We just discussed the case of a John Marshall law professor who was suspended after using the censored version of the “n-word” on an exam. Now, another widely reported case has been resolved involving a professor who used the word in a class addressing such offensive terms. However, the restatement by Duquesne President Ken Gormley has a curious but signature touch: it may be rescinded if Professor Gary Shank ever engages in similar conduct. (It is reminiscent of Gormley’s earlier position that President Joe Biden could “unpardon” former president Donald Trump). The reinstatement however still does not resolve questions of academic freedom and indeed magnifies such concerns with its punitive elements.

According to the Pittsburgh-Post Gazette, Gormley only agreed to a reinstatement if Shank would undergo a seven-month suspension without pay, agree to a diversity training program, accept a letter or reprimand and additional conditions. Moreover, he would be fired if he ever does anything like this again.

However, grievance committee reportedly found that Shank did not use the n-word with any “malicious” intent and was simply “misguided.”  It opposed his firing.

Shank was teaching an educational psychology class online and one of his students posted the video to Twitter.  While there are sometimes questions over germaneness in the use of such terms, but there is little question that it was germane to the lesson plan. Shank was discussing a presentation slide titled “Race (from a cultural sense)” which stated that “Based on perceived physical differences. Values assigned to race is cultural not physical.”

One can legitimately question whether a professor should use the word or a censored version like references to the “n-word.” However, there was no rule at the university against the use of the word and his use was found not to be malicious.

That brings us back to the conditions for reinstatement, including mandatory diversity, equity and inclusion training ” and completion of a course in “Leading Diversity, Equity and Inclusion.”

The long list of sanctions seems in conflict with the non-malicious finding and the fact that it did not contravene a school rule.  The case raised serious concerns over academic freedom and the sanctions are likely to increase those concerns. He is still facing unpaid months and mandatory training over the use of the term.

Gormley’s threat of a later firing seems to allow him to undo the resolution of the long dispute. Gormley previously wrote in the Washington Post that not only can Trump not pardon himself but that Biden can “un-pardon” him if he does. The Washington Post regularly published highly dubious theories on impeachment and other issues related to Trump, including columnists who misrepresented the standing law or the actual rulings of court cases.  This column however was breathtaking. Gormley in my view is wrong on both claims, but the suggestion that a later president can unpardon someone borders on the bizarre. It shows the distortive effect that Trump had on legal analysis.

You do not have to agree with the use of the word in this class (which I do not) to recognize that the freedom of academics to make such choices.  We have seen professors facing disciplinary demands for assigning material or cases using this word or reading it from literary works or opinions.  Such matters can be addressed by faculties in discussing how best to approach such material but the use of formal sanctions leaves great uncertainty as to the scope of academic freedom.

Short of termination, it is hard to imagine a more punitive package than the one issued by Gormley. If his use of the term was viewed as germane and within the scope of academic freedom, the measures would be improper. The finding that the use of the term was “misguided” sounds like it was found germane but unnecessary or unwarranted. That would still suggest that it was within the scope of academic freedom, which is not about making ideal choices but pedagogical choices.

Source: Jonathan Turley

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