesn’t end tenure; it simply renders it meaningless.  The whole idea behind tenure is that faculty who have earned it, which is anything but automatic, should be able to do their research and teaching without administrators looking over their shoulders the whole time.  Academic freedom kicks in completely with tenure, allowing faculty to propose unconventional, perhaps even iconoclastic, ideas.  This benefits both the faculty member and the discipline.  It’s not a bad thing to question conventional wisdom; indeed, it’s the only path to progress.

What people outside academe often don’t understand is that tenure also benefits the institution by making it less likely that good faculty are lured away by another university.  It’s not coincidental that the vast majority of job postings in the academy are for untenured assistant professorships.  Also, of course, the professoriate is well-educated and, generally speaking, intelligent.  Most faculty members could be making more money, often a lot more money, doing something else.  The job security that comes with tenure is a compensating factor, and becomes a way of securing good faculty. 

Also, because the granting of tenure has a higher threshold than simple re-appointment, and because denial of tenure almost always results in a terminal contract, mediocre faculty tend to be weeded out before there’s even a tenure decision.  Obviously, mistakes can be made (in both directions), but in general the process works pretty well, and the existence of tenure is unquestionably a net positive.

For these reasons, the privileges that accompany tenure should be revoked only under extreme circumstances.  Gross misconduct—plagiarism, not meeting classes, sexual impropriety, etc.—would qualify.  So would actual financial exigency: not simply that the university is looking to save money, but that it has no other choice but to cut the position (i.e., not just this particular faculty member).

Back in Curmie’s debating days, one of the mantras was that “the presumption rests with the negative.”  That is, the burden of proof is on whoever wants to change the status quo.  The best-known version of this idea is “innocent until proven guilty”: the prosecution must prove its case; the defense need only poke enough holes in the case to create “reasonable doubt.” 

The same phenomenon applies to tenure.  Applicants must affirmatively prove that they deserve it, not merely that there’s no particular reason to deny it.  But once tenure has been granted, the university must prove that it should be revoked… and it must do so in accordance with both applicable laws and their own guarantees of due process.  That doesn’t mean that such revocation shouldn’t exist, and indeed it does, often but not always with just cause.

Mr. Lovett knows that, or he damned well should.  Thus, that he would seek to undermine the foundations of tenure is odd.  That he would do so in direct contravention of his (only?) client’s wishes is… well, Curmie isn’t a lawyer, much less an authority on legal ethics, but the phrase “grounds for disbarment” comes to mind.

On the one hand, we can appreciate that “the university respects Mr. Lovett’s constitutional rights and freedom of expression.”  That’s a good thing.  On the other hand, it doesn’t take much imagination to contemplate a scenario like this:

Lovett: You wanted to see me?

ESU: Yes, we wanted your advice on a legal strategy.

Lovett: Sure, what’s the case?

ESU: How do we defend the university’s interests against this fucking moron who wants to undermine our ability to attract and retain the best possible faculty?

Lovett: Oh.

This doesn’t look like it’s going to end well.  For anyone.

 

Confucius and the Fourth Circuit

Twentysomething years ago, a few months after completing my PhD, I got a phone call from my mentor in Asian theatre, who, upon learning my job search wasn’t going as well as I might have hoped, asked if I wanted to teach a couple sections of the university’s Eastern Civilizations course. I asked if I was really qualified to teach such a course. His response: “You know something, and you can read.”

 

Based largely on his recommendation, I got an interview for the position. I made no attempt to conceal my ignorance of a lot of what I’d be teaching. But the department had struggled with grad students who had lost control of their classrooms, and I’d taught full-time for ten years before entering the doctoral program; I got the job. The head of the Eastern Civ program closed the interview with “There are some books in my office you’ll want to read before you start.” I knew something, and I could read. 

That’s relevant to my consideration of the recent ruling of the Fourth Circuit Court of Appeals in Porter v. Board of Trustees of North Carolina State University, in which a tenured faculty member claimed to have been punished for arguing against certain initiatives undertaken by his department. I’m no lawyer, so there’s some legalese I’m not so sure about, and I have no interest in chasing down all the precedents cited by either the majority or the dissent to see if they really say what these judges say they say. But I know something and I can read. 

More to the point, one of the texts I taught in that Eastern Civ course was Confucius’s Analects, which I had to get to know a lot better than I did previously in order to teach it to someone else. One of the central tenets of Confucian thought was his argument against having too many laws, as no one could possibly predict all the various special circumstances surrounding every dispute. Context matters; timing matters; motives matter. Confucius’s solution was to turn everything over to a wise counselor (like him) who would weigh all the relevant elements on a case by case basis. That’s not the way our justice system works, nor would it be practical, but it’s easy to see its appeal… in theory, at least. 

Significantly, Confucius’s reservations about laws’ inability to anticipate all the possible combinations of circumstances are the first cousin if not the sibling of what Jack Marshall of Ethics Alarms calls the “ethics incompleteness principle,” which asserts that there “are always anomalies on the periphery of every normative system, no matter how sound or well articulated.” 

An extension of this is that what is lawful and what is just are related but inevitably not identical concepts. The problem is magnified when it’s not just the law, but previous court decisions, that are ambiguous. Where, for example, does the First Amendment’s guarantee of free expression leave off and an employer’s desire for a congenial and (generally speaking) united workplace begin? Does it matter if the employer is a government agency? If it’s a university? If the alleged miscreant has tenure? If the place is just a little awkward as opposed to a war zone? Is academic freedom a relevant concern? The answer to the first question appears to be “well, it depends”; all of the seemingly disjunctive questions would appear to be best answered by “sort of.” 

The basic facts are these: Stephen Porter teaches statistics in the Department of Leadership, Policy and Adult & Higher Education at North Carolina State University. He claims to have been punished—not fired, exactly, but ostracized and placed in a situation which could likely result in his position being retrenched—for being outspoken about what he perceived to be an abandonment of “rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” 

Porter says that three moments between 2016 and 2018 are at the center of his claim. The first came in the spring of 2016, when he objected to the addition of a question about diversity on student evaluation forms because he believed the question to be insufficiently researched. 

The second occasion was two years later, when he sent an email to departmental colleagues linking to an article in Inside Higher Ed which criticized a departmental search led by Alyssa Rockenbach. Porter appended the comment, “Did you all see this? … This kind of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work, Alyssa!” 

In a subsequent meeting with Penny Pasque, then the department chair, Porter argued that Rockenbach had “cut corners” in vetting a candidate “out of a desire to hire a Black scholar whose work focused on racial issues.” (That candidate, by the way, had been fired from his previous position for financial misconduct.) 

That fall, Porter published a brief blog piece entitled “ASHE Has Become a Woke Joke.” His commentary concluded, “I prefer conferences where 1) the attendees and presenters are smarter than me and 2) I constantly learn new things. That’s why I stopped attending ASHE several years ago and switched to AEFP.” [ASHE is the Association for the Study of Higher Education; AEFP is the Association for Education Finance and Policy.] 

Finally, that fall, the department considered hiring a new faculty member. Pasque changed what was originally scheduled as a meeting of the HEPA (the Higher Education Program Area) faculty to discuss the candidate, and, with only a small number of faculty present in a virtual meeting, proposed that Porter leave HEPA. 

Feeling ambushed, Porter responded, “Give me a fucking break, folks. I was the one who said [the potential hire] should come. And now I’m the bad guy because I don’t want to leave Higher Ed for a non-existent program area.” This, of course, led to further tensions, including a reprimand for his language. Things escalated from there, and Porter was involuntarily removed from HEPA and de facto prevented from having advisees because of “lack of collegiality” and complaints from graduate students (that would be a grand total of two of the sixty grad students, by the way). 

Porter claimed his comments were protected speech, and that the university violated his First Amendment rights; he sued the university and several individuals. The university saw things otherwise. The Fourth Circuit, by a vote of 2-1, agreed with the university. Unsurprisingly, for different and predictable reasons, both FIRE (who had filed an amicus brief on Porter’s behalf) and Jonathan Turley disagreed. 

Here’s where my “knowing something” becomes relevant. Curmie has no opinion about whether the relevant precedent is Pickering v. Board of Education or Garcetti v. Ceballos, but he does know how universities operate. Let’s start with a couple of points that clearly work against Porter. 

First, the chances that he’s an asshole as opposed to merely someone whose political stances the administration doesn’t like is quite high. He says his response to that student evaluation question was “was amicable in tone, although perhaps embarrassing” to the person presenting the proposal. That’s clearly a subjective, self-serving, and retrospective view (not discounting the possibility that it’s also accurate). 

And sending a taunting email to a colleague who has been embarrassed in a national publication, especially when the anonymous source for the article is quite likely to be Porter himself, is more than a little unprofessional. Copying the rest of the department only aggravates the situation. 

Secondly, Porter’s blog post did indeed damage the reputation of the university, even if he has a point, since it led to a rebuttal from the president of an important professional organization in the field in her keynote address. The old adage of “don’t shit where you eat” is advice Porter does not seem to have taken to heart. 

And it’s pretty clear that Porter did little to mend the fences with his departmental colleagues when warned that failure to do so would have repercussions. 

But there are considerations in the other direction, too. (If there are lawyers reading this and Curmie is screwing up the legal arguments, please correct him.) First off, being a curmudgeon is (I trust, given my sobriquet) not illegal, and comments remain protected speech except in specific instances—sedition, incitement, slander, etc. (There’s another exception we’ll come to in a moment.) 

The fact that Porter is a tenured faculty member at a state university carries three (count ‘em, three!) protections. 1). Whereas most businesses have the authority to sanction employee speech (“you can say what you want, you just can’t do so and work for us”), there’s a specific exemption for university faculty, at least in certain circumstances. 2). Private enterprises, including universities, have at least some authority to maintain their own rules, provided they are clearly stated and equitably enforced, but state universities do not have this freedom. 3). Tenure brings with it the full degree of academic freedom, which has come to include the ability to criticize the decisions of their administration. 

The majority decision rests, apparently, on two foundations. One is that the presumed lack of chronological propinquity between the blog post and the department chair’s response, and between Porter’s outburst in the meeting and his removal from HEPA indicates that the latter is not a direct result of the former. Here’s where quoting Dr. Porter directly (from a different context) seems the appropriate rejoinder: “Give me a fucking break, folks!” Of course it was retaliation. The court’s argument that the time lapse means anything suggests an ignorance of both the way universities operate and, indeed, of human nature. (It also doesn’t speak well for Porter’s legal team.) 

The other argument is that Porter was speaking as an employee, and is therefore not entitled to the First Amendment protections he would have as a private citizen. (This is why Elon Musk had the legal right to fire that engineer who told him the truth instead of what he wanted to hear.) Indeed, Porter supposedly said he was “just doing [his] job” in questioning the student evaluation proposal. If nothing else, this comment elicited one of my all-time favorite lines in judicial decisions: in his dissent, Judge Julius N. Richardson writes, “Superman deflects praise by saying that he’s ‘just doing his job,’ even though the citizens of Metropolis never cut him a paycheck.” 

In fact, that episode could be interpreted either way. Yes, Porter was acting as an employee in one sense, but as a statistician with a particular interest in this kind of survey, he was employing his particular skills. Does this qualify as his “research,” which would make his speech protected? I’m gonna call this one a wash. 

The blog post would seem to meet the requirements of protected speech: it’s written as a private citizen, expressing an opinion on an area of public interest. (I’m interested, and I have no connections, positive or negative, to the organization in question.) Still, the blog does identify Porter as a faculty member at North Carolina State… or at least it does now; I presume it did when the essay was posted. Does that mean he was functioning as an employee? I don’t think so, but one could make the case. 

Finally, there’s the business about the new hire and the ensuing brouhaha. Here, there’s no question that Porter was uncivil, but he was certainly provoked. Curmie is pretty certain he never told colleagues to “give me a fucking break,” but substituting “damned” for “fucking” would increase the likelihood he’s uttered that sentence fairly significantly. 

Yes, Porter was “uncollegial” at that moment, but Curmie offers the following in response. We’re talking about a one instance (or perhaps two or three, if we include the other incidents) over the period of several years. This does not a pattern make. (Yes, there may have been other incidents that didn’t make it to the court case.) 

Collegiality is, of course, a good thing in general terms, and it is essential to some degree in some disciplines: in my field, theatre, for instance, if the director and designers can’t get along, it will indeed affect the work product of the institution. But even here, there’s no need to like each other, just to work collaboratively. I don’t know enough about what people in a Leadership, Policy and Adult & Higher Education department do, but from an outsider’s perspective, it doesn’t seem like any high degree of collegiality would be a sine qua non. Moreover, whereas collegiality is sometimes, probably too often, a consideration as to whether someone gets a promotion, Curmie has never seen it used in what amounts to a demotion. 

Finally, and most importantly, there’s an increasingly ominous trend to use “uncollegial” to mean “insufficiently obeisant.” Disagreements are at the center of the academic project. Similarly, the most valuable comments on, for example, Ethics Alarms, aren’t the ones that say “You’re absolutely right, Jack”; they’re the variations on “yeah, but…” or even “I disagree because…” There are some issues on which we’ll never agree, but hearing an articulate rationale for an opinion with which we disagree is how we learn, and that, Gentle Reader, is a good thing. 

When Curmie started his career, the concept of “shared governance” was alive and well. It’s now on life support, in danger of flat-lining in the very near future. Administrators are increasingly overpaid relative to faculty, increasingly autocratic, increasingly dismissive of anyone who questions their latest harebrained scheme. And Trustees/Regents/whatever at state universities listen only to the governor who appointed them or, occasionally, to high-ranking administrators; students, faculty, staff, and alumni are ignored… unless, of course, they happen to be rich. 

So, where does this leave us in this case? It ought to be self-evident that legal decisions ought to be based on the law, but here the law doesn’t really clarify things very much, as so much depends on definitions that are neither clear nor fixed. But now is when we listen to Confucius and search out the most just solution. 

It’s possible that stronger legal case is that of the university.  But it’s clear to me, at least, that Dr. Porter is the more aggrieved party. I wouldn’t necessarily relish having him as a colleague, but from my perspective the Fourth Circuit got this one wrong. Of course, Curmie was an opinionated professor who occasionally had the audacity to say out loud that not all decisions emanating from administrators’ offices were divinely inspired, so perhaps he’s not the most unbiased source.

This piece was written as the third installment of “Curmie’s Conjectures” on the Ethics Alarms blog.  I have made a couple of minor stylistic changes and corrected a typo or two here, but the argument remains the same.  As with earlier such posts, there is much more likely to be discussion there than here; you are welcome to head there... or not.

Musings on the Elimination of DEI Offices in Texas State Universities

Curmie had coffee with a friend and former colleague last week. We talked about many things, including that our former employer’s website had been cyber-attacked over the weekend, leading to the very real possibility that email and other such services will be down for an extended period of time. 

But he also asked me what I thought of the move by Governor Greg Abbott and his legislative majority to eliminate DEI (Diversity, Equity, and Inclusion) offices from all state colleges and universities, effective as January of 2024. I replied that I was ambivalent, thereby placing myself, no doubt, well to the political right of the majority of my friends in academe. 

Wait ‘til they find out that I don’t think the state’s new restrictions on tenure are particularly onerous, either! And yes, Curmie is well aware that Abbott and his acolytes (and future governors of either party and their minions) are more than likely to do everything in their power to abuse the new, (intentionally?) vague, rules; that doesn’t mean that habitually failing to show up for class or being convicted of a serious crime are insufficient reasons for having tenure revoked. Expressing a view contrary to those of the university president, regents, or state governor (or even calling them wanker bastards) had damned well better be protected by tenure, however. We shall see. 

There is no question in my mind that there is a purpose to be served by inclusivity, and not simply for reasons of political philosophy. Broadening horizons has direct benefits: by learning about others, you also learn about yourself, and exposure to different cultures and perspectives can only result in more mature analysis. Maybe that comes in the form of an argument that alters your view; maybe it’s something you consider but ultimately reject, secure in the knowledge that you’ve considered a different solution to a problem. 

One of Curmie’s first publications in a scholarly journal was an analysis of what plays are included in dramatic literature anthologies. It came as no surprise that the works thus canonized were overwhelmingly written by white males. What was a little more eye-opening was the fact that the disproportionality was greater when I was writing the article in the early 1990s than would have been true two or three generations earlier. 

This was a problem, not only in the classroom, but also because the implicit understanding that these were the superior works also led them to be produced more often, thereby exacerbating the imbalance. I don’t want to bother to look up the exact numbers, but I’d guess that of the first 75 shows my department produced after my arrival at the university from which I recently retired, only only four or five specifically required any non-white actors. I directed two of them, “Master Harold”… and the boys and Trojan Barbie. Another one, the musical Hair, actually had one of the “black boys” of the song played by a white guy in a wig and dark makeup. Ew. 

There were, of course, plenty of roles that could be, and indeed were, played by non-white actors. But I do not reject outright the argument that a BIPOC actor faces a different challenge to play a character written as white, even if there’s nothing specific about race in either the character’s description or action. There may not be a significant difference, but that doesn’t mean it doesn’t exist. 

As I told my friend, if you’re teaching a course in the history of the modern theatre (as I did for a couple dozen times overall) and you don’t talk about William Henry Brown, Ira Aldridge, Lorraine Hansberry, Douglas Turner Ward, et al., you’re not doing your job. But you’re also not doing your job if, all things being equal, you spend an entire class period on Suzan-Lori Parks and five minutes on Tennessee Williams. 

And here’s where my commentary veers rightward. That article about anthologies I mentioned earlier came as a follow-up to a conference paper for a panel I organized on theatre textbooks. One of the panelists I recruited for that panel was an editor at Random House. A year or so later, I got a letter (these were the Olden Times, pre-email) from a different editor at Random House asking me to comment on the prospective contents for a dramatic literature anthology they were considering publishing. 

These were the days when “diversity” was based more on gender than on race, so publishers were scurrying to find plays by women to include in their anthologies. So far, so good, right? This book was to include a play by Susanna Centlivre (if, Gentle Reader, you’re asking “Who?,” you have plenty of company) but to omit Molière. The problem here is not the inclusion of Centlivre (although Aphra Behn would have been a better choice, imho), but rather doing so while excluding arguably the greatest comic playwright in history. 

This collection was, in other words, a good idea—recognizing the fact that women like Hrotsvitha, Sophie Treadwell, Rachel Crothers, Lillian Hellman, Lorraine Hansberry, Caryl Churchill, and many others deserve to have their work read and appreciated. But that admirable intention gets lost in the silliness of Molière’s absence. 

Similarly, it is difficult if not impossible to argue that there is no place in a university curriculum for, say, Critical Race Theory. Just as you can’t claim to understand theatre history if you can’t string together a couple of sentences about Ira Aldridge or Amiri Baraka, you can’t claim to understand the political history of the nation without at least encountering the work of Ibram X. Kendi or (before there was something called CRT) James Baldwin. 

But here’s the thing: You shouldn’t have to agree with them. The idea that faculty should have to conform to the credo that not being racist is insufficient (you have to be actively anti-racist, and prove it) is no different from the loyalty oaths of past decades, except the authoritarian impulse now comes from the left instead of the right. Similarly, I don’t want someone (administrator, politician, whoever) who doesn’t know an onnagata from a verfremdungseffekt telling me, even indirectly, what is and is not important to cover in a theatre history course. 

I can’t decide which is worse, though: telling people like me, who actively sought out diverse perspectives on the theories, literature, and production of theatre long before it became de rigeur to do so, that we aren’t doing enough because we think Molière is vastly more important than Centlivre, or to insist that someone teaching, say, math or physics, which have literally nothing to do with sociocultural perspectives, prove their anti-racist bona fides or risk not getting the job or tenure or whatever. 

It is indeed possible that someone in my discipline really does exclude the study of people or ideas that should be there, but that should lead to a discussion with a department chair, not a sweeping indictment of a professor’s presumed prejudices. The Modern Drama course I took as an undergrad centered exclusively on white male playwrights. But it stopped chronologically around 1950, so Lorraine Hansberry was excluded on that basis. Caryl Churchill’s first really significant play was first produced literally as I was taking that course; August Wilson’s wasn’t even written yet. Maria Irene Fornes wasn’t unknown, but she hadn’t yet written any of the works that now come most immediately to mind. (And so on.) 

Also, we studied only Western dramatists who had written multiple significant works, so that took Sophie Treadwell out of the picture. Yes, one could make a case for Lillian Hellman, but probably the most important playwright we didn’t read was George Bernard Shaw… because the prof didn’t like his stuff.  Curmie isn’t a huge fan, either, although he didn’t know that at the time.

Should the domain have been different, to include a broader demographic spread of playwrights? Maybe. But not inherently so. The fact is that it wasn’t until about the time I started work on my PhD that the Western theatre world wasn’t in fact completely dominated by white men. That’s simply a statement of fact. Were there women or BIPOC authors, actors, directors, etc., who would have been at least as successful as the white guys in a fairer society? Almost certainly. But that more equitable world did not exist, and the dominant Western theatrical artists were who they were. Cultural literacy in the E.D. Hirsch sense may be a problematic configuration, but it’s not unreasonable to expect functioning adults to have a basic understanding of canonical figures and their works. 

The only consolation in all this is that the art itself survives. We are indeed finding out more about wonderful artists, scientists, and other professionals who didn’t (or don’t) fit the White Guy paradigm. That’s a good thing, and the same impulse to search for information about these often unfairly overlooked individuals that drives those new discoveries is also behind the establishment of DEI offices. 

Curmie has a friend, a former student, who has gone into the Student Affairs side of university life. He’s now a director of residence life or some such title at a small university. He recently wrote on his Facebook page that DEI offices “… can help first-generation students navigate college life, or help nontraditional students integrate into the campus culture, or even advocate for improved handicapped accommodations…. While they mainly support students from marginalized backgrounds, I've never known a DEI office that is purely exclusionary. As one professional I know said, ‘white students are part of diversity, too.’” 

Yeah, maybe, except for the part about not being exclusionary. But whereas all of those functions—working with first gen students, nontraditional students, handicapped students—are indeed valuable, they can be handled by other offices. How does Curmie know? Because they were before DEI offices existed, still are to a large degree, and thus will certainly be in the future if there’s no DEI office. 

But with the exception of being another layer of high-salaried administrators gobbling up salaries two or three times those of tenured faculty, the problem isn’t DEI offices per se. Besides, most of those people will be transformed into associate deans or something and do pretty much the same thing they’re doing now, only a little more under the radar. Greg Abbott knows that, so he’s doing little more than playing to his base. It’s an exercise in cynicism all around. What it isn’t is “forward-thinking legislation,” whatever State Senator Brandon Creighton, the bill’s sponsor, might think (or pretend to think). 

The problem, I hope obviously, is not that some people prioritize the promotion of the ideas of folks from a particular demographic or political perspective. Indeed, to the extent that such views challenge dominant paradigms, they generate conversations that are the very essence of what educational institutions ought to be about. It’s the expectation that literally everyone—faculty and students alike—must conform (or at least pretend to conform) to a particular philosophy. 

The gap between the left and the right has widened in recent years. We live, to coin a phrase, in a house divided against itself. I need hardly mention here that I find myself far more often on one side of the political schism than on the other, but the dominant forces on my side of the fissure demand absolute and unequivocal adherence to 100% of their ideology. (So do those on the other side, or I might be tempted to cross over.) 

A couple of years ago, when I was still teaching full-time, my department floated a proposal that would have demanded that all students and faculty in the program read a particular set of “anti-racist” books, in order (!). Curmie noted that it’s hard enough to get students to read the plays or textbooks we assign. Oh, and I called the proposal “Stalinistic.” I stand by that analysis. 

It was then, not when the university proposed a buy-out, that I first contemplated retirement. Actually retiring may have been a cowardly response, but I have no regrets. I’m note sure that academia is (yet) hopelessly corrupted, but in this place at this time, I’m happy to be emeritus. 

Side note: my friend told me that an editorial in the Dallas Morning News made essentially the same points I did, that DEI should be revised rather than eliminated. But it’s behind a paywall, so I’m just taking my friend’s word for it.

Testing the Limits of Academic Freedom at Marquette

Curmie had no sooner returned to writing than a case that he’d written about years ago (here, here, and, very briefly, here) returned to the public sphere. The Wisconsin Supreme Court ruled 4-2 to overturn a lower court ruling and reverse the firing of Professor John McAdams of Marquette University.

Dr. John McAdams

You can read the synopsis in the trial transcript linked above, or there’s good coverage in a series of stories in the Chronicle of Higher Education, but they’re behind a paywall (one of their stories nonetheless linked here). There are, of course, good stories in Inside Higher Education and in the Milwaukee Journal Sentinel. There’s also a lengthy play-by-play in the form of the letter from Dean Richard Holz to Dr. McAdams, explaining the rationale for the university’s initiating procedures to revoke the professor’s tenure and terminate his employment. Here are the basics:

In October of 2014, Marquette grad student Cheryl Abbate was teaching a class in Theory of Ethics. The subject of gay marriage came up in discussion, and Abbate allegedly proclaimed that “everyone agrees on this, so there’s no need to discuss it.” A student approached her after class, surreptitiously (and unethically, if not illegally) recording the interchange. The student, who opposed gay marriage, was upset that Abbate essentially described any such dissent as homophobic, and that she suggested that he drop the class if he was going to make such comments. Abbate then asked if the student was recording the conversation; he tried lying about it, but then admitted that he was, and threatened to take the issue to her “superiors.”

He subsequently brought the recording to various university officials, and ultimately to his advisor, Dr. McAdams, who, with the student’s permission, wrote about the incident in a blog post, identifying Abbate by name and linking to her own blog, which included her contact information. McAdams trots out the trite, but not meritless, complaints adopted by many on the right, that “Opinions with which [liberals] disagree are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up,” and that “in the politically correct world of academia, one is supposed to assume that all victim groups think the same way as leftist professors.” McAdams also quoted Charles Krauthammer’s assertion that the “appropriate term” for the pursuit of such an agenda is “totalitarianism.”

McAdams also sent the blog post to Campus Reform, a conservative site that seeks, in its own words, to “expose liberal bias on America’s campuses.” The piece was subsequently picked up by Fox News and other larger media outlets. Whether because of or independent of this added circulation and publicity, Ms. Abbate was subjected to no little abuse, some of it even threatening; she transferred to the University of Colorado. (The transfer may or may not have been independent of the situation described here, but certainly these events did little to keep her at Marquette.)

Dean Holz suspended McAdams (with pay) in December, and then started the process to fire the professor in January. The case was forwarded to a hearing committee of seven tenured faculty, who unanimously agreed that McAdams had “violated his obligation to fellow members of the Marquette community by recklessly causing harm to Ms. Abbate, even though that harm was caused indirectly. The Committee concludes that the harm to Ms. Abbate was substantial, foreseeable, easily avoidable, and not justifiable.”

Of course, one of the committee members, Lynn Turner, had, prior to being named to the committee signed an open letter in the Marquette Tribune, in which the co-signers 

deplored the treatment of… Ms. Abbate and deeply regret that she has experienced harassment and intimidation as a direct result of McAdams's actions…. Perhaps worst of all, McAdams has betrayed his role as a faculty member by pitting one set of students against another, by claiming the protection of academic freedom while trying to deny it to others, and by exploiting current political issues to promote his personal agenda.

Yet somehow the committee managed to unanimously (!) reject the idea that Dr. Turner should recuse herself. Despite this, the committee concluded that:

…the suspension of Dr. McAdams… with no faculty review and in the absence of any viable threat… was an abuse of the University’s discretion granted under the Faculty Statutes. The purpose of the suspension appears [to have been] to impose a summary sanction on Dr. McAdams to satisfy the demands of external and internal audiences. This is an improper use of the interim suspension power that violated Dr. McAdams’ right to due process under the Faculty Statutes.

That said, the committee recommended suspension, and the university appeared willing to accept that outcome, provided Dr. McAdams showed a little contrition. McAdams rejected that solution, however, and sued. So here we are.

There are no good guys here. The undergrad student illicitly recorded a conversation he had no right to record, and at least initially lied about doing so. Ms. Abbate did indeed use her status as instructor to stifle the free expression of ideas. Dr. McAdams unquestionably behaved unprofessionally by identifying a graduate student (even though she was functioning as an instructor at the time of the incident) by name in his blog, and his active dissemination of the essay to partisan websites was reckless. (This from the Don’t Shit Where You Eat files.) Dean Holz made some allegations he had precisely zero chance of proving in his letter to McAdams, and accuses McAdams of implying (!) things that aren’t true; worse, his assertion that McAdams should have consulted with a litany of university officials before publishing his blog piece really is an attempt to chill free speech and academic freedom.

Had Dr. Turner a modicum of ethical sensibility or indeed common sense, she would never have agreed to serve on the committee, and the other committee members should never have supported her refusal to recuse herself. The majority opinion of the Supreme Court, written by Justice Daniel Kelly, declares that “The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract's guarantee of academic freedom.” “Undisputed”? Yeah, no.

Amid all this slop there is backstory: McAdams has been a thorn in the Marquette administration’s side for years, and had been admonished for numerous incidents in the past. In his own words, “There is a history here. I have in numerous instances before made trouble for Marquette by exposing things going on at the university.” But all this does is add to the list of offsetting arguments. Marquette claims, for example, “He has more than 3,000 blog posts over more than a decade and was never disciplined for any view he had on any subject. If he had written the exact same blog post and left the graduate student’s name and contact information out of it, he would not have been disciplined.” Of course, this could just easily have been the last straw, or the university may have been looking for a way to get rid of this cranky professor who was already past normal retirement age.

Significant support appeared on both sides: the American Association of University Professors (AAUP) and the Foundation for Individual Rights in Education (FIRE), for example, sided with Professor McAdams, whereas the Association of Jesuit Colleges and Universities favored the university. Ultimately, we’re looking at a series of “yes, but” arguments.

Professor McAdams was charged with causing harm to Ms. Abbate, although he made no threats, and indeed stopped short of suggesting any remedy for her “misconduct.” It is reasonable to suggest that he should have foreseen the potential for others to threaten her, but it’s also true that, short of incitement, he ought to have the right to express his own opinion; the actions of others are beyond his control. As Conor Friedersdorf of The Atlantic wrote three and a half years ago,

Holtz’s [sic.] decision to hold McAdams responsible for her harassment sets an alarming precedent: that faculty members will be held accountable not only for their words, but for any efforts to intimidate or harass those they publicly criticize. By this logic, a professor who criticized a college football player accused of rape, or a fraternity member who chanted “No means yes, yes means anal,” or a college Republican running an “affirmative-action bake sale” could be stripped of tenure based partly on whether that student got nasty emails. Only myopia can account for failure to see the threat to academic freedom.

Professor McAdams has freedom of speech rights guaranteed by the 1st Amendment and by the tenets of academic freedom implicit in the granting of tenure. These rights are not limitless, however. In Marquette’s case, tenure may be revoked in the case of “serious instances of ... dishonorable, irresponsible, or incompetent conduct.” So, does this case qualify? Frankly, it’s a close call. The conduct for which Ms. Abbate came under fire from Dr. McAdams was performed in her capacity as a course instructor. Still, she was also a graduate student, and the Dean’s desire that senior faculty should mentor rather than publicly condemn students is not misplaced. The nationwide effort to grant graduate teaching assistants employee status (for the purpose of collective bargaining, for example) may actually have worked against Ms. Abbate in this matter.

It is also true that, as a Catholic university, Marquette can reasonably expect its faculty to adhere to a stricter set of principles than a public institution could demand. In other words, were McAdams not tenured, it would be pretty clear that the university could fire him if they so desired. And the faculty committee’s unanimous recommendation ought to count for something. As Justice Ann Walsh Bradley wryly notes in her dissent, “Apparently, the majority thinks it is in a better position to address concerns of academic freedom than a group of tenured faculty members who live the doctrine every day.” Still, the majority’s claim that such a hearing board cannot substitute for the actual judicial system of the state also rings true.

Basically, it all boils down to this: John McAdams is, to coin a phrase, an asshole. But so is Curmie, at least from time to time, and he prefers not to be fired for that. And Curmie is a tenured professor who writes a blog the higher-ups might not always like, so there’s a little bias here, although too many of the arguments—at both the university and the judicial levels—seem couched in liberal/conservative terms, and Curmie certainly doesn’t share Professor McAdams’s politics.

Are the free speech rights of tenured academics absolute? Of course not, although the burden of proof to restrict those rights had better be pretty significant. Did McAdams behave unprofessionally? Absolutely. But did he behave sufficiently unprofessionally to have his tenure revoked? Tough call, but it’s the tough calls that matter. If, Gentle Reader, you look at Curmie’s earlier posts on this topic, you’ll see a full-throated endorsement of Dr. McAdams’s position. That resolve has dwindled a little over the last couple of years, but, ultimately, Curmie remains more of a civil libertarian than a liberal when it comes to the 1st Amendment. Free speech is messy. That’s rather the point. I’m going to endorse the Wisconsin Supreme Court decision.

Academic Freedom and Reasonable Doubt: The Johnny Eric Williams Case

Professor Johnny Eric Williams

This started out as a comment to a post by Curmie’s netpal Jack Marshall over at Ethics Alarms, entitled “Sought: An Ethical Reason Why This Professor Should Not Be Fired Immediately, And Never Hired For A Teaching Position Again, Anywhere.” Soon, however, my reply took on a life of its own, extending well past the length of a mere comment on someone else’s post, sort of demanding multiple links, and, well, putting my lengthy commentary on current events in higher education on someone else’s blog instead of my own.

The background is this: on the evening of Sunday, June 18, Trinity College (CT) associate professor of sociology Johnny Eric Williams took to social media to re-post an article from Medium by “Son of Baldwin” with the shall we say provocative title of “Let Them Fucking Die.” There’s a preface there now: “NOTE: This essay is in the context of bigotry and is speaking about bigots. If you aren’t a bigot, then it doesn’t apply to you. But, if you happen to feel hit, then holler, dog.” One suspects that was a later add-on, but in the absence of a screenshot of the post as it first appeared (maybe there’s one out there?), Curmie can’t say for sure.

What is clear is that Son of Baldwin is less than pleased with the state of race relations in the country right now. His prose is more fiery than most, but ultimately he presents a rather familiar argument:

In a battle between the moral and the immoral, the immoral will always win because they have no qualms about not abiding by the rules. Whereas those of us who imagine ourselves as moral gladly die at the immorals’ hands because we think better glories await us in some other, unseen realm. We, the moral, are terrible at memory. We never remember who created these rules and for what purpose. The immoral created morality so that we would accept their abuse and never even dream of retaliation. Like any drug white/cisgender/heterosexual people have ever given us, we get high on this notion that forgiving them after they slaughter our grandparents in churches, obliterate our siblings in the streets, and mangle our children in playgrounds makes us better people than they.

His screed concludes:

Saving the life of those that would kill you is the opposite of virtuous.

Let. Them. Fucking. Die.

And smile a bit when you do.

For you have done the universe a great service.

Ashes to ashes.

Dust to bigots. [emphasis in original]

Williams was subsequently to claim that his re-posting of Son of Baldwin’s piece was a response to the police shooting of Charleena Lyles in Seattle on Sunday morning. That would make sense in terms of timing, but given the fact that the article on Medium opens with a photo of recent shooting victim Rep. Steve Scalise and an accusation of racism and homophobia against him, commentators who argue that Williams seems to be endorsing Son of Baldwin’s implicit claim that Rep. Scalise somehow deserved to die can be forgiven their misinterpretation… if indeed it is such.

Screen capture of the posts that led to the controversy.

Anyway, Williams re-posted Son of Baldwin’s essay with the comment, “It is past time for the racially oppressed to do what people who believe themselves to be ‘white’ will not do, put an end to the vectors of their destructive mythology of whiteness and their white supremacy system.” And he added the hashtag “#LetThemFuckingDie.” A few minutes later, he added, “I’m fed the fuck up with self-identified ‘white’s’ daily violence directed at immigrants, Muslim, and sexually and racially oppressed people. The time is now to confront these inhuman assholes and end this now.”

Needless to say, this set off a firestorm in right-wing echo chamber circles. Calls for Williams’s firing were immediate, and (of course) there were threats of violence against him and even his family—you know, the kind that mouthpieces of the right claim never happen to leftist firebrands. Let’s be clear: Prof. Williams, contrary to the assertion in an otherwise thoughtful editorial in the Hartford Courant, did not “[create] an unsafe atmosphere at the college.” Other people did. Just as Ann Coulter and Milo Yiannopoulos are not responsible (short of actual incitement) for the violence their mere presence on a college campus might engender, neither is Prof. Williams to blame for the fact that people who disagree with him threaten violence. It is important to note here that neither Williams nor indeed Son of Baldwin advocate violence. The latter’s advocacy for selective non-intervention and the former’s condoning of, if not actual support for, that position may be abhorrent and unethical (Curmie thinks so), but it falls far short of incitement.

Just yesterday, I wrote in a comment on another of Jack’s posts (one in which Curmie’s insistence that the higher education classroom is not, in fact, a site of leftist propaganda was honored as “Comment of the Day”) that the Foundation for Individual Rights in Education generally supports conservatives, but not because they’re conservatives. This statement is an ideal example of what I meant. Whereas as FIRE release concentrates more on the threats that Professor Williams has received (and that other faculty who have taken controversial positions in recent times have received), they do explicitly endorse a statement by the chair of the American Association of University Professors’ Committee on Academic Freedom and Tenure:

There is only one option consistent with academic freedom. Professor Williams is entitled to his right to express his personal views on social media and the university has the right to differ with those views. But Trinity College must defend the professor’s right to express them without fear of retaliation by the institution. Trinity College should refuse to let the sort of threats and intimidation directed against Professor Williams and the entire campus achieve their insidious aims.

Despite literally dozens of false media reports to the contrary, Professor Williams did not write the screed that generated the current brouhaha. Nor did he explicitly endorse it, although his re-post of someone else's blog piece could be interpreted that way. What he said himself is angry and vulgar, but Curmie sees it as well within the realm of protected speech that ought not inspire more than a raised eyebrow from university officials... except, of course, for the hashtag, which on the one hand merely references the article’s title and on the other seems to approve of the content.

And that’s the key. Does Professor Williams’s post actually advocate what the right-wing media storm says it does? Or was it merely an example of a moment’s sloppiness, worthy of an apology and nothing more? Does Professor Williams conflate whiteness and bigotry, or did he merely re-post an article which appears to do so? Does it matter that Professor Williams was not acting as a representative of the university when he made the offending remarks? I know of a case in my own experience in which a common colloquial expression was interpreted literally and led to accusations of advocating violence. Is this a variation on that disturbing theme? 

The answer to all these questions, to me, is unclear, meaning that those of us who don’t know Prof. Williams, haven’t read his scholarly work (which presumably is of a standard that a respected institution like Trinity considers worthy of a senior faculty member), haven’t sat in on his classes, aren’t equipped to make such decisions.

The person who is in the best position to make those determinations is Trinity President Joanne Berger-Sweeney, who seems to be handling the situation with finesse: she shut down the campus for the safety of all and re-opened it when it appeared there was no imminent threat. She issued an official response which states that Son of Baldwin’s call for “indifference to the lives of bigots” is “abhorrent and wholly contrary to Trinity’s values.” She argues that the use of the offensive hashtag was “reprehensible and, at the very least, in poor judgment. No matter its intent, it goes against our fundamental values as an institution, and I believe its effect is to close minds rather than open them.” But she also insists that Trinity “[continues] to uphold our fundamental belief in academic freedom and support our community members’ constitutional right to free speech,” and deplored the threats to Professor Williams. She forwarded the case to the Dean of the Faculty, who will advise her on “whether college procedures or policies were broken.” This strikes Curmie as absolutely the right path to take. Let’s see what the actual facts are, if this case is an anomaly or fits a pattern, if Professor Williams can muster a more persuasive apology than simply arguing that he did not intend to incite violence (well, of course he didn’t, but that’s not the point).

There is also a petition of support for Professor Williams. Like many such documents, it started off locally (it opens “We the undersigned faculty at Trinity College”) but has expanded to include signatories from well outside the college. Importantly, it stands alongside the FIRE statement in affirming academic freedom and, specifically, the use of social media as subject to its protections. The drafters of the petition are correct that many of the attacks on Professor Williams are founded on distortion and misrepresentation. That doesn’t mean they all are, of course, but the use of intimidation and fear-mongering is an all-too-familiar tactic of what one of Curmie’s favorite professors used to call the “foam-flecked brigade” of any ideology. This time, it’s the easily-incited right. Next time, it will be the equally malleable left.

Like virtually everyone else who has opined on this matter, Curmie is ignorant of a lot of the details of the situation. What I do know is that revoking tenure without absolute certainty of the legitimacy of doing so is at least as great a threat to higher education as allowing a single renegade professor (assuming he even fits into that category) to remain employed would be. Tenure is not a guarantee of a job for life. It is, rather, a nominal assurance of academic freedom. In terms of a situation like this one, it merely shifts the standards for dismissing a professor from, loosely speaking, “preponderance of evidence” to “beyond reasonable doubt.” 

I have reasonable doubt. I'm not sure this qualifies as the ethical defense of not firing Prof. Williams Jack rhetorically seeks, but Curmie kind of thinks it does.

The Creep Who Shouldn't Have Been Fired

A decision by the Regents of the University of Texas system has spawned a lawsuit by a former associate professor of economics at the University of Texas – San Antonio. Ronald Ayers was fired four years ago from a tenured position at UTSA for viewing pornographic material on his office computer. He appealed to a five-member faculty panel, who ruled that whereas Dr. Ayers had indeed accessed “sexually explicit” material, the sites he visited were not “obscene,” which was the standard set by university policy (the university has subsequently changed its standard to “sexually explicit”). The tribunal voted, apparently unanimously, that Ayers had exercised poor judgment but should not have been fired.

Ultimately, however, it fell to the Regents to make the final decision—or, given the lawsuit, the penultimate decision. They argued that Ayers’s visiting of porn websites was neither job-related nor incidental; Regent John Barnhill declared that Ayers had been “dishonest and demonstrated a lack of integrity in responding to the charges.” The Regents voted to overturn the findings of the faculty panel and to support the initial decision of UTSA President Ricardo Romo.

A point of clarification before I continue: whereas I teach at a non-flagship state university in Texas—a place very similar in many ways to UTSA (who is in our athletic conference, for example)—my institution is not affiliated with the University of Texas system. I am not, therefore, answerable to them in any way. So I am neither risking anything in criticizing them nor sucking up in supporting them.

This case is a lot more complicated than it might first appear to be. Whereas Ayers was an award-winning teacher, and was described by his department chair as “one of our prime teaching assets,” he was apparently a real slob: his office was not merely strewn with books and papers (as, I freely admit, is mine), but it smelled of rotting fruit to the point that it was described as “an office that no student should be asked to enter.” Some the details were spelled out in 2008 by Melissa Ludwig of the San Antonio Express-News, who also did the follow-up reporting linked above. [Note: I have been unable to find this article on the Express-News site; it is, however, quoted in its entirety by two separate blogs, so I’m pretty confident of its provenance.]

This whole brouhaha started when a graduate student reported the sound of a woman moaning behind Ayers’s closed office door; “Then she heard Ayers say, ‘Oh, my God. ... Oh, my God!’ The door opened and footsteps made their way toward the bathroom. When Ayers returned, she heard him muttering ‘Bad, bad, you're so bad.’” She contacted the police “a couple weeks later,” suggesting that Ayers had been masturbating in his office. Ayers says the incident never happened.

University officials investigated, however, and a scrub of Ayers’s office computer revealed “‘a number of images and video of explicit sexual material,’ according to the police report. Cached files showed he had been accessing pornography for at least several months, and some of the Internet addresses included the word ‘teen.’” Of course, the implication is that Ayers had accessed child pornography, which is by definition illegal. There appears to be no evidence that he actually committed any crime, however.

Ayers also sent e-mails to a colleague at another university, describing sexual fantasies about students, recounting his ogling of the “huge chest puppies” of one, saying he plans to “get together with” another, declaring yet another an exhibitionist who flashed her thong underwear at him while he was teaching—but “I have sort of ignored her since she stopped the provocative mode of dress.” These may be, as Ayers’s lawyer claims, “boy-talk,” but they’re certainly suggestive of a potential problem if he was in fact granting or withholding extra help to female students based on the way they looked or dressed.

Unlike the other allegations against him, these would seem likely to have a direct bearing on Dr. Ayers’s ability to do his job. Curiously—or perhaps not—these e-mails seem to have played no role in the Regents’ decision. And the fact that there appear to have been literally no complaints by students—even in an environment that would seem to encourage such candidness—does in fact suggest an ability to separate his fantasy world from his life as a professor.

The whole mess is ultimately centered on Ayers’s use of a university computer and their network to engage in clearly personal activity. If there were evidence of child pornography, I’m pretty sure we’d have heard it by now; the distinction between “pornographic” and “obscene” is not merely semantic, and I strongly suspect that the sites visited by Prof. Ayers fell short of the latter description. Which means that the only legitimacy to the university’s case is a violation of a rule against using a “government-owned” computer for his forays into netporn.

You can’t even boot up a computer connected to our university’s system without agreeing to abide by a rule prohibiting the personal use of that computer. This is, to be sure, a regulation more honored in the breach than in the observance. (And yes, I do know that Hamlet meant something different by that phrase.) One should always be suspicious of “everyone is doing it” arguments. Not everyone cheats on their taxes. Not everyone drives 60 in a 55 zone. Not everyone calls in sick when they just want a day off. But everyone, and I do mean everyone, uses a work computer to send personal e-mails, check Facebook, watch movies on Netflix, play solitaire, or see what the weather is going to be like tomorrow. The prohibition exists for one reason only: to have a violation of institutional policy to wave at someone the university wants to get rid of for whatever reason.

Ayers and his lawyer are no doubt correct in claiming that other members of the faculty use university computers, many of them more than “incidentally,” for personal activities, whether or not there’s any legitimacy to the assertion that university officials know (or should know) that other UTSA faculty access porn but Dr. Ayers along has been singled out for prosecution. It is indeed unfair to fire one faculty member for the same thing other are allowed to do without interference. Note: I am not saying that other faculty are watching porn, but I see no compelling evidence that Dr. Ayers did anything illegal. In that sense, his recreational activities “at the end of a long day” are no different from those of his colleague down the hall who watches the replay of last night’s Jon Stewart show.

Let’s review the bidding. Ronald Ayers lied about accessing porn on his office computer. His subsequent claims to have been engaged in a research project, even if true, are irrelevant, given a provision that such use of university computers requires specific advance permission. He has boasted to a friend about behavior that, if he actually did what he says he did, ought to get him fired.

Conversely, the university can’t really prove a violation of university policy (there is indeed a difference between “sexually explicit” and “obscene”), and an ex post facto change in wording doesn’t change that. They smeared one of their own faculty with insinuations of viewing kiddie porn, and probably rendered him unhireable by anyone else. They, meaning the Regents, overturned the findings of a faculty tribunal, which is normally the last step in the process. I’m not suggesting (contrary to, say, the Tony Kushner honorary degree case at CUNY) that the Regents over-reached in doing so. I’m saying they made the wrong call, basing their decision on the “ick” factor rather than on the policies they themselves enacted. There is, in short, enough evidence against Dr. Ayers to deny him tenure, but not to revoke it.

Ronald Ayers is a liar, a slob, and a creep. I wouldn’t vote for him for elective office, and I have no desire to share a pitcher of beer with him. Irrespective of his skill in the classroom, I wouldn’t advise any student, especially an attractive young woman, to enroll in any of his courses. He is indeed an embarrassment in many ways to UTSA.

And he ought to still have a job.