The “Not Renewed” Excuse at Hamline and Elsewhere

Posted in: Education

Hamline University, a liberal arts college in Minnesota, has been the scene of recent controversy following the university administration’s dismissal of adjunct professor Erika Lopez Prater, whose actions the university’s vice president for inclusive excellence publicly condemned as “undeniably inconsiderate, disrespectful and Islamophobic.” Lopez Prater’s offense? In her art history class, she displayed (among many other works of art) a well-known and historically important 14th-century painting of the prophet Muhammad—but only after warning students both in her syllabus and during class that she would do so, thus allowing any Muslim students who might wish to avoid the painting to briefly avert their eyes or absent themselves. No one complained in advance, but that fact provided no comfort for the executive director of the Minnesota chapter of the Council on American-Islamic Relations (CAIR), who supported a student who complained after the fact: “a trigger warning is an indication that you are going to do harm,” he said.

To its credit, the national leadership of CAIR contradicted its local branch. Academic study of paintings that depict Muhammad “does not, by itself, constitute Islamophobia,” national CAIR said, pointing out that there was no evidence (beyond the respectful effort to show the painting itself) that Lopez Prater had engaged in Islamophobia.

Hamline itself, however, doubled down. Last week, university president Fayneese Miller issued a self-pitying and self-contradictory statement in which she both denied that Lopez Prater had been fired and congratulated herself for firing Lopez Prater in order to “prioritize[] the well being of” Hamline’s students, lest “academic freedom . . . become a weapon to be used against vulnerable populations.” Tellingly, although Miller’s statement suggested that the New York Times article that first brought national attention to Lopez Prater’s case was inaccurate “regarding critical aspects of this incident,” Miller disputed none of the details reported by the Times. The only “correction” Miller offered was her tendentious claim that Lopez Prater had not been fired.

Hamline has been and will continue to be harshly criticized for its disgraceful abandonment of academic freedom and simple decency. In the balance of this column, I address Miller’s excuse that Lopez Prater wasn’t even fired—which is perhaps even more dangerous.

Adding Insult to Injury for Adjunct Faculty

When people imagine a professor at a research university or liberal arts college, they probably envision someone like me: I have a very adequate salary, tenure, a reasonable teaching load, and thus plenty of time to spend on my research and writing. But we traditional faculty comprise only about a quarter of the higher education teaching workforce. The balance do not have and will not receive tenure. They are poorly paid and overworked adjunct faculty hired to teach on a per-course basis.

Accordingly, when Hamline President Miller said that Lopez Prater was not “fired,” “let go,” or even “dismissed,” that was not, strictly speaking, false. As an adjunct, all Lopez Prater was ever expressly promised was a low-paying job renewable within the university’s discretion. Even so, the decision not to renew her added insult to injury. Miller exploited Lopez Prater’s tenuous status as an adjunct to deny her the procedural protections that would be afforded a tenured faculty member accused of actual misconduct.

Nor is Miller the first academic administrator to exploit the limited protections available to faculty without tenure. In 2021, Zoom recorded and shared what the participants thought was a private after-class conversation between two long-time adjunct law professors at Georgetown, in which one of them offered a negative account of the performance of some of her Black students. Dean William Treanor swiftly fired the adjunct who made the comments and obtained the resignation of the other adjunct in the conversation. Then, last year, Dean Treanor allowed Ilya Shapiro to keep his job running a center at Georgetown despite Shapiro’s pre-hiring racially problematic tweets, but only on condition that he “participate in programming on implicit bias, cultural competence, and non-discrimination” and “meet with student leaders concerned about his ability to treat students fairly.” Calling the vindication merely “technical,” Shapiro promptly resigned.

In neither of the foregoing incidents did Dean Treanor exactly deny what he was doing. And in his letter to Shapiro, Treanor paid lip service to the university’s “dedication to speech and expression,” just as President Miller professed Hamline’s commitment to academic freedom. Still, in each incident, the administrator took advantage of the fact that the faculty member at issue lacked tenure.

Perhaps the boldest example of this sort of leveraging of the absence of tenure by university administrators involved the hiring and “unhiring” of Steven Salaita by the University of Illinois in 2014. After Salaita had cleared the substantive obstacles to obtaining a position—and after he had resigned his prior position and moved—the university declined to go through with the final formal step, in light of incendiary and arguably antisemitic tweets by Salaita. Key administrators likely assumed that by failing to fully confer tenure, rather than revoking tenure, they would have an easier case to defend.

Legal and Other Protection for the Tenureless

Were they right? Maybe not. Salaita eventually sued and accepted a $600,000 settlement payment from the University of Illinois. Although I have seen no indication that any of the faculty no longer working for Georgetown intend to sue, Lopez Prater has apparently hired a lawyer and is considering suing.

But what can she sue for? Defamation is a possibility. After all, Hamline did not merely quietly decide not to renew Lopez Prater. University officials sent out mass emails calling her Islamophobic.

What about a lawsuit claiming Hamline violated Lopez Prater’s academic freedom? State colleges and universities are bound by the Constitution, and the Supreme Court has stated that “academic freedom . . . is a special concern of the First Amendment.” Accordingly, when the University of Illinois unhired Salaita in retaliation for his speech, it arguably violated his constitutional rights. Hamline, however, is a private institution not bound by the Constitution.

Even so, state law may give Lopez Prater some further job protection. Private colleges and universities can and typically do commit to be bound by principles of academic freedom that do not apply of their own force as a matter of constitutional law. Hamline has done so in at least two ways.

First, its statement of civility professes that the university “is committed to academic freedom and celebrates free expression for everyone.” Second, Hamline is accredited by the Higher Learning Commission, a regional body. In order to remain in good standing, Hamline must comply with the commission’s “core” criteria, including the requirement that “[t]he institution is committed to academic freedom and freedom of expression in the pursuit of truth in teaching and learning.” Depending on the particulars of the university’s agreement with Lopez Prater, its broader representations and practices, and Minnesota contract law, either or both of those commitments to academic freedom could be deemed an implicit term of Lopez Prater’s employment contract.

The Baseline Problem for At-Will Employees

But wait. Hamline contends that Lopez Prater’s employment contract expired when she finished teaching her most recent class. Even if Hamline violated Lopez Prater’s academic freedom, hasn’t it fulfilled its contractual obligations?

Lopez Prater may be able to argue that academic freedom works like antidiscrimination law. Consider that most non-union workers in the United States are employees at will. They can be fired at any time. However, while a covered employer may fire an at-will employee for virtually any reason, federal and state antidiscrimination law forbid firing for an affirmatively bad reason. At the federal level, Title VII enumerates the forbidden grounds as “race, color, religion, sex, or national origin,” while the Age Discrimination in Employment Act and the Americans With Disabilities Act provide further protection based on age and disability, respectively. Minnesota’s Human Rights law provides an additional layer of protection against discrimination on all of those grounds and adds these: “creed, . . . marital status, status with regard to public assistance, familial status, . . ., [and] sexual orientation . . . .”

Yet notably, neither federal nor (so far as my research reveals) Minnesota law expressly forbids firing employees at will based on their exercise of academic freedom. Moreover, even if Minnesota law were to deem academic freedom similar to protection against illicit discrimination, Lopez Prater would still face a challenge that confronts many antidiscrimination plaintiffs as well. As Professor Cynthia Estlund argued in a 1996 article in the Texas Law Review, the baseline norm of employment at will—which allows employers to discharge workers “for any reason or no reason at all”—makes proving discrimination difficult. Part of how one shows discrimination, after all, is by showing that the employer’s stated reason for an adverse decision does not make sense. But it is especially challenging to show that a decision was senseless when even “no reason” counts as a permissible basis for it.

That said, if Minnesota law renders Hamline’s commitment to academic freedom judicially enforceable, Lopez Prater may present the rare case in which the evidence of illicit motive is so overwhelming that she can overcome the baseline problem presented by employment at will. The public statements by President Miller and other Hamline administrators are a veritable armory of smoking guns.

Yet justice for Lopez Prater, should it come, would do little for the thousands of underpaid, overworked, and generally exploited adjunct faculty whose toil keeps so many contemporary colleges and universities operating. Their vulnerability is what makes it possible for administrators to treat them unfairly. They deserve better.

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