From Louisiana Illuminator (Piper Hutchinson), reporting on this short restraining order:
A state judge has [temporarily] ordered LSU to allow its law professor Ken Levy to return to teaching duties. The university had removed Levy from the classroom pending an investigation into alleged criticism of Gov. Jeff Landry….
A hearing on a longer-term preliminary injunction is scheduled for Feb. 10 (WAFB, Chris Nakamoto):
LSU removed Levy from his tenured teaching position last week, following comments Levy made to his students about Louisiana Governor Jeff Landry and President Donald Trump.
Back to the Illuminator:
In an affidavit to the court, Levy says that he brought up Landry’s reaction to comments of fellow law professor Nick Bryner during class. Levy asked his students not to record his lectures because he didn’t want to be targeted by Landry.
In November, Landry publicly asked LSU to discipline Bryner last year for his comments about President Trump the day after the presidential election. A video of Bryner’s comments were sent to the governor, who then circulated the video on social media.
“If Governor Landry were to retaliate against me, then f*** the governor and f*** that. — all of which was a joke and clearly said in a joking manner to highlight my no recording policy in class and the First Amendment,” Levy wrote in the affidavit…..
LSU has several policy statements and permanent memoranda that address disciplining a tenured faculty member. These policies call for several layers of review, all of which require peer faculty input. None of this happened before Levy was removed from his classes ….
The university is quoted as responding,
“While academic freedom protects speech, thought, and expression within the university setting to promote learning and knowledge, it does not provide a license to:
- Use the classroom as a platform for personal grievances beyond the scope of the course or otherwise.
- Demean or threaten students with differing viewpoints.
- Engage in gratuitous use of profanity, particularly in professional training environments such as law, where students are preparing to practice under standards of conduct and civility.
“PS-15 [LSU’s policy statement regarding academic freedom, free speech and tenure] further emphasizes that faculty members, as both scholars and representatives of LSU, should remain mindful that their words and actions reflect upon the institution. LSU recognizes that faculty status demands professional responsibility and accountability.”
The seeming relevant passage from PS 15 is,
Teachers and investigators are entitled to freedom in the classroom in discussing their subject but should not introduce information or topics which have no relation to the subject being instructed. Instructors should be careful to use appropriate examples, metaphors, and analogies to achieve the desired student learning. The Faculty Senate Admissions, Standards and Honors Committee or the Faculty Adjudication Committee will evaluate the circumstances and context and provide a recommendation to the Provost and Faculty Senate President when there are complaints or disputes on the information or its method of presentation in a class. Faculty members will be afforded due process that includes ability to present supporting materials in disagreements on appropriate academic freedom, free speech, or freedom of expression.
For the Foundation of Individual Rights and Expression’s letter defending Prof. Bryner, see here; I don’t think FIRE has yet responded to the Levy matter.
Note that in Buchanan v. Alexander (5th Cir. 2019), a federal case involving LSU, the court upheld the firing of a faculty member for vulgarities and sexual discussions that were seen as “not related to the subject matter or purpose” of the course:
Before she was fired, Dr. Buchanan was an associate professor at LSU with tenure. She taught in the Early Childhood Program for teacher education. In November 2013, LSU received a complaint from the superintendent of a local public school district regarding Dr. Buchanan’s “professionalism and her behavior” when she visited schools in his district. LSU also received complaints from some of Dr. Buchanan’s students regarding her classroom behavior. One student complained about Dr. Buchanan’s comments regarding the student’s sexual relationship with her fiancé. Another student complained that Dr. Buchanan recorded her crying during an assessment team meeting. LSU had received a letter in 2012 from a group of students complaining that Dr. Buchanan made offensive classroom comments, such as (1) “a woman is thought to be a dike if she wears brown pants”; (2) “it was a choice to be in the program and it was not the fault or problem of the professors if any of us chose to be mommies or wives and not to expect to get an A in the class”; and (3) use of “extreme profanity on a regular basis.” …
In March 2015, the Faculty Committee held a lengthy hearing regarding Dr. Buchanan’s classroom behavior. The Faculty Committee concluded that Dr. Buchanan had violated LSU’s sexual harassment policies, PS-73 and PS-95, “through her use of profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes.'” The Committee also found that Dr. Buchanan had created a “hostile learning environment.”
The Committee recommended censure. In April 2015, despite the Faculty Committee’s censure recommendation, President Alexander informed Dr. Buchanan that he was going to recommend to the Board that she be dismissed for cause ….
We agree with the district court here that Dr. Buchanan’s use of profanity and discussion of her sex life and the sex lives of her students was not related to the subject matter or purpose of training Pre-K-Third grade teachers. This court has held that, in the college classroom context, speech that does not serve an academic purpose is not of public concern [and thus not protected against employment action -EV]….
In [a prior Ninth Circuit case that held in favor of the professor], the use of profanity and discussion of controversial viewpoints was “at least tangentially related” to teaching college-level English. Here, the use of profanity and discussion of professors’ and students’ sex lives were clearly not related to the training of Pre-K-Third grade teachers. Dr. Buchanan’s speech was not, therefore, a matter of public concern; we thus affirm the district court’s holding that LSU’s policies did not violate the First Amendment as applied to Dr. Buchanan because her speech was not protected.
Note that state courts aren’t technically bound by federal appellate precedent, even from the federal circuit in which the state is located (Louisiana is in the Fifth Circuit), though they tend to find such precedent to be influential.
