We have had a number of posts about university instructors being fired for presenting materials that make students uncomfortable. Recent developments are alarming. Aggrieved students bypass internal university grievance procedures and reach out to powerful politicians who then contact university administrators and demand a head on a platter. University administrators not only comply; they aid and abet gross violations of the principles of free speech and academic freedom. Faculty are placed on leave; contracts are not renewed. In today’s case, the university administrator is the politician, bypassing the intermediate step.
We posted about two such terminations of instructors in January.
We posted about an instructor who was terminated from the University of Indiana in July.
We posted last year about a tenured professor fired for her anti-Zionist views.
This time, the news comes from Florida. As David Ovalle reports for The New York Times, Vinita Prabhakar (above) was fired from her teaching position at South Florida State College because at least one student was made uncomfortable by the subject-matter of a short story that Professor Prabhakar assigned. Word of this somehow reached the college’s president Fred Hawkins (below), a former state representative and ally of Governor Ron DeSantis, who called Professor Prabhakar in for a meeting. One day later, Mr. Hawkins suspended Professor Prabhakar with pay. He then informed her that her contract would not be renewed. According to The Times, Mr. Hawkins holds “no advanced college degrees and became eligible only after the board of trustees lowered the position’s educational requirements.”
Professor Prabhakar has filed suit. You can find her complaint here. She alleges violations of her First Amendment rights based on retaliation for protected speech and for content and viewpoint discrimination. She also alleges a violation of Florida’s Campus Free Expression Act. I can’t speak to the strength of these legal claims. From the perspective of contracts law, if you have a one-year agreement, there aren’t very many situations in which you could force your employer to renew that one-year contract.
However, in this case, it may be that statutory and constitutional grounds exist to say that the university cannot refuse to renew an instructor’s contract for an improper reason, and for better or worse, Mr. Hawkins is being completely transparent that his reason for terminating Professor Prabhakar is improper.
Things would be different if the teaching material were obviously inappropriate and served no clear pedagogical purpose related to the course. But this is not a close call. The material in question is widely used, including by Professor Prabhakar for the past ten years. If she made an error in judgment, the remedy may be to ask her to change her material, which she was willing to do, according to the complaint. But that should not even be necessary, especially where, as here, her department chair and colleagues have no objection to her teaching materials.
University instructors should not be fired whenever they give offense to some university administrator who has no expertise in their subject matters and lacks qualifications to review their teaching methods. At least not if universities are to serve their mission of academic training as well as the inculcation of values relevant to living in a democratic society comprised of people with differing perspectives.
One of the first cases I teach in my first-year contracts course is Harris v. Ramos, which is a one-page trial court opinion about whether the defendant, identified in the case as “a stripper,” breached a contract with the plaintiff. After meeting her at her place of business, plaintiff asked her for a date. He spent about $2000 on the date, which involved a lunch and some shopping. Afterwards, defendant drove plaintiff home, but when he exited her car, she locked the doors and drove away.
Before adding the case, which is recent, to my syllabus, I asked my Associate Dean if she thought it was okay. I added some cautionary language, and my Associate Dean approved. Here’s the cautionary language:
This subject matter of this case is unusual for a contract course. The court’s attitude towards the parties is not always as respectful as one would like and the judge might have used different language to describe the defendant’s profession. Nonetheless, the case illustrates some really important concepts relevant to contract formation, and it does it while presenting memorable facts and resolving issues succinctly. I have not come across a better case treating the subject and that is why I chose this one for inclusion in the course.
So far, the case has worked well as teaching material. The students have to engage with the doctrine, as the court was too decorous to simply dismiss the case on the ground that the subject-matter of the alleged agreement was illegal. And then we have a little bonus discussion of illegal contracts, a matter that we don’t delve into in detail until later in the course. The case thus provides the bonus gift of an early opportunity to distinguish between formation and affirmative defenses.
But the case also does something else. It allows me to say implicitly:
Welcome to law school, a new chapter in your educational experience. Here, we talk about serious matters, and we confront realities that we would prefer not to talk about in a room full of strangers. We do so here, because almost all lawyers have to do so at some point in their careers. Some do it on an almost daily basis. If you want to avoid having to think about aspects of the human condition that make you uncomfortable, maybe the law is not for you. So let’s work on getting over our squeamishness and learn to talk as adults about things that adults do.
I probably won’t teach the case again. When I return to teaching, I am going to use a casebook for the first time in twenty years, and no casebook that I know of includes Harris v. Ramos. I am using a casebook because in the last few years, students have begun to complain about my case selection, even though I mostly teach the standard cases. My colleagues who use casebooks do not get the same complaints, even though the cases they teach are also “too old,” or “too long.”
Until recently, students would express appreciation that I saved them hundreds of dollars by putting together my own materials, and they also responded favorably to recent cases that I added to the syllabus, like Harris v. Ramos and some other fun recent cases featured on this Blog. They no longer do so. Rather, they seem to think that because I teach my own materials I am just giving them my version of contracts. They’re not wrong, but that’s true of every contracts course. They just don’t notice the slant when it comes in bound materials. I have decided, in this respect, to follow the path of least resistance.
I feel guilty about it, because I am really committed to the bit, but it is a balancing act. At a certain point, if you push your preferred pedagogical approach on an unwilling audience, you lose your audience, and then your efforts hit a brick wall. There are advantages to teaching someone else’s materials. We’ll see if this old dog is up for some new tricks.