Retaliation Is Not a Right

The Indiana Court of Appeals sided with Purdue University at Calumet last week in rejecting an associate professor’s claims that the institution violated his free speech and other rights. The case centers on the political scientist’s inflammatory comments in the classroom and outside it, many of which deride Muslims. The professor, Maurice Eisenstein, is still teaching at Calumet. But Eisenstein objected to how the university sanctioned him in 2011 and 2012, following complaints from professors and students.

An initial university investigation resulted in a letter of reprimand for what Calumet deemed to be Eisenstein's retaliation against fellow professors who faulted his speech. A second resulted in Calumet telling Eisenstein to remove the link to his personal blog from his official email signature block.

Eisenstein plans to pursue his case against the university. “I’m dissatisfied with the results and I will appeal,” he said on Twitter last week.

Eisenstein sued Purdue and several individual colleagues in 2012 after fellow professors and students formally accused him of discrimination based on his comments on campus and on his blog. In one instance, in 2011, a student recorded Eisenstein making numerous statements about Muslims and blacks in his Introduction to Judaism class, according to court records. Those include, “Muslims kill everybody else,” “Nothing happened to blacks in the 1960s -- not real problems” and “Except for raping 4-year-olds, Muslims are not good for anything.”

On his Facebook page, Eisenstein called one student who reported his comments to his department chair a “Jew hater,” according to court documents (the student had already dropped the class and begun an independent study). Calumet eventually received other, similar complaints against Eisenstein; one was filed by the Muslim Student Association and five by other faculty members. The rest were from a handful of individual students.

As momentum to terminate Eisenstein grew, students and professors started a petition against him and two professors amended their complaints, claiming retaliation. In one instance, Eisenstein allegedly said to a colleague, “Now I know why your son committed suicide,” after she said hello to him on campus (Eisenstein has denied this). Eisenstein also wrote in an email that his dying mother had cursed a second colleague and that he was now “cursed and therefore untouchable.”

The university investigated the claims against Eisenstein, with an initial finding that he had violated the campus antiharassment policy by retaliating against one professor and harassing the student who’d withdrawn from his class. A faculty panel considered the claims against Eisenstein, who was present at the hearing, and made recommendations about discipline. As a result of that process, Calumet’s chancellor determined that Eisenstein had not violated the policy -- except with respect to the two professors’ retaliation claims.

Letters of reprimand reflecting that decision soon went into Eisenstein’s file. He appealed the disciplinary action, but the appeal was denied. Eisenstein told members of the news media and wrote on his blog that he’d been cleared of all nine complaints, however, according to court documents. One professor against whom he’d retaliated told the Faculty Senate that Eisenstein had in fact been reprimanded in relation to the retaliation complaints.

In spring 2012, Eisenstein filed a lawsuit alleging "administrative violations” on the part of Calumet, civil rights violations (including those of thought, speech and religious opinion), and violations of his right to privacy. A trial court granted Purdue’s right to dismiss the case. But shortly before that, a sixth professor filed a complaint against Eisenstein with Purdue, citing a blog post Eisenstein had written called "Purdue Professor Yahya R. Kamalipour -- How Anti-American?” Calumet investigated the complaint and told Eisenstein to remove the link to his blog in his university email signature block, saying the blog didn’t meet university “civility standards.” It did not tell him what he could and could not say on the blog, however.

Eisenstein soon filed an amended lawsuit alleging, among other things, violations of his First Amendment rights and conspiracy to violate his civil rights.

In 2016, a trial court denied both Eisenstein’s and the university’s motions for summary judgment in their respective favors. The case proceeded to the state appeals court. In the unanimous decision for the three-judge panel, Judge Michael Barnes wrote that there was no evidence that anyone had conspired to inflict emotional harm on Eisenstein, and that the professor’s objections to the antiharassment policy (namely that it was “vague”) were not grounds for his breach of contract claim. That’s because the policy was not part of his employment contract, Barnes wrote.

Regarding the free speech claims, Barnes wrote that Eisenstein “seems to argue that anything he said to [his colleagues] should be protected by the First Amendment.” Moreover, he wrote, Purdue's antiharassment policy “specifically provides that it does not apply to speech or conduct protected by the First Amendment. The conduct here was clearly retaliatory, and Eisenstein admits that it was in response to the complaints.”

For the record, Purdue's antiharassment policy addresses harassment "in all forms" and prohibits retaliation for any related claim. But it also reaffirms Purdue's "commitment to freedom of speech as guaranteed by the First Amendment. Accordingly, any form of speech or conduct that is protected by the First Amendment is not subject to this policy. The university reaffirms its commitment to academic freedom, which is essential to its educational mission and is critical to diversity and intellectual life."

Brian Zink, university spokesperson, said via email, “We appreciate the court’s careful review and thorough opinion. We believe this outcome was important for maintaining a healthy environment for dialogue on our campuses while protecting from retaliation those who participate in university-established grievance procedures.”

Eisenstein did not immediately respond to a request for comment via email.

The Foundation for Individual Rights in Education has previously appealed to Calumet on Eisenstein's behalf. “This is not the first time and it won’t be the last time we will see a university punish a student or professor for constitutionally protected speech on Facebook,” Greg Lukianoff, president, said upon Eisenstein's initial filing in 2012. “Professors at public universities should not have to go to court to defend their free speech rights.”