by George Leef
Courts have repeatedly ruled that colleges and universities violate the First Amendment rights of professors when they retaliate against them for having said things administrators dislike. Nevertheless, such cases continue to arise. Victories for freedom of speech have not stopped the abuse of power by intolerant officials.
The reason why is that those officials don’t have to fear personal liability for their actions. The school might lose, but the officials won’t have to pay for the costs they caused. The money to pay damages comes from the school, not from them. And why is that? The answer is “qualified immunity.”
Qualified immunity is a legal doctrine created by the Supreme Court in a 1967 case. The Court thought it wise to shield public officials from liability when their actions violated the rights of citizens. The theory was that officials might be deterred from doing their jobs if they had to fear lawsuits when they had to make quick decisions later adjudged to have been wrongful. That might make sense in some circumstances, but the qualified-immunity defense has grown to the point of absurdity. College officials now routinely say they are immune from personal-damage suits when they violate the rights of faculty members.
A prime example is the case Josephson v. Ganzel.
Dr. Allan Josephson (pictured above) had been professor of psychiatry and the chief of the Division of Child and Adolescent Psychiatry and Psychology at the University of Louisville School of Medicine since 2003. Under his leadership, the number of faculty had grown, and the number of patients seen had increased. He received perfect scores on his annual reviews for years running and authored many books and articles.
Then, in 2017, Josephson made the mistake of questioning one of the pieces of current “progressive” orthodoxy in medicine, namely that young people who say that they experience “gender dysphoria” should immediately receive “gender-affirming care.” After he expressed his reservations about that in public, “woke” faculty members at the university went after him.
In October 2017, Josephson spoke at a panel discussion (“Gender Dysphoria in Children: Understanding the Science and Medicine”) sponsored by the Heritage Foundation. Among his points were that gender dysphoria is a socio-cultural phenomenon that cannot be fully addressed through medicine and surgery; that children often demand things that are not good for them, and it’s up to parents and other adults to resist those demands; and that transgender ideology neglects the child’s need to learn to cope with problems.
When news about his presentation got out, it ignited a firestorm of protest, beginning in the university’s LGBT Center. Two officials there objected to Dr. Josephson’s remarks. Of course, their objections did not take the form of counter-arguments based on medical evidence but merely a demand that Josephson be disciplined or punished by the medical school. He was accused of “discrimination” against transgender individuals because he disagreed with their opinions. He was also accused of denying that some people identify as transgender, which was untrue, but it added fuel to the fire. They also insisted that Josephson apologize to the university for his incorrect medical views.
The complaints had the desired effect. In November 2017, school administrators demoted Josephson from his position as division chief. The justification provided for this was that his views on gender dysphoria deviated from the school’s official curriculum. But, in fact, there was no such official curriculum. Even if there had been, a professional like Josephson should be free to speak his own mind.
In addition to the demotion, Josephson was given a host of assignments that would ordinarily be handled by junior faculty. He was prohibited from attending faculty meetings, overseeing scholarly activities, recruiting faculty, and serving on a taskforce studying overuse of medication in foster children. And his pay was reduced. Without doubt, the school had declared Dr. Josephson persona non grata.
But that wasn’t enough. In March 2019, Josephson was informed that his contract would not be renewed, an unprecedented step for a senior faculty member.
The heretic would at last be gone.
With legal assistance from Alliance Defending Freedom, Josephson filed suit against the university officials responsible for all this adverse treatment. He argued that they had violated his rights under the First Amendment by retaliating against him for his statements. Also, by punishing him under vague and overbroad standards, they had violated his due-process rights under the 14th Amendment. The suit sought a declaratory judgment that the school officials had violated his rights, a renewal of his contract with restoration to his former position, and compensatory and punitive damages.
Rather than admitting its wrongful actions, the university moved to have the case dismissed in federal district court. The judge would not dismiss it and pointedly held that the defendants could be sued personally.
So the university appealed to the Sixth Circuit Court of Appeals. Last October, the Sixth Circuit held on appeal that the case can go forward, specifically stating that the district court was correct in denying the defendants’ argument that they can’t be sued personally because qualified immunity protects them. The Sixth Circuit’s decision also shreds some desperate defense arguments, such as that Dr. Josephson had been speaking in an official capacity at the Heritage Foundation and that his expressed beliefs somehow interfered with the operation of the school.
On the crucial issue of qualified immunity, the Sixth Circuit held that the case law is sufficiently clear that public universities may not retaliate against professors for statements on matters of public interest within their field of expertise, stating, “During the relevant period, it was beyond debate that the First Amendment barred retaliation for professional speech.”
In short, the defendants at the University of Louisville will not be able to say, “We can’t be held liable because we didn’t know our actions were violating Dr. Josephson’s rights.” They ought to have known better. The case will now go to trial.
This case reminds me of the Oberlin College case of several years ago, when an Ohio jury found for the plaintiffs, owners of a business that the school defamed as racists, handing down a $30-million verdict against Oberlin. That was not a First Amendment case, so qualified immunity was not an issue, but the similarity is that a jury of ordinary people (this time in Kentucky) is unlikely to have any sympathy for intolerant leftist academics who thought it proper to get a veteran, highly competent medical professor fired just because he disagrees with them on how best to respond to young people when they claim gender dysphoria.
It would not surprise me if the defense concludes that it ought to settle, but I hope it chooses to fight to the finish. A costly defeat for the intolerant ideologues who felt justified in sacking Dr. Josephson would send a loud message through the higher-education world.
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George Leef is director of external relations at the James G. Martin Center for Academic Renewal.
Photo “Dr. Allan Josephson” by Alliance Defending Freedom.
