• December 20, 2014

Court Denies Conservative Pundit-Professor's Bias Claim Against University

A federal court has rejected a claim that the University of North Carolina at Wilmington committed viewpoint discrimination against Michael S. Adams, a prominent conservative commentator and associate professor of criminology, by denying him a promotion based partly on its review of online columns and other expressions of opinion that he included in his application to move up the ranks.

In granting the university's motion to dismiss Mr. Adams's lawsuit against it, Judge Malcolm J. Howard of the U.S. District Court in Greenville, N.C., held that Mr. Adams had failed to prove his allegation that the university denied him a promotion to full professor based on his Christian beliefs and conservative views, which he has expressed in a substantial body of published opinion columns that emulate the style of Ann Coulter and often have taken aim at the university's administration, faculty members, and staff.

More significantly as a matter of broader legal interpretation, the ruling that Judge Howard issued on Monday said Mr. Adams himself had caused his columns to be considered as work-related speech—rather than as outside speech clearly protected under the First Amendment—by including them in the package of materials he submitted in applying for promotion.

The judge said that to have ruled otherwise—and held that the opinion columns contained in the application were not work-related speech—would have opened the door for people in Mr. Adams's position "to place employers in a double bind" by submitting such material. The employers' choice would be to either "neglect employee requests and refuse to look at the material, fueling allegations of free-speech violations grounded in the refusal," or consider the material with the knowledge that, if they decide against the applicant, they will be open to claims they violated the applicant's First Amendment rights by basing their denial on protected speech.

Judge Howard's decision cited the U.S. Supreme Court's 2006 Garcetti v. Cabellos ruling, which upheld the disciplining of a deputy district attorney for questioning his own office's actions, in holding that Mr. Adams was not protected under the First Amendment for speech made pursuant to his official duties. Although other lower courts have similarly applied the Garcetti ruling to cases involving the speech of college faculty members, the Supreme Court's majority opinion in the case explicitly sidestepped the question of whether its reasoning should apply to academic speech. The American Association of University Professors has been joined by many free-speech advocates in arguing that federal courts are mistaken in applying the Garcetti ruling to cases involving college professors.

Mr. Adams has been represented in his lawsuit by the Alliance Defense Fund, an Arizona-based organization of Christian lawyers and like-minded groups. The alliance issued a statement saying that its lawyers were considering an appeal of the federal district court's decision.

"We disagree with the court's assessment that Dr. Adams's speech is somehow not protected by the Constitution," Jordan Lorence, a senior counsel for the alliance, said in the statement. "Opinion columns are classic examples of free speech protected by the First Amendment, and mentioning them in a promotion application does not change this fact."

Comments

1. 22058885 - March 17, 2010 at 03:50 pm

Why would any professor include non-academic articles in his/her promotion packet? None of the stuff Adams writes in his column(mostly pro-gun anti-gay rants)has anything to do with peer-reviewed criminology research.

2. swish - March 17, 2010 at 03:59 pm

Nice to hear about a good and thoughtful court decision.

3. buzzer - March 17, 2010 at 04:06 pm

Libs 753 - Servs 5

4. frankmhowell - March 17, 2010 at 04:43 pm

This is a tactic often taken by faculty who are "light" on peer-reviewed scholarship. The current trend toward the "public scholar" role of the professoriate is predicated on professional scholarship, first, and then, second, educating the public from that basis. It can be a slippery slope, but it shouldn't.

5. 12111360 - March 17, 2010 at 04:56 pm

Whether one agrees or disagrees with Mr. Adams' columns and op-ed pieces, it is indisputable that they make a contribution to the hotly debated issues in today's postmodern university. Should they be considered for promotion? I know of many left-wing professors who include publications and op-ed pieces UNRELATED to their specific fields in their promotion packets and have been praised for "making a valuable contribution to today's academic discourse." I have yet to hear that they were denied promotion based on their "progressive" views outside their field of expertise -- let alone have that "work-related speech" considered unprotected by the First Amendment. No wonder we only hear of court challenges hereto by conservative professors.

I hope that Mr. Adams'lawyers will challenge this highly biased ruling and will, in the end, prevail.

6. jegraves - March 17, 2010 at 05:17 pm

Of course the opinion columns are protected by the First Ammendment. They just didn't rise to the level of "scholarship" required for promotion.

7. profperf - March 17, 2010 at 05:36 pm

Having sat on my college's P&T committee for more than half a decade, I have seen all manner of inappropriate things get included--including Christmas cards from stuents and so forth. Our college has worked had to make it very clear to candidates what does and does not fall under the heading of "scholarly/creative work," though all such classifications are, to be sure, bound to have some gray areas. I do think the whole concept of "public scholar" (whatever the discipline) is still in formation and therefore, subject to growing pains--I've seen it used to try to cover various acts that in previous periods would simply have been called "service" (and respected as such for the contributions they make to the commonweal). I think if one is to call something "public scholarship," the burden is on the candidate and his/her supporters to make it very clear how the work so categorized really demonstrates the scholarly knowledge and work of the candidate's discipline(s)--it is also, of course, incumbent upon institutions and various committees/evaluators to enter into such ajudication of public scholarship in good faith. If the college claims to accept "public scholarship" as on an equal footing with other, more traditional kinds of scholarship and/or creative production, then it needs to establish criteria and to apply such criteria fairly. I don't know Professor Adams' work, but if the majority of his "public scholarship" consists of "op-ed" pieces, without a clear demonstration of how such work grows out of genuine scholarly knowledge, then his case would not be a strong one in my opinion, anymnore than an Education professor simply serving on the PTA or BOE for the local town should automatically be considered "public scholarship" in education. A parallel problem can be found in "Scholarship of Teaching and Learning"--the Boyer model helps us situate this kind of work, but I don't think we're completely there with that work either.

8. supertatie - March 17, 2010 at 07:01 pm

I am politically conservative, and a freelance political writer, and I would never submit that kind of material as consideration for scholarship, NOT because most of my colleagues wouldn't agree with it (although most probably would not) but because it is not scholarship.

There are many brilliant conservatives who produce scholarship of unquestionable quality. I read Mike Adams columns fairly often, and they are sometimes funny, but scholarship, they are not.

9. lomalinda - March 17, 2010 at 07:09 pm

I have to agree with jegraves and insightful coments made byprofperf.
It seesm to me that Dr. Adames does not have the proper scholarship. On the lighter note, he lists NRA as "Professional Associations" on his school's website (http://www.uncwil.edu/soccrm/Adams.html). Nothing aginst NRA, but this is news to me.

10. lomalinda - March 17, 2010 at 07:10 pm

opps, comments not coments

11. smallcollegeprof - March 17, 2010 at 07:19 pm

I think profperf is on target. There IS a lot of gray area, and it could be that Adams got caught up in it. Did he make his case effectively? Did the committee ignore it? We aren't privy (yet?)to UNCW's P&T discussions, so the bottom line is we simply don't know.

12111360 insists that he knows of "many left-wing professors who include publications and op-ed pieces UNRELATED to their specific fields in their promotion packets," and adds that he has "yet to hear that they were denied promotion based on their 'progressive' views outside their field of expertise."

Maybe so, but can 12111360 give us some examples of left-leaning academics who did what's being charged, and who were rewarded with promotion to full professor? 12111360, I'm not trying to be combative; if you have the goods, then let's hear it. In my experience, promotion files aren't generally easy to get one's hands on, so this seems a bold position to be taking. Yet 12111360 implies that he personally knows of "many left-wing professors" whose promotions prove a double-standard. Is there any reliable evidence to that effect that goes beyond sweeping generalities?

12. 11159995 - March 17, 2010 at 07:34 pm

It's not clear from the article whether Prof. Adams submitted his op-ed and other non-academic writings as proof of scholarship, whether "public" or otherwise, or instead as evidence of service to the community. If it was under the latter rubric, it would seem appropriate if related in some way to his areas of expertise, but as we all know, service is the least weighted of the trio of research, teaching and service when it comes to decisions about promotion.--Sandy Thatcher

13. history_grrrl - March 17, 2010 at 10:37 pm

Never heard of the guy before now, but I'll have to pick up a copy of his 2008 book entitled (are you ready?), _Feminists Say the Darndest Things: A Politically Incorrect Professor Confronts "Womyn" on Campus_. I wonder if he included this gem in his application for promotion to full professor?

14. goodeyes - March 17, 2010 at 10:58 pm

To "12111360",

Name some of these professors if you actually know any of them. Open claims such as yours lack all credibility without real debate on the merits.

15. sahmphd - March 17, 2010 at 11:27 pm

Can't we agree that there are different ways of expressing knowledge? A former colleague of mine has written wonderful op-eds which were grounded in theory yet written for a public audience. Some profs are invited to comment about local or national issues because they are recognized as experts on the subject. These folks use their knowledge to inform a wider audience about a topic and, while doing so, enhance the visibility (and hopefully the public's perception of) the college. That is nothing to sneeze at. Maybe these articles should not be given as much weight as are peer and blind-reviewed articles in academic journals but - if they reflect someone's scholarly ability - they should be considered positively during evaluations. This is the case especially at those institutions that claim they are engaged in their communities.

16. lexalexander - March 18, 2010 at 08:53 am

Mike Adams has played the whiny conservative victim for years. As long as he doesn't do it in the classroom or in his scholarly work, it should have no effect on whether he gets a promotion. But the fact that he included some of his op-eds in his argument for promotion suggests a basic unsuitability for that promotion. That stuff ain't scholarly work, and the fact that it got show down in an academic context merely shows that if you live by Teh Stoopid, sometimes you die by Teh Stoopid.

He's also a bigot and a bully, and while that should have no effect on his purely academic standing, I as a North Carolina taxpayer want him off my payroll.

17. lexalexander - March 18, 2010 at 08:55 am

SHOT down, not show down.

18. timothybtyson - March 18, 2010 at 09:49 am

I think I probably qualify as a "left-wing academic," and I have included op-ed pieces in my tenure file. However, I expected committees evaluating my case to weigh op-ed pieces very lightly. Op-ed essays that do not explain substantive scholarly insights to a popular audience, but instead merely express my political views, I would not have expected to count at all. (These are not mutually exclusive categories, but they do not overlap entirely, either.) For his tenure case, Professor Adams is presumably being judged on his academic scholarship and his university teaching; generally speaking the former weighs far more than the latter in tenure decisions. Op-ed pieces can neither help nor hinder him much. This article says nothing about his academic performance, but nothing "emulating the style of Ann Coulter" should count as scholarship or teaching. The case can only be evaluated in light of those factors. I see no basis for judgement here.
Tim Tyson
Duke University

19. jeff1 - March 18, 2010 at 09:53 am

Why is it that liberal is considered a "bad" moniker today and conservatives can spin and say whatever they like without supporting it and that is seen as a "good." Scholarship is the great equalizer when one is considering faculty promotions to full professor and the ideas don't matter . . . quality of the work matters. Opinion pieces and public "scholarship" is great (that is service not scholarship), but to be a full professor one needs to be a true academic not just writing for the popular media.

20. sahmphd - March 18, 2010 at 11:27 am

Public scholarship is BOTH scholarship and service.

21. 11159995 - March 18, 2010 at 11:51 am

I have been a volunteer book review editor for the Centre Daily Times for a couple of years in which role, as a university press publisher, I have been particularly eager to help university press books of general interest get better review coverage. I have called upon numerous Penn State faculty to review books in their fields of expertise, and though their reviews are written for a newspaper readership and not an academic journal, these reviewers are nevertheless bringing their academic expertise to bear on the subjects they write about. This I would regard as a kind of public service drawing on faculty expertise that should legitimately count toward promotion.---Sandy Thatcher

22. bonobo - March 18, 2010 at 12:43 pm

I'm not a lawyer, but it seems to me that if Prof. Adams were at a private institution, he wouldn't have even been able to bring this case - there's nothing in the 1st Amendment that protects you from your employer's reaction to your speech. 'Because you think that they're an a-hole' is a perfectly legal and valid reason to deny someone a promotion. Adams seems to be claiming that that the State (in the form of UNC-W) is punishing the speech of Citizen Adams. The court says that Adams' employer is possibly punishing speech that Adams himself claims was produced as part of his professional role as an employee of UNC-W. Which is not, in itself, illegal. This is not to say that Academic Freedom is not or should not be protected, just that the 1st Amendment isn't going to be where you'd look for such protection.

23. drnancylbush - March 18, 2010 at 02:30 pm

Color me incredulous but I didn't believe that anyone would list the NRA as a professional association unless, perhaps, he was teaching gunsmithing at Great Lakes Truck Driving School in COlombus Ohio. However, a visit to Prof. Adam's site listed above shows I would have been wrong:

"Mike Adams, Associate Professor
BA 1987 Mississippi State University Psychology
MS 1989 Mississippi State University Social Psychology
PhD 1993 Mississippi State University Sociology/Criminology
Social and Behavioral Science Building 211A | (910) 962-3425 (910) 962-3425 | 601 South College Road, Wilmington, NC 28403-5978
adamsm@uncw.edu

Courses Taught
Criminal Law & Procedure
Law of Evidence
Introduction to Criminal Justice
Trials of the Century

Professional Associations
National Association of Scholars
National Rifle Association"

24. timewaster123 - March 18, 2010 at 02:31 pm

You mean my blog about the theories of kitties and knitting isn't going to count for me at p&t time? Wow, I'm so surprised.

Besides, I thought the time for engaging in all those puffy projects, like books in fields where only journal article matter, was an activity meant for after one achieves tenure.

25. cwinton - March 18, 2010 at 04:43 pm

By Mr. Adams reasoning, those commenting herein should be able to add a citation for same to their P&T dossiers.

26. agnesdomini - March 18, 2010 at 06:54 pm

6. jegraves :"Of course the opinion columns are protected by the First Ammendment. They just didn't rise to the level of 'scholarship' required for promotion."

Agreed that it is scholarly writing which merits promotion, because, whereas opinion columns and editorials can help to contibute to the understanding of a body of knowledge, they are intended for mass appeal, to impact or influence persons outside of the relevant discipline, and, as such, do not properly contribute to the body of knowledge itself, which only research coupled with critical analysis can do.

Peer-review publication, however, should not be the exclusive basis for consideration for promotion, as many instructors pen materials which cannot get accepted for journal publication BECAUSE they argue against the status quo, and might challenge the "authority" of the peers whose own research (i.e., grants, jobs, paid lectures, books, media appearances, reputation) is at stake if their own contentions are proven to be false whilst the editors are still attempting to secure funds and positions and prestige for themselves. (If you think about it, peer review jounals can amount to trusting the fox to guard the hen house, wherein no new ideas hatched can make it to the farmer's plate to be digested if they are crushed or have their limelight stolen by the publication sentry.)

If opinion columns are liberally peppered with research and citation, then they are really academic essays, which should be permitted for consideration---but if they are written at the level of the typical blog entry or newspaper column threshhold, no matter how lucid, innovative, thoughtful, or powerful they might be, they are not examples of scholarship, which involve argumentation coupled with extensive citation. Opinion pieces without documentation are the equivalent of providing the answers on the exam to the math question without showing the work as to how the problems had been solved.

Of course, that is merely feedback as to how colleges should assess portfolios for promotion, and does not address the error in the court's logic. Clearly, opinion columns are First Amendment exercises, which need to be protected, and writings which are not undertaken as part of one's official duties cannot be restricted. But the college never prevented the instructor from publishing his work, which means the plaintiff is arguing that he is being discriminated against for having expressed his conservative, Christian opinions in a venue not officially-affiliated with his employer---because the law prohibits "back end" retaliation for having exercised one's First Amendment rights.

The most overlooked aspect of this issue is that the opinion columns, "often have taken aim at the university's administration, faculty members, and staff." It is in THAT regard that the plaintiff has the best odds of arguing retaliation for having exercised his First Amendment rights, because the courts can consider retaliation by means of a simply chronoligical timeline. Was the instructor foolish in directing his superiors to such condemnatory materials? Arguably, this was not the wisest thing to do, because if, in the past, you have bitten the hand which has fed you, however poorly it had done so, it is unwise to call attention to your keepers that you have done so in the past right, when they are deciding which dogs in the kennel must be put down.

If the instructor-in-question has included in his portfolio a standard number of examples of scholarly writing, in a ratio comparable to his peers at said campus, yet still has benied a promotion, then I would contend he IS a victim of retaliation and/or viewpoint discrimination, and should triumph; however, if his portfolio is lacking in examples of academic writing significantly lower than those of his peers up for like promotions, then he is destined to lose, and should so.

27. the_book123 - March 18, 2010 at 08:17 pm

Please warn tenure-track professors and Assistant and Associate Professors aspiring to promotion, to stay out of politics and focus on teaching, research and service. We already have too much on our plates trying to regain our credibilities from all stakeholders. Professors with political aspiration agenda do not belong to the academia --they need to learn from President Obama, okay???

28. agnesdomini - March 18, 2010 at 08:38 pm

Respctfully, I disagree with #27. How is it even possible to "stay out of politics" in the humanities and social sciences? History includes the history of political ideologies; art includes the study of political propoganda; literature includes the study of political pamphlets which address universal and eternal problems;and sociology addresses questions of demographics, deprivation, and disillusionment with political solutions. Politics is human activity, and the perfect breeding ground for exploring multiple disciplines. I shouldn't have my students read Jonathan Swift's "A Modest Proposal" in order to have historical context to help frame discussions on contemporary solutions to poverty, orphanage, children conceived out of wedlock, abortions, prostitution, and the welfare state? Or John Milton's "Areopagitica" to spur examination of campaign promises and election rhetoric? We study those texts to help make sense of political events and ideas in our OWN time and lives, because education does not consist of merely memorizing data, but finding ways to connect it to our own experiences, so that we can shape and participate in the world we occupy at present, and the one we will in the future. Stumping for candidates on the clock is one thing (which should be verboten), but instructors should not consider politics taboo, because politics of today can best be understand when discussed in comparison to the politics of history--a measure which cannot include limiting instruction to historical texts, ideas, figures, and artworks at the expense of omitting critical and comparable contemporary ones.

29. agnesdomini - March 18, 2010 at 08:47 pm

BTW, bonobo (#22) is incorrect; the law DOES afford protection against free speech retaliation to employees having criticized their employers in a venue not affiliated with the campus, as ruled in the SCOTUS decision of Pickering v. United states (1968), and, recently, the Second Circuit, in Brenes v. City of New York (2009)ruled that an employer may be guilty of retaliation by means of delayed action against an employee, if the employer waited for review assessment in order to exact the retaliation, since that was the opportunity most favorable to the employer.

smallcollegeprof (#11) and goodeyes (#14)are being unreasonable in their smarmy attempts to discredit "12111360" by demanding specific identification of liberals having included op-ed pieces in their portfolios for promotional consideration: It is a very well-established fact that "12111360" is not in a position to "name some of these professors if [s/he] actually know any of them" because there are very strict laws in place which prohibit school empployees from releasing or discussing particular employment application materials, thus if "12111360" were to do so, s/he would open his/her employer up to costly litigation, and possible dismissal for violation of the law.

30. smallcollegeprof - March 18, 2010 at 09:35 pm

agnesdomini -- Just so I understand your logic: 12111360 made provocative comments to which I responded, being careful to point out that I'm NOT being combative. 12111360 made rash claims, and being called to task for this is smarmy? Encouraging somewhat more temperate rhetoric, or asking for substantive evidence in support of a really problematic assertion, is an attempt to discredit? Yeah, whatever.

31. lawsuitabuse - March 19, 2010 at 11:34 am

Mike Adams is a hypocrite. If you read the report, it's obvious that he did not deserve the promotion, but the department chair offered to work with him to beef up his credentials and apply again. Instead, he files a frivolous lawsuit and pretends to be a victim...even though every other column he writes is about the black, feminist, or gay "victimhood complex."

It's also obvious no one ever retaliated against him for his political views. As for the e-mail incident, they fought hard to defend Adams, and only looked into his e-mail after being repeatedly threatened with legal action. Since one of his favorite tropes is harassing his colleagues via his column, the UNCW sociology department must be filled with saints. This jerk is lucky they didn't can him a long time ago.

32. agnesdomini - March 19, 2010 at 09:53 pm

smallcollegeprof (30), just so I understand YOUR "logic":

Just because you contend that you are not being combative does not make it so; the insane asylums have been filled with people asserting they were Napoleon Bonaparte, which doesn't mean their claims had been possessed of any veracity. 12111360 made "rash" claims? Pardon my expressions of incredulity, but, on what planet? Do you even understand the proper definition of "rash"? (http://www.onelook.com/?w=rash&ls=a) Employ hyperbole much?

And, yes, I stand by my having pegged your remark as being smarmy:http://www.onelook.com/?w=smarmy&ls=a

You didn't call for more temporate rhetoric, you asked 12111360 to name names as the means of providing "substantive evidence," and it is smarmy to demand something which you know the other person is legally precluded from revealing as a means of trying to trump or discredit the other person's argument.

For 12111360 to state that there are examples of liberal bias in potfolio asessments is "a really problematic assertion"? Again, on what planet? There are multiple published studies and documentaries which demonstrate the liberal leanings of academia, some of which have been covered by the Chronicle. Where's the problem with the assertion, given the odds are far more likely that what s/he has posted is true rather than is not, given said documentation? Methinks thou doth protest too much.

"Yeah, whatever"? Spoken like a true scholar...

"Current peer-reviewed research places the proportion of liberal to conservative faculty at approximately three to one."http://www.facultyfocus.com/articles/trends-in-higher-education/political-bias-in-the-classroom-perception-and-reality/

Translation? It is easier for liberals to include peer-reviewed work in their portfolios, which provides them with an advantage over their conservative peers, the latter of whom are forced to publish in other media. I am not debating if the liberal faculty are "poisoning" the student body with their ideas, I am simply pointing to data which puts liberal faculty in the majority, thus the odds of what 12111360 contends are greater, simply by sheer virtue of the numbers, hence it is not a "problematic assertion".

BTW, just because I am a consevative instructor does not mean I am for David Horowicz's push to establish a legal mechanism for determining liberal-conservative teacher ratios, because I think that a slippery slope to be avoided at all costs.

"The overwhelmingly liberal tilt of university professors has been explained by everything from outright bias to higher I.Q. scores."
http://www.nytimes.com/2010/01/18/arts/18liberal.html

"These figures suggest that most students probably graduate without ever having a class taught by a professor with a conservative viewpoint." http://www.studentsforacademicfreedom.org/news/1898/lackdiversity.html

"Last year UCLA's Higher Education Research institute polled 32,000 full-time undergraduate professors. It found that 48 percent identified as 'liberal' or 'far left' while only 18 percent described themselves as 'conservative' or 'far right.'" http://www.freerepublic.com/focus/news/832779/posts

"'blindfold yourself, flip to a random page in a TRACS book [the book listing the courses offered at NCSU], and stick your finger somewhere on the page.'

Why do such a thing? Because 'chances are, you'll get a liberal pinko professor[.]'" http://www.popecenter.org/clarion_call/article.html?id=1521

http://www.johnlocke.org/news_columns/display_clarion.html?id=2062
S. Fish rots from the head!(c)

33. frankmhowell - April 01, 2010 at 11:19 am

The slight of hand pulled by many faculty who try to shine in the public spotlight is that it is their "free speech" (and associated personal politics) that is the reason for not receiving promotion and/or tenure. In this case, it was promotion to Full Professor where most universities require "excellence" in research and either teaching or service. A total of 10 (or 11) peer-reviewed articles in a career-to-date is not the highest bar to scale! If one examines the scholarly (not articles on a TownHall.com website or the like) work submitted by Mr. Adams, I am not sure that any social scientist would be bowled over by the quality of the scholarship. So he's not the sharpest knife in the drawer. But diligence and stewardship to the craft of one's discipline has led many less intellectually-endowed faculty toward more than adequate scholarly productivity and the attaining the rank of Professor. But, if one is running around attempting to emulate Ann Coulter under the guise of "public scholar," there is little time to focus on basic scholarship. This has little to do with being on the right or left, being atheist or Christian or whatever, or what one says that is published in a non-peer reviewed forum. Examining Mr. Adam's Twitter postings suggests that he's blind to this possibility since it's everyone's fault but his that he didn't make the cut for promotion to Professor. It might be a better use of taxpayer's monies if he tended to his academic knitting if he ever hopes to be qualified for this promotion!

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