Chronicle of Higher Education August 2, 2013 Texas Community College Fires Tenured Faculty Activist
David M. Smith, shown speaking at a conference in January, plans to challenge his dismissal in court. "I am being fired because I have been the union president and I have been helping colleagues and students with grievances," he says. Enlarge Image By Peter Schmidt The College of the Mainland, a two-year public college in Texas, has fired a tenured professor who had clashed with its leadership and some of his peers in challenging administrative directives on behalf of other faculty members. The college's Board of Trustees on Thursday voted, 6 to 0 with one abstention, to fire David Michael Smith, a tenured professor of government, based on accusations that he had been insubordinate and had violated the college's code of conduct in his dealing with administrators and other faculty members. The board's vote came one day after the American Association of University Professors warned the college's president, Beth Lewis, that such a move almost certainly would be an infringement of Mr. Smith's academic-freedom and due-process rights. Mr. Smith's termination leaves leaderless a faculty group he had headed, COMunity. The group regards itself as the college's employee union despite lacking collective-bargaining rights and being dismissed by the college's administration as a special-interest group. Mr. Smith, who has twice previously sued the college for allegedly violating his free-speech rights, said on Thursday that he planned to file a new lawsuit challenging his dismissal as a violation of his First Amendment rights. If he does, his case is likely to fuel a growing legal debate over the question of whether the U.S. Constitution affords faculty members at public colleges speech protections beyond those possessed by other public employees. "I am being fired because I have been the union president and I have been helping colleagues and students with grievances—referring them to attorneys when needed—and addressing the crisis of the college in the local newspaper," Mr. Smith said on Thursday. Ms. Lewis, however, said that she had recommended Mr. Smith's dismissal because "having an employee who has habitually harassed and intimidated his co-workers is not acceptable." She said the board "had the best interest of the college in mind" in voting to fire him. Repeated Clashes In seeking to fire Mr. Smith, the college's administration cited as just cause several acts of alleged insubordination. College officials said he had repeatedly refused in 2011, before finally relenting, to attend a training session introducing a new classroom technology that professors could use. In 2012, they said, he refused, before again relenting, to comply with a dean's directive that faculty members incorporate into their instruction new student-learning outcomes adopted by the Texas Higher Education Coordinating Board. Another instance in which he was accused of insubordination happened in the context of Board of Trustees elections this year. In March, Mr. Smith responded to an e-mail from President Lewis about legal restrictions on employees' use of college resources in the election by asking her to tell faculty members in a separate e-mail that they could engage in political activities on the campus on their own time. When Ms. Lewis refused, Mr. Smith sent college employees an e-mail that criticized her and provided his own interpretation of allowed political activities. He was accused in April of distributing campaign fliers in deliberate violation of a campus policy requiring him to first get permission from the vice president for student services. Mr. Smith had argued that academic freedom gave him the right to refuse to attend the technology training session and to embrace state-mandated learning outcomes. The First Amendment, he said, covered his challenge to President Lewis's e-mail on allowed political speech. In a statement presented at a hearing in June, his lawyers argued that Mr. Smith's supervisors and the college's administration "are insulted by his insistence on protecting his rights and the rights of others." The administration based its argument that Mr. Smith had violated an ethics-code requirement of collegiality on his repeated threats to file lawsuits against the college and the aggressive manner it said the professor had taken in challenging administrators and faculty members who disagreed with him. At the June hearing the administration said Mr. Smith had complied with some directives "only after drawn-out, exhaustive campaigns of resistance through several levels of the administrative hierarchy," and argued that his conduct and treatment of his co-workers "has had such a detrimental impact on the college environment and morale that it negatively impacts the college's mission and cannot be allowed to continue." In a report issued in July, the hearing officer in his case, Lisa A. Brown, a Houston lawyer, accepted many of the administration's criticisms of Mr. Smith's conduct but made no recommendation as to whether the college should fire him. She rejected, however, his assertions that the actions for which he was being disciplined were covered by the First Amendment and its protections of academic freedom. Ms. Brown based her conclusion that Mr. Smith's work-related activities were not constitutionally protected on a belief—still disputed in the federal courts—that faculty members at public colleges are not at least partly exempt from a 2006 U.S. Supreme Court ruling, in the case Garcetti v. Ceballos. That decision held that public agencies can discipline their employees for any speech made in connection with their jobs, but left open the possibility that academic speech has its own set of protections. Procedural Concerns In its letter this week to President Lewis, the American Association of University Professors reiterated its view that academic freedom should be seen as affording public colleges' faculty members broader speech rights than possessed by other public employees, including the right to weigh in on institutional affairs. Gregory F. Scholtz, director of the AAUP's department of academic freedom, tenure, and governance, also argued in the letter that the association's guidelines require that Mr. Smith, who had received high marks as a teacher, have a hearing before an elected faculty body rather than just an administrative hearing. Ms. Lewis said that the college had followed its policies "to the letter," even if those policies do not conform with the AAUP's recommendations. Ann McGlashan, an associate professor of German at Baylor University and president of Texas' AAUP conference, wrote in an e-mail to The Chronicle that "it is disturbing when a good and popular professor is terminated, not by his faculty peers passing judgment on his competency, but by a board of officials using the language of 'insubordination.' "The ideas of 'academic freedom' and 'due process' may be uncomfortable for some," she continued, "but they are the bedrock principles of our greatest institutions of higher education." Mr. Smith, who was hired by the College of the Mainland in 1998, has long been a controversial figure there. The college's 2002 decision to grant him tenure was opposed by some local activists based on his views as a self-described Marxist. He has previously filed two lawsuits, both of which resulted in settlements, accusing the college of violating his First Amendment rights by seeking to restrict his speech at board meetings. Mr. Smith has played a role in organizing many of the more than 20 recent lawsuits that have accused the college of discrimination, wrongful termination, or First Amendment violations. More than half of the lawsuits have been dismissed in summary judgments, but others have been settled or remain in litigation. _______________________________________________ pen-l mailing list [email protected] https://lists.csuchico.edu/mailman/listinfo/pen-l
