Lawsuit Challenges Academic 'Freedom'

Does a professor have the right to require his students to comply with a certain political or social view in order to pass a course? Can universities demand that students observe policies that conflict with their religious views or restrict their First Amendment rights?

A lawsuit filed by a Missouri college student may soon provide some answers to these questions--with important implications for academia.

The lawsuit, Brooker v. The Governors of Missouri State University (MSU), was filed on Oct. 30 by the Alliance Defend Fund on behalf of Emily Brooker, a student in the university's school of social work. The ADF, a Christian legal group that advocates religious freedom, accuses tax-funded MSU of retaliating against Brooker because she refused to sign a letter to the Missouri Legislature in support of homosexual adoption as part of a class project.

Gay adoption violates Brooker's Christian beliefs.

ADF says the letter violated her First Amendment rights to free speech and freedom of religion; the subsequent punishment violated her Fourteenth Amendment rights to due process and equal protection.

MSU President Mike Nietzel promises a full investigation that will "reflect thoroughness, thoughtfulness and care."

MSU released a statement that reads, in part, "Missouri State University has been and is committed to protecting the rights of its students, as well as its faculty and staff, including free speech and expression, and freedom of religion."

MSU officials also pointed to established policies for students who feel "disrespected" by professors and to the non-discrimination policy printed in the syllabi that all students receive.

Nietzel and other university officials declined further comment, however, until the investigation renders results. Unfortunately, for the purpose of examining the case, the available "facts" of the case come almost entirely from Brooker's lawsuit.

It alleges the following:

In 2002, Brooker entered MSU for a bachelor of social work degree. In Spring 2005, she enrolled in "Social Welfare Policy and Services I" taught by Frank G. Kauffman, a non-tenured assistant professor. The course was a requirement; that is, Brooker could not graduate without passing it.

When Kauffman reportedly "engaged in leftist diatribes denigrating President Bush," Brooker and several other students objected. She received an atypically bad grade which, after a year of effort, was successfully appealed.

Unfortunately, Kauffman taught another required course that Brooker attended in Fall 2005. Students were required to engage in a social work advocacy project of their choice; Brooker chose "homelessness," but Kauffman ordered the entire class to focus on advocating for the rights of gays to adopt and serve as foster parents, which he strongly favors.

(Missouri and Florida are the only two states in which gay men cannot adopt children. In Missouri, the issue is in flux not merely in election rhetoric but also in the judiciary; for example, a Missouri judge ruled in February that a lesbian could not be denied a foster care license because of her sexual orientation.)

Using a draft that Kauffman provided as their guide, the students were to compose and individually sign a letter on MSU letterhead in support of gay adoption which was addressed to the Missouri State legislature. The signature is key. Drafting a statement with which you disagree can be a valuable intellectual exercise; signing an addressed letter is an endorsement.

The signature -- unlike the context in which it arose -- could be a matter of permanent and public record.

Brooker declined. Eventually Kauffman agreed that she could write "an alternate letter." Before this agreement occurred, however, Brooker and another student went to an outside professor for advice. Perhaps due to pressure from coworkers, Kauffman dropped the letter campaign.

After Brooker completed the course, she learned that Kauffman had filed a Level 3 Grievance against her. A Level 3 is the most serious charge that can be directed at a student's academic performance, and such a mark on her record significantly impairs Brooker's potential for employment or enrollment elsewhere.

The School of Social Work's Standard of Essential Functioning states, "More often, a Level 3 review is conducted when concerns have not been resolved in prior reviews…or when the student is being considered for withdrawal or discontinuance in the program."

Brooker had undergone no prior review.

On Dec. 16, Brooker faced a two-and-a-half hour ethics review conducted by faculty, including Kauffman. Brooker was permitted neither legal representation nor her parents' presence. A written transcript of the meeting was not allowed.

It should be noted, however, that this is standard procedure in academia. Closed and unrecorded hearings at which students are not allowed legal representation are common on campuses across North America.

Three accusations were aired. One was 'tardiness' for which no other MSU student had ever received a Level 3 review. The overwhelming focus, however, was on her refusal to sign Kauffman's letter.

The education journal Insider Higher Education reported, "According to the [ADF] complaint…faculty members asked Brooker: "'Do you think gays and lesbians are sinners? Do you think I am a sinner?'"

In their third accusation, the committee allegedly claimed "that Ms. Brooker's Christian beliefs conflicted with the National Association of Social Worker Code of Ethics (NASWCE)." It demanded she write a paper on how to "lessen the gap" between her personal beliefs and professional obligations.

At a later meeting, as a condition of continuing her degree, Brooker was required to sign a contract pledging to conform to the NASWCE. However Allison Hadelhaft of NASW's national office denies that the group's ethics code requires a social worker to hold a specific view on homosexuality or to compromise their religious beliefs.

Brooker received a one-day deadline to sign. She complied under protest.

Brooker's complaint declares, "Statements in the contract implied that Ms. Brooker had engaged in additional unprofessional behavior. Further, there were several contradictions in the language of the contract."

Brooker graduated on May 19, 2006. This lawsuit is a test case that almost certainly will go to court or result in a very public apology that alters MSU policy. It asks not only to remove the stain of a Level 3 from Brooker's record but also to compensate her financially.

If successful, the lawsuit may reverberate through academia. The tax-funded policies at MSU are similar to those in other universities where parallel dramas play out.

For example, last year Rhode Island College’s School of Social Work required a master’s degree student, who identified himself as politically conservative, to publicly advocate for political causes to which he morally objected. When the student refused, he was informed "he could no longer pursue a master’s degree in social work policy" at the college.

David French, a senior legal counsel with ADF, said the Brooker case illustrates the brazenness with which universities now violate a student's freedom of conscience.

"A person was forced to publicly state a position on a hot-button cultural issue to her own government that she disagrees with. You can’t get a more fundamental violation of the First Amendment than that…Brooker objected, and then she was subject to investigation and punishment," French said.

The case is being painted as "Christian versus leftist" or "conservative versus liberal," but it is far more. It reaches to the heart of freedom of conscience, whatever the content of the conscience may be.

No one -- not the president of the United States, not the Supreme Court -- can rightfully require you to advocate for policies with which you disagree. The right not to speak is fundamental to human liberty. Indeed, freedom of conscience cannot exist without it.

Wendy McElroy is the editor of and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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