News
Twisting in the Wind
When Merle H. Weiner was hired as a law professor at the University of Oregon, she was told that one of her duties was to write articles and books -- and she did just that, publishing extensively on her areas of expertise, one of which is domestic violence.
But Weiner found out this year that even if the university expects her to publish, she was on her own when she faced a threatened suit over one of her articles, even though the university never contested the quality of the article and even though she had obtained legal opinions that she would prevail in court -- if only someone had agreed to pay the bills necessary to fight.
When no one would commit to paying the anticipated legal bills, the journal that published Weiner -- also unable to pay for a defense -- removed from its electronic archive the reference that led to the threatened lawsuit. While the University of Oregon's lawyer had urged her to have the journal do just that as a way of avoiding a suit, Weiner opposed this action as giving in to a threat and denying her the right to publish her work in full.
She said that the incident has hurt her ability to do her work on domestic violence and raises issues for any scholar who may publish on works that might lead someone to want to sue them.
"Any time any alleged batterer wants to threaten suit, I'm going to have to defend myself, no matter how unmeritorious the suit is," Weiner said. "If my institution wants me to be doing my job, they need to be standing behind me."
The American Association of University Professors agrees that in cases like this, colleges should provide a defense for their professors. And Oregon's Faculty Senate is now considering whether to ask the university to change its policy of not providing such defense. But university officials defend their approach -- and one prominent academic who was herself sued for her writings, and who won in court, warns that there may be a down side to having colleges defend their professors' writings.
The article in question, published last year in the University of San Francisco Law Review, concerns the handling of child custody suits under international law in cases where one possible home for a child may not be safe. The article made two brief references to a court dispute in one such case and one of the parties to that dispute threatened to sue.
When she learned of the threat, Weiner said, she wasn't worried because she felt that she had her facts right.
"I never imagined in my wildest dreams that my university would leave me hanging, that any of this would have transpired," she said. As both Oregon and San Francisco wavered on defending her, she wanted an outside expert to verify that she would win in court. Rodney A. Smolla, dean of the law school at the University of Richmond, reviewed all the materials and provided an analysis that Weiner had a strong defense. He also wrote in his analysis that the case raised academic freedom issues and urged those involved to consider that when deciding how to proceed.
The University of Oregon, however, viewed the matter in a different way. In a statement released by the university, it said that -- as was "customary" -- Weiner had agreed to indemnify the University of San Francisco against actions arising from the article. While the university was happy to advise Weiner on the case, it did not feel any obligation to defend her, the statement said.
"The Board of Higher Education does not view an academic staff person's general obligation to produce scholarly works as a specific assignment. As a result, the board and university do not participate in the specific relationship between a faculty member and the faculty member's publisher of scholarly materials," the statement said. "Also as a result, the State of Oregon has not historically provided legal representation or advice regarding matters related to faculty members' scholarly publications."
As for the law review, David Scopp, its editor in chief, said that the decision to remove the references from Weiner's article was "dictated by in-house counsel" at the university and did not reflect any review of the accuracy of those passages.
Roger Bowen, general secretary of the American Association of University Professors, said that under his group's policies, the university should have backed Weiner. The events that transpired with regard to her article were "blatant censorship" and "an obvious infringement on academic freedom," he said.
Bowen said that with some conservative groups encouraging students or others to look for reasons to sue professors, faculty members "are vulnerable and need protection."
Not all professors who have been sued agree. Deborah Lipstadt, an Emory University historian of modern Jewish history, faced a libel trial in Britain nearly a decade ago after her book Denying the Holocaust: The Growing Assault on Truth and Memory was published there. She was sued by David Irving, a Holocaust denier whom she called a Holocaust denier, and Lipstadt won -- even though libel laws in Britain are much easier on plaintiffs and more difficult for defendants than are such laws in the United States.
Lipstadt said that she was fortunate to have had a defense fund with money raised by people concerned about the suit, and that she never asked for Emory's help with her defense. (She added that Emory "supported me generously and without asking" in many other ways.)
But while Lipstadt well understands what it's like to be sued, she doesn't like the idea of colleges being automatically expected to defend a professor. "The only way they could do so is by having their lawyers vet what people have written. How can you ask a university to pay for someone's defense if they have had no say in what the person published?" she said. "And it would be a nightmare if universities started vetting people's work."
At the same time, Lipstadt said it was "disingenuous" for Oregon to say that Weiner's publishing work isn't part of her employment. "She would not be regularly employed if she did not publish such articles."
As for Weiner, she said she believes that if colleges take Oregon's approach, other professors will be sued by plaintiffs who know that faculty members lack the resources to defend themselves. "My fear is that this is a tool that is going to be used by certain groups and certain people to stop feminist professors and others from writing on issues that they don't like," she said.
Already, Weiner said, she has turned down at least one writing project because she feared it would require her to to write about cases involving people who might sue. "This has impacted my ability to do my job," she said. "I'm very cautious now."
