The Other “F” Words: Fired & First Amendment

By: Robert Glueck & Halee Snellgrove Maturin

Ned Stark believed that the man who passes the sentence should swing the sword. Yet when he attempted to exercise his right of free speech and denounce the King of Westeros, Stark faced a different kind of due process. No one will argue that our modern notions of free speech are not even remotely similar to King Joffrey’s. Nevertheless, Dr. Teresa Buchanan believes that within the university setting, both free speech and due process could be refined.

Buchanan, formerly a tenured professor of early childhood education at LSU, was dismissed from the University on June 19, 2015. Following an investigation by LSU Human Resources Management and a subsequent hearing before a Faculty Committee, Buchanan was found to have violated the Americans with Disabilities Act and the University’s policies on sexual harassment. Prior to her dismissal, Buchanan served on LSU’s faculty for nearly twenty years.

Buchanan first learned of the allegations against her on December 20, 2013 when Dean Damon Andrew of the LSU College of Human Sciences and Education informed her that she had been removed from her teaching position pending an HRM investigation into complaints made against her by an LSU student and a local school superintendent. These complaints were based on Buchanan’s use of profanity, including her repeated use of the phrase “F… no” and her use of a slang term for vagina which implies cowardice.

After finding that Buchanan’s use of language had violated the University’s policies on sexual harassment, but finding no evidence of an ADA violation, a committee of LSU faculty members recommended to President F. King Alexander that Buchanan be censured. President Alexander acknowledged the Committee’s recommendation but recommended that the LSU Board of Supervisors dismiss Buchanan [based on both the faculty committee’s findings and the HRM findings.]

With regard to her use of profanity, Buchanan believes her words “were taken out of context and misinterpreted.” Buchanan admits to using “F… no” during a conversation with a faculty member who interrupted one of her classes, while the slang term for vagina was used off campus during a simulated parent-teacher conference. Buchanan also acknowledges “occasional use of profanity and off-flavor jokes” but defends her use of those words as part of her teaching methodology. According to Buchanan, the University’s attempt to regulate her methodology amounts to a violation of her academic freedom.

According to our own Constitutional Law Professor Paul Baier, no freedom is absolute, even those promised by the First Amendment. An individual’s freedom of speech always has limitations, such as it must be in an appropriate setting and must abide by any other state or federal laws. The academic freedom that Dr. Buchanan has claimed as protection is also not absolute. While it is true that college professors have great leeway in what they can teach and discuss in their classrooms, they must stay within the bounds of their curriculum and maintain professionalism.

Professor Baier adds that with any issue of First Amendment rights violations, the facts of each case are paramount and the outcome of the case is wholly dependent on the facts. He states that Dr. Buchanan’s scenario “depends on the facts – I always emphasize that – it would depend on the circumstances as to whether she would have free speech protection against this firing.” Professor Baier also reiterates that every constitutional freedom, even that of free speech, has its limits.

LSU has issued a statement denying Buchanan’s assertions regarding her academic freedom, which also states that Buchanan’s removal was necessary in light of a “consistent pattern of hostile and abusive behavior that negatively impacted LSU students.”

Buchanan acknowledges that her teaching methods are designed to create some degree of discomfort “as part of a sound pedagogy” but says that she has never been told by a student that her language was offensive. “Had it been pointed out to me that a student was uncomfortable I would have corrected my behavior and language immediately,” she says. Buchanan believes that the University’s decision to initiate dismissal proceedings instead of allowing her to correct her behavior amounts to a violation of her due process rights.

While LSU has not commented directly on the issue of due process, PS-104, which is LSU’s Policy Statement regarding Dismissal for Cause for Faculty Members, provides that dismissal proceedings should be initiated “after a full and careful investigation according to the procedures of due process.” PS-104 also provides that exercise of academic freedom “shall not be grounds for dismissal or disciplinary action.” However, the policy statement does not mandate that a faculty member be given opportunities to correct his or her behavior before dismissal proceedings are initiated. Most notably, PS-104 also states that the final decision regarding a recommendation for dismissal with cause rests with the Chancellor.

While there is no indication that LSU’s dismissal of Buchanan has violated its own policies, Professor Baier is still unsettled by the University’s decision. He believes that it is possible Buchanan should have been given an opportunity to rehabilitate her behavior based on his understanding of the situation. Professor Baier adds that “the facts of record cause serious doubt about the fair play and serious doubt as to whether due process of law was afforded to Professor Buchanan.”

The American Association of University Professors has sided with Buchanan on the issue and has issued letters to the University condemning its decision to dismiss Buchanan. In addition, the LSU Faculty Senate is considering recommending that President Alexander be censured during its October 6 meeting, based on Alexander’s decision to fire Buchanan.

Despite the legal issues raised by her dismissal, Buchanan says she is not currently pursuing litigation against the University. Presently, her priorities are “gas and groceries” along with finding a new job. As Buchanan appears to be focusing only on the essentials, perhaps it would be best to follow her lead. As any Stark will remind you, “Winter is Coming.”