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Mark McPhail, a former communications professor at Indiana University Northwest in Gary, Indiana, has sued the university and administrators last month for retaliating against his exercise of First Amendment rights, among other things. The lawsuit alleges IU Northwest fired McPhail after he criticized the selection of the person appointed to lead a reorganized School of the Arts and spoke out about racism and diversity efforts. McPhail seeks reinstatement to his tenured position and damages to compensate for lost salary. 

IU Northwest initially hired McPhail in 2015 as executive vice chancellor for academic affairs with an appointment as professor of communication with tenure. He resigned from his administrative position and assumed his tenured professorship a year later. 

During his time on the faculty, McPhail has been outspoken on issues of race and diversity at his institution. He hosted a public forum in 2018 titled “Diversity: An unfulfilled promise at IU Northwest” that included members of the Indiana state legislature’s Black Legislative Caucus and identified ways IU Northwest had failed to support black students. McPhail argued, “overemphasis on institutional ‘diversity’ initiatives can obscure or frustrate progress.” 

McPhail’s complaint alleges that the day after he appealed, IU terminated his employment by sending police to his home.

McPhail also spoke out on matters of university governance. When IU Northwest announced it would merge its Departments of Fine Arts and Performing Arts with the Department of Communication Studies to create a new “School of the Arts,” McPhail criticized the administration’s process for selecting the new school’s dean. He argued at the time that IU Northwest selected a dean without a search and without sufficient transparency under university policy. As a result, McPhail alleges, IU Northwest transferred him to IU Bloomington for two years. 

Upon his return, McPhail alleges the dean refused to communicate with him about his course assignments and refused to assign him certain courses because McPhail had told IU the dean’s appointment violated university policy. When the time came for his first performance review after returning, the dean characterized McPhail’s teaching as inadequate, relying on unspecified reports about his reputation as a teacher and the number of students who failed his class. 

Things came to a head when McPhail attempted to defend himself against the dean’s characterization of his performance. The dean said that, because McPhail had attempted to “shift the blame,” he would recommend that the university suspend McPhail from teaching and reduce his salary by 75%. IU Northwest’s executive vice chancellor agreed and did just that. 

The situation got even stranger after McPhail attempted to appeal that decision. McPhail’s complaint alleges that the day after he appealed, IU terminated his employment by sending police to his home with a termination letter. The reason the university gave for its drastic action was that McPhail made a “threat of physical violence” by saying “words to the effect that ‘the only way to end racism is to kill all white people.’” 

Rhetorical hyperbole, or even the endorsement of violence, does not exclude a particular statement from constitutional protection.

McPhail in his complaint disputes saying that or anything to the effect. But even if he had, that speech would be protected under the First Amendment. Despite what IU Northwest says, McPhail’s purported statement is not a true threat that would fall outside of First Amendment protection. A “true threat” is a statement by which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Rhetorical hyperbole, or even the endorsement of violence, does not exclude a particular statement from constitutional protection. 

FIRE will be closely watching McPhail’s lawsuit as he fights to vindicate his First Amendment rights and get his job back.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIREtoday. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).