������ýapp�ٷ�

When I took employment law in law school, the professor warned us on the first day that personnel disputes would be among the most vicious we would encounter as lawyers because they are, by definition, personal. Louisiana State University has proved my professor’s point by launching a series of attacks against Professor Teresa Buchanan, who, in spite of having tenure, was fired from the university in June 2015 on the flimsiest of grounds: Her use of profanity constituted sexual harassment.

LSU’s action was absurd and, as it is discovering, indefensible. Yesterday, the American Association of University Professors (AAUP) . LSU was already on the AAUP’s list of censured institutions. Today’s report puts LSU in a select group of seven universities in the organization’s 100-year history whose attitude toward academic freedom and faculty rights is so dismal that the AAUP has been forced to publicize a second case meriting censure.

Buchanan’s problems started nearly two years ago, after a long and successful career at LSU. As Inside Higher Ed’s :

Buchanan’s story goes something like this, according to AAUP: she was hired as an assistant professor in 1995 and awarded tenure in 2001, centering her research on early childhood education. She earned strong reviews as a teacher and researcher and helped establish a new-teacher education program encompassing prekindergarten through third grade[...] By the spring of 2013, Buchanan was applying for promotion to full professor [and...] the Promotion and Tenure Committee voted in the fall of 2013 to promote Buchanan, as did the college dean’s advisory committee. The dean, Damon P. S. Andrew, in his recommendation noted that Buchanan had brought in $1.2 million in research funding and received several teaching awards [...]

But in December of 2013, Buchanan received an email from Andrew that changed everything. Titled “Unacceptable performance,” the email said that “multiple serious concerns” regarding Buchanan’s performance in the classroom and in the field had been brought to light: she’d been accused of making “inappropriate statements” to students, teachers and administrators.

LSU, now cornered, is trying to claw its way out. It is apparently willing to attack both Buchanan and the AAUP in the process. LSU issued a statement impugning Buchanan’s reputation. It also said the following:

We see four major problems with the AAUP’s recent statement regarding LSU’s recent removal of a faculty member. The reported facts are wrong, the statement ignores and misinterprets federal and state law, it fails to follow the AAUP’s own statement of principles, and in the report, the AAUP ignores the interests and well-being of students.

Possessing only limited information pertaining to this issue, the AAUP should not advocate for the continuance of teaching practices that potentially violate university policy, state and federal law. The AAUP continues to diminish its relevance by violating its own Statement of Principles, which holds that:  “University faculty, [A]s scholars and educational officers … should remember that the public may judge their professional institution by their utterances. Hence, they (faculty) should at all times exercise appropriate restraint, (and) should show respect for the opinions of others.”  Creating a “hostile learning environment” not only potentially violates the student’s civil rights, but, importantly, it clearly violates the AAUP’s own fundamental tenets.

The AAUP should reconsider its censure of universities that must abide by their own university policies, state law and federal law, which guarantee that our higher education students will have a safe intellectual learning environment.

It will not surprise anyone to know that FIREhas been in contact with Buchanan. I mention that only because that contact has given us access to relevant documents. The AAUP’s report, which was diligently researched, is a thorough, accurate, and elegant summary of hundreds of pages of documents.

The AAUP’s report also does not “ignore” or “misinterpret” federal or state law—at least any that can be found in a statute, rather than the imagination of LSU administrators. LSU’s standard for sexual harassment is ridiculously vague and overbroad. (Actually, the university has three different and, to some extent, contradictory policies.) Buchanan allegedly violated PS-73, which prohibits:

speech and/or conduct of a sexually discriminatory nature, which was neither welcomed nor encouraged, which would be so offensive to a reasonable person as to create an abusive working or learning environment and/or impair his/her performance on the job or in the classroom.

Since when is the occasional use of profanity “so offensive to a reasonable person” that he or she is no longer able to function? Federal courts, as LSU should know, have held that using profanity is not sexual harassment. See 240 F. 3d 200, 205-06 (3d Cir. 2001).  

The other policy that Buchanan supposedly violated is even worse: It forbids “unwelcome verbal, visual, or physical behavior of a sexual nature.” It includes hostile environment harassment, which “has the purpose or effect of unreasonably interfering with an individual’s academic, work, team or organization performance or creating an intimidating, hostile or offensive working environment.”

Any Torch reader knows what FIREthinks about blueprint-type sexual harassment policies defining the term as “verbal[...]behavior of a sexual nature.” Buchanan’s plight sadly proves that we were right that these kinds of vague and overbroad policies would be used to silence speech on college campuses.

Finally, the idea that Buchanan violated the Americans with Disabilities Act is laughable: The faculty committee found there was no evidence of an ADA violation. More fundamentally, LSU’s faculty policies do not contemplate punishment for an alleged violation of the institution’s obligations under the ADA. LSU faculty members provide accommodations to students with disabilities who request accommodations. But does not provide for punishment if faculty fail to act in accordance with the ADA.

LSU’s allegation that the AAUP is not following its own principles or that is doesn’t care about students is simply insulting. Buchanan made occasional blunt remarks that students didn’t like and sometimes used coarse language, putting her in the company of at least two thirds of the faculty, . Nobody likes to be told that their work is subpar. But it was Buchanan’s job to deliver that unwelcome message to student teachers who were not succeeding in the classroom. It appears as though she didn’t sugarcoat her feedback and some students got their feelings hurt and complained. LSU combed through years of Buchanan’s service and now claims every time she had a bad day, it somehow implicated federal or state law and created a hostile environment for students.

No one should be fooled by LSU’s claim that this case is about student welfare rather than academic freedom. As Buchanan herself points out, “the faculty committee heard 11 hours of testimony. They were presented with the entire HR report.  They determined unanimously I had done nothing to warrant dismissal and the university did not follow policy. The AAUP carefully read all documents including the hearing transcript. They agreed with the faculty ruling.” The experts on academic standards all agree that Buchanan belongs in a classroom.

If LSU cared about students, it wouldn’t have summarily removed an experienced and respected member of the faculty from teaching. It would not have ignored the recommendation of a faculty committee after a 12-hour hearing not to terminate her employment. It would not have fired her without plausible explanation. It’s unclear what’s motivating LSU, but concern for its reputation and morale of its students and faculty is certainly not on the list.