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Inside Higher Ed has an interesting regarding CUNY Brooklyn professor and administrator (he is chairman of the sociology department) Timothy Shortell. Shortell, as many may know, has started the clock running on his 15 minutes of fame in our academic freedom wars with a controversial essay regarding people of religious faith. Inside Higher Ed sets the stage:

The essay, “Religion & Morality: A Contradiction Explained,” critiqued the role of religion. “Modern religion is a fundamental belief in magic,” he wrote. The essay also argued that religion had numerous negative consequences.

Of religions, he wrote: “They persist today because they are so effective at constructing group identities and at setting up conflict between the in- and out-groups. For all religions, there is an ‘us’ and a ‘them.’ All the ritual and the fellowship associated with religious practice is just a means of continually emphasizing group boundaries.”

The essay also compared religious people to children. “It is no wonder, then, that those who are religious are incapable of moral action, just as children are. To be moral requires that one accept full responsibility for one’s self.... Morality is a basis for making choices, in the context of a particular political economy.”

And in the paragraph with the “moral retards” quotation, he argued as follows: “On a personal level, religiosity is merely annoying—like bad taste. This immaturity represents a significant social problem, however, because religious adherents fail to recognize their limitations. So, in the name of their faith, these moral retards are running around pointing fingers and doing real harm to others. One only has to read the newspaper to see the results of their handiwork. They discriminate, exclude and belittle. They make a virtue of closed-mindedness and virulent ignorance. They are an ugly, violent lot.”

In response to the current controversy, Shortell argues that his statements are “fundamentally an academic freedom issue.” In other words, his essay is expression that is not only constitutionally protected but also fits within traditional definitions of academic freedom—and cannot be used as grounds for any kind of discipline.

Well—yes and no. There is a difference between the academic freedom of a professor and the academic freedom of a department chair. As Eugene Volokh noted in his excellent of the Churchill case:

The chairmanship of a department is an administrative post; while a professor’s job is to publish his own work and his own views, the chair’s job is to advance the academic mission of the university. (Teaching is a separate and complicated matter, but as best I can tell none of Churchill's offensive statements were made in class.) See , which sensibly draws this distinction.

If the University concludes that keeping a person such as this as the administrative face of the department will cast the department and the university into disrepute, it can properly remove him as chair, while retaining his right to say whatever incendiary things he likes as professor. And of course I’d say the same as to department chairs who said things I liked: A university should have fairly broad authority to strip them of their chairmanship, though not of their posts.

In the Shortell case, Brooklyn College has the authority to strip Shortell of his chairmanship, and such an action would not violate the constitution nor would it violate traditional conceptions of academic freedom. There is an additional important element to this case. Shortell—as department chair—presumably plays a prominent role in hiring, retaining, and promoting employees. Every relevant federal, state, or local employment discrimination statute prevents discrimination on the basis of religion. A department chair who is “on the record” disparaging religious individuals as “children” and “moral retards” is an enormous liability risk. Such comments provide even a semi-competent trial attorney with what we called in my trial attorney days a “lay-down hand” when it comes to providing evidence of discrimination. If a qualified religious individual is denied employment in Shortell’s department (or is denied a promotion), then the question is not whether Brooklyn will be forced to take out (the taxpayers’) checkbook but how many zeros it will attach at the end of the number.

Imagine if a department chair were on the record publicly ridiculing African Americans, or Latinos, or Asians, or Native Americans, or any other ethnic group as a class; would any employer in his or her right mind give that person supervisory authority over members of the ridiculed class? While many people can debate the moral differences of racial, religious, or gender disparagement, what cannot be argued is that these different groups enjoy the same level of protection under employment discrimination law.

If Brooklyn keeps Shortell as department chair, and if Shortell later acts in a concrete way against any religious individual, then Brooklyn will have no one to blame but itself for the resulting legal judgment.