The Review: An Interview With FIRE; Ukraine Roundup

When do cash settlements work? When do they not? ADVERTISEMENT [The Review Logo]( Did someone forward you this newsletter? [Sign up free]( to receive your own copy. Public colleges and universities routinely violate the free-speech rights of faculty members and students. Often, faculty members sue and the university settles. In one of highest-profile recent incidents of this kind, the Collin College history professor L.D. Burnett, who was fired for, among other things, making fun of then-Vice President Mike Pence on Twitter, [settled]( with her former employer for $70,000 plus legal fees. That sum seems not to have discouraged the college from taking similar action against other faculty members. Drawing on Burnett’s case and others, Derek O’Connell [argued]( recently in The Review that settling doesn’t disincentivize suppression of academic freedom in the long term. “The sue-and-settle strategy,” O’Connell says, “is not enough.” I spoke with Adam Steinbaugh, a senior attorney with the Foundation for Individual Rights in Education — which represented Burnett, as it has represented many professors in similar circumstances — about when settlements work, when they don’t, the role of institutional insurance, and what his organization hopes to achieve. For observers of cases like [Garrett Felber]( at the University of Mississippi, or [Steven Salaita]( at the University of Illinois at Urbana-Champaign, it can sometimes look like universities are willing to buy themselves out of trouble — they’d rather pay a settlement than adhere to their own stated principles. So there’s no deterrent effect, or not a significant deterrent effect. I wonder what you make of O’Connell’s argument. To a certain extent, I think he’s right. Some institutions will say, Here’s the predicted cost of being able to censor. But I would push back on the notion that the results are insignificant. People don’t sue under the First Amendment in order to get rich. It’s not a lucrative business. If someone knows a way to make it a lucrative business, I’m all ears. But in some of these cases, you do have larger settlements or awards. I’m thinking particularly of Barnes v. Zaccari, a case down in Georgia at Valdosta State University. A student had fliers criticizing a parking garage. The university fought that lawsuit, and ultimately paid out $900,000. Which is not chump change. At Iowa State we had a lawsuit that was about lawmakers who were upset over NORML T-shirts — the National Organization for the Reform of Marijuana Laws. And ultimately they paid out about $750,000. And that’s sometimes just the tip of the iceberg — you’re just seeing the amount being paid to the student or faculty member. But that doesn’t account for the amount being paid by the institution itself. So at Chicago State, we [settled for $650,000]( but they wound up spending $879,000 on the back end. And $629,000 of that was through their insurance company. We also sued Los Angeles Pierce college for [a free-speech zone](. They settled for $250,000, but it cost them $821,000. I had never thought about the insurance question. How often are legal costs or settlement costs being covered by the university’s insurance company? I don’t know. We’re looking into that now. We’re trying to figure out how much do these cases actually cost the institutions. So we’re doing a little bit of public-records work, and trying to figure that out. I think Chicago State might be the only one we are aware of. Another interesting question, which I don’t know the answer to, is what that does to the rates for insuring a university against this sort of thing. I don’t know if they go up. And if they do, that would presumably have a deterrent effect. What does it take to inhibit universities? The numbers you’ve listed are a lot when every penny counts. And many of these are not rich institutions. Why does their general counsel not warn them off of it more? The goal is not to bankrupt institutions, or to cause them financial harm. The intent is to get changes in policy or the law so that they don’t fall into these pitfalls. A big part of it may be that qualified immunity means that there is no skin in the game for administrators. Unless a right is clearly established, you’re not going to be able to sue for money damages against individual actors, and because the state institution is immune under the 11th Amendment, there’s no real remedy for past violations; you can only really get a court order preventing them from continuing future actions. So administrators don’t have skin in the game, and they’re playing with public money. I want to ask about FIRE in general. On the one hand, you’re a narrowly focused advocacy group with a specific remit. On the other hand, it’s making loftier claims about what academic or intellectual life should look like. I don’t even know if it’s about academic life, so much as about the relationship between powerful institutions, particularly government institutions, and individuals. When we protect rights on campus, when we advance the First Amendment on campus, that protects people off campus too. When we create good law for protecting speech and the exchange of ideas where it should be most protected, that can help people off campus as well. It is worth mentioning, right, that you’re not just a First Amendment organization — you’re also involved with speech cases at private colleges where the First Amendment doesn’t apply but where you find discrepancies between administrative behavior and the college’s official policies on speech. And you rank universities, including private universities, according to the extent to which you perceive them to be friendly to free speech. So there is a focus beyond the First Amendment. Yes, especially with universities that promise free speech. At private universities you don’t have the First Amendment to fall back on, but you are relying on the promises that the institution makes. So if it holds itself out as saying, “We protect free speech, and free speech is a value of ours,” then when the going gets tough they sell you out, renege on those promises, you don’t have a lot to fall back on. Students and faculty members are not in a position to negotiate those policies. Some will have a union, where they can collectively negotiate, but many don’t. They’re left to the whims of powerful institutions that will lay out the terms of a contract and then back down on those when the going gets tough. SPONSOR CONTENT | UNIVERSITY OF BIRMINGHAM [Microplastics and our water: Clear thinking on a global pollution crisis]( ADVERTISEMENT SUBSCRIBE TO THE CHRONICLE Enjoying the newsletter? [Subscribe today]( for unlimited access to essential news, analysis, and advice. The Latest THE REVIEW | OPINION [Lawsuits and Settlements Won’t Save Free Speech]( By Derek O'Connell [STORY IMAGE]( Colleges keep buying their way out of adherence to principles. ADVERTISEMENT THE REVIEW | ESSAY [Does Leaving the University Mean Leaving Academe?]( By Sarah Buchmeier [STORY IMAGE]( We don’t suddenly stop being scholars because we need to pay bills. THE REVIEW | ESSAY [Who Owns Your Academic Community?]( By Jeffrey Lawrence [STORY IMAGE]( Scholars are so busy criticizing academe they forgot to criticize Twitter. THE REVIEW | ESSAY [When University Marketing Suppresses Academic Freedom]( By Silke-Maria Weineck [STORY IMAGE]( At Michigan, is the word “Palestine” taboo? Recommended — Writing on Ukraine - “For Putin, having gone as far as he had, the choice was starkly posed between escalation and capitulation. It was at this point that method turned into madness, and the murderous, strategically disastrous Russian land invasion of Ukraine began.” At Sidecar, [Wolfgang Stree]( on the war in Ukraine](. - “It turns out that this thousand-strong group of women and children isn’t the main crowd of the assembled refugees. Most of them are a kilometer and a half away, behind the Ukrainian checkpoint, to avoid creating chaos. Back there is where the men say goodbye, before heading back to Ukraine.” At n + 1, [Elena Kostyuchenko on the beginning of the war](. Translated from Russian by Ilona Yazhbin Chavasse. - “Either the people concocting these plans in the Russian Defence ministry were fools, or this was all a bad joke. Oleg Voloshin, for instance, one of the more marginal names offered, has ranted at me over lunch that gay marriage was merely a cover for demon-worshipping paedophilia. You wouldn’t trust these people to run a local council, let alone the second-largest country in Europe.” At unherd, Vladislav Davidzon [on what Moscow doesn’t know](. Write to me at len.gutkin@chronicle.com. Yours, Len Gutkin FROM THE CHRONICLE STORE [The Missing Men on Campus]( [The Missing Men on Campus]( The gender gap in college enrollment has been growing for decades and has broad implications for colleges and beyond. Explore how some colleges are trying to draw more men of all backgrounds — and help them succeed once they get there. [Order your copy today.]( NEWSLETTER FEEDBACK What did you think of today’s newsletter? [Strongly disliked]( | [It was ok]( | [Loved it]( This newsletter was sent to {EMAIL}. [Read this newsletter on the web](. [Manage]( your newsletter preferences, [stop receiving]( this email, or [view]( our privacy policy. © 2022 [The Chronicle of Higher Education]( 1255 23rd Street, N.W. Washington, D.C. 20037