According to a letter signed by eleven graduate students at the University of Kansas, Professor Andrea Quenette is simply an awful instructor. The letter accuses Quenette of “frequent and extreme defensiveness, continued belittlement of graduate student feedback, and confrontational demeanor in response to anonymous evaluations of the orientation process.” Quenette allegedly committed “multiple violations of anonymity,” including one incident where she allegedly “exposed information about the personal location of a former [graduate teaching assistance] in the midst of a domestic violence situation.” The letter accuses her of “calling undergraduates ‘stupid’ and doubting their intellectual abilities,” of “mocking” graduate students’ “classroom policies and procedures,” and of joking “about suicide when asked how we should discuss a recent on-campus suicide with our students.” It ends with a demand that Quenette be fired.
The focus of the letter, however, is statements Quenette reportedly made in response to a student’s question about how to talk about racial issues on campus. “As a white woman I just never have seen the racism,” the letter reports Quenette saying in response, adding that “It’s not like I see ‘N[*****]’ spray painted on walls.” She also reportedly suggested that a large number of black students are leaving the campus because of poor “academic performance.” Quenette, for her part, questions whether she used the exact phrases described in the letter. She does admit to using the n-word, though she says she used it as an example of a racial slur that appeared on another campus and not as a slur directed at a student.
One of the letter’s final paragraphs, however, hints that this incident — or one like it — could trigger federal litigation, the outcome of which is far from certain. The letter offers a narrow interpretation of the First Amendment as it applies to Quenette’s in classroom conduct, and argues that the professor’s comments are not protected by the Constitution:
The U.S. Supreme Court ruled in Garcetti v. Ceballos that: “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Admittedly, the Court has not settled on the question of whether or not this analysis extends to “scholarship or teaching.” The situation in which the analysis most consistency does not apply is when a professor communicates as a “citizen speaking on a matter of public concern.” Dr. Quenette was speaking directly about discussing race in our classes while assuming her role as instructor of COMS 930, a course teaching new instructors how to teach well; she was thus speaking pursuant to her official duties and not as a citizen. . . . Therefore, her speech is not protected by the First Amendment and employer discipline for her remarks is not only legal, but necessary based on her breach of contract.
This is not a frivolous constitutional argument. Garcetti, a 5–4 decision joined only by the Court’s conservative wing, did hold that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Though, as the grad students calling for Quenette’s termination admit, Garcetti also acknowledged that “expression related to academic scholarship or classroom instruction” may enjoy additional First Amendment protection even when it is performed during the course of a government employee’s official duties.
Indeed, several lower courts have offered some guidance on how the First Amendment should apply if a public university tries to discipline a professor for their classroom speech. A case cited by the grad student protesters, for example, holds that a school may only take action in response to an instructor’s classroom speech if doing so is “reasonably related to legitimate pedagogical concerns” — a standard that encompasses “the parameters of the approved curriculum” and “academic norms.”
These vague standards raise as many questions as they answer, however. There is a wide range of academic debate that can and should be conducted on racial disparities, the nature of discrimination, and the impact of racial slurs, for example. Yet a professor who presents these debates in an incompetent or insensitive way can offend their students and undermine the educational environment they are supposed to foster. The law offers little guidance on when a professor’s insensitivity crosses the line that makes it a “legitimate pedagogical concern.” Indeed, it’s not even clear that this vague legal standard would be embraced by the Supreme Court if the justices were confronted with an appropriate case.
On Twitter, Michigan law professor Sam Bagenstos, a former senior civil rights lawyer in the Obama Justice Department, argues that nothing said by Quenette “is harassment or outside [First Amendment] protection” — though he acknowledges that Quenette may not have been a “great teacher” and that it “sure looks like she lost her class.” But if professors can be disciplined for classroom speech, so long as the discipline is “reasonably related to legitimate pedagogical concerns,” then it is not at all clear that Quenette is protected by the First Amendment. Universities are research institutions, so a school may reasonably decide to employ a sub-standard instructor who produces excellent academic work (professors may also enjoy additional contractual protections above and beyond what the Constitution provides, especially if they have tenure). Nevertheless, it is far from clear that the Constitution prohibits a public university from firing a professor if they determine them to be an incompetent teacher. Though the two issues are sometimes intertwined, pedagogical competence is separate from academic freedom.
For the moment, however, the law is very unclear in cases such as this one. There is no universal rule that has emerged from the lower courts, and the Supreme Court’s Garcetti opinion offers only the vaguest allusion to constitutional protections offered to academics and classroom instructors. Until the justices offer additional guidance, it’s likely that university administrators will flail about when faced with protests like the one that arose among Quenette’s students, not knowing what they are allowed to do legally even after they decide what the appropriate action is in such a case.