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Freshmen who entered Ohio State University at Mansfield in the fall of 2006 are about to graduate. A legal battle set off by the selection of a book for them all to read their first semester only came to a close on Monday -- when a federal judge rejected a former librarian's lawsuit against the university.
The former librarian, who said he felt pressured to resign after losing support at the university, was on a committee that was assigned to task of picking a book for the freshmen to read. During the deliberations, he suggested an anti-gay book -- and his recommendation and the comments he made about the book led to an intense debate among faculty members at the university. The librarian's case became something of a cause célèbre in some circles, with the librarian portrayed as being ostracized for his Christian, conservative views. But many faculty members said that the issue wasn't political correctness, but professional responsibility.
Monday's ruling rejected all of the librarian's claims and backed Ohio State, finding that there was no legal standing to challenge the university's policies and that the case did not raise free speech issues. And it is also the latest to apply a controversial Supreme Court decision that many national faculty leaders fear is being applied in ways that could limit academic freedom. In this case, the judge ruled that the work of the faculty committee didn't have the same legally protected status for academic freedom as would a professor's teaching or research.
Ohio State Mansfield in 2006 was joining the growing number of colleges that ask all freshmen to read the same book as part of their arrival at the institution. Scott Savage, then the head reference librarian and a self-described conservative Christian, joined a faculty committee charged with selecting a book. In discussions, he criticized some of the proposed ideas as political, and when other committee members said that wasn't a problem, he suggested a number of conservative texts, with the most discussion focusing on one of his nominations: The Marketing of Evil: How Radicals, Elitists, and Pseudo-Experts Sell Us Corruption Disguised as Freedom, by David Kupelian.
The book suggests that a gay conspiracy is hurting society. Publicity material for the book blasts the gay civil rights movement for changing "America's former view of homosexuals as self-destructive human beings into their current status as victims and cultural heroes" and says that this transformation campaign "faithfully followed an in-depth, phased plan laid out by professional Harvard-trained marketers."
Savage could not be reached for this article, and he has said that he suggested the book to make a point, not necessarily to have it assigned, but he engaged in a series of e-mail discussions with faculty members in which he defended the choice and rejected their view that assigning such a book would send a message of intolerance to gay students and faculty members. (They also noted that they never suggested banning anyone from reading anything, including The Marketing of Evil, only that more sensitive choices be made for a book to be assigned to every new student.)
As the e-mails flew across campus, several professors filed internal complaints against Savage, saying that they did not feel they could send gay students to the library to work with him knowing of his attitudes. Savage filed his own complaint, charging with harassment the professors who had criticized him. The university ended up rejecting charges brought against Savage, as well as those he brought. After first requesting and receiving a leave, Savage resigned. But in his lawsuit, he charges that he was effectively forced out by the lack of support he received, and suggests that the criticism he received violated his free speech rights and that the university's anti-bias rules were used to censor him.
William O. Bertelsman, a federal judge, rejected all of those charges. In his decision, he wrote that there was no evidence that Savage didn't freely resign, and noted that his supervisor defended his right to hold controversial views.
"Thus, the fact that Savage felt wounded by the criticism of several faculty members and unnerved by their challenge to his professionalism does not create an objectively 'intolerable' working environment, given that he had the strong support of his immediate supervisor and no indication from the dean that his job was in jeopardy," the judge found.
The 'Garcetti' Impact
The academic freedom questions were more complicated and involved an interpretation of the Supreme Court's ruling in Garcetti v. Ceballos, a suit by a deputy district attorney in Los Angeles who was demoted after he criticized a local sheriff's conduct to his supervisors. In the ruling, the Supreme Court found that public employees, when speaking as part of their official duties, do not have the same First Amendment rights as citizens who speak out on various issues. Faculty groups had feared that such a ruling would limit the academic freedom of faculty members at public colleges and universities, and Justice David Souter raised this issue in a dissent in the case.
But Justice Anthony Kennedy, in the opinion in the case, suggested that the ruling need not apply to cases involving academic freedom. "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
While that aside pleased faculty groups, they say that judges have started to ignore it and to apply Garcetti to public college faculty members in dangerous ways. In the Ohio State Mansfield case, the judge recognized that academic freedom issues could be relevant, but said that that they aren't a factor in cases of the work of a faculty committee.
Judge Bertelsman noted that Justice Kennedy specifically cited professors' scholarship and teaching as potentially work that should not be covered. "The Garcetti court recognized no broader exception to the rule it propounded," Bertelsman wrote. "Savage’s recommendation of a book for a book list cannot, in the opinion of this court, be classified as 'scholarship or teaching,' however. The recommendation was made in the line of duty, but it was made pursuant to an assignment to a faculty committee. This court holds that, without exceptional circumstances, such activities cannot be classified as 'scholarship or teaching' in the Garcetti sense." (Generally, faculty groups argue that governance activities require the same commitment to free speech as do research and teaching, but that argument didn't sway the judge.)
David French, senior counsel of the Alliance Defense Fund, a group that has defended the rights of religious individuals and that backed Savage in this case, said via e-mail: "We are disappointed that the federal district court applied Garcetti to further limit academic freedom."
Adam Kissel of the Foundation for Individual Rights in Education, said: "Debate over which book should be assigned to students is an academic matter protected by academic freedom. The overall e-mail conversation, however, seems to have strayed far beyond that topic."
Ohio State officials said they were pleased with the ruling. Many of the faculty members who sparred with Savage said that they felt personally vulnerable in the case as they were criticized by some for being anti-Christian. Many also said they felt the case was an attempt to undercut their academic freedom to reject the selection of an offensive, anti-gay book -- and that the publicity that the case received was an attempt at intimidation.
One faculty member who was involved in the case, and who asked not to be identified, said via e-mail: "In this sound, astute decision, the court affirms that the university's harassment policy was never used -- ever -- to punish Savage's speech. It determines that Savage quit his job voluntarily and was not discharged. It upholds the conduct of both the administration and faculty in exercising their own responsibilities and freedoms as perfectly consistent with the law. Given the reams of distorted media coverage about this case, this outcome could not be taken for granted, although we had every reason to expect it, based on the facts. We're very happy that the judge apprehended the matter so clearly. This is a terrific day for the state of Ohio, Ohio State University, and academic freedom."
In the end, at Mansfield, Savage's proposed book for freshmen was never assigned. They read David K. Shipler's The Working Poor.
