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What You Can't Win in Court

November 17, 2008

After you've been called racist by some students, can you sue to get your reputation back?

Richard J. Peltz, who teaches law at the University of Arkansas at Little Rock, tried. The idea of suing students intrigued and worried many observers of the professoriate, and Peltz's case prompted much discussion about free speech and the respect that should be accorded both professors and students. Peltz has now dropped his suit -- but he did so only after the law school agreed to fully investigate the charges against him and after he received a letter affirming that, based on that investigation, he had done nothing racist or inappropriate.

The university has also agreed to discuss allowing Peltz to again teach required courses, which he was barred from offering once the complaints against him were filed.

Amid the demands of some black students that he be punished, and his lawsuit against them, Peltz revealed few details about the incidents that led to the controversy. But with the suit dropped and with a university investigation backing him, Peltz shared various documents about the case, and agreed to talk about it.

"This suit was never about money," he said. "It was about my reputation. I work very hard to be a very good teacher, and I felt that was impugned by the university's lack of support. I feel that now with the university's support, I am on the road to repairing my reputation." He also said that the experience has altered his once idealistic views about American higher education.

"When I started teaching 10 years ago, I thought universities were the quintessential market place of ideas. I was so naïve, and so, so wrong," he said. "It's not an open market place of ideas -- I hope we can get back to that notion because our society desperately needs places where we can have truly free discussion. I just can't say I see that in the American university today."

The demands for Peltz to be punished and removed from teaching required courses came from the Black Law Student Association at Little Rock and from a local group of black lawyers -- groups whose leaders Peltz sued and who did not respond to requests for comment either now or when the suit was filed. The complaints concerned a series of class discussions in his constitutional law course that touched in some way or another on race or affirmative action. The complaints started after Peltz participated in a campus debate on affirmative action -- at the invitation of the black law students' group -- and argued against it.

The various accusations against Peltz were circulated to people at the law school in memos that Peltz cited in his defamation suit. In his own detailed accounting of the charges, now backed by the university, he answers the charges against him point by point.

One of the examples of his alleged racial insensitivity was that he used an article on the death of Rosa Parks from The Onion to prompt class discussion. The black students' memo called The Onion "a conservative based medium that uses satire" and said that the article "poked fun at the contribution Rosa Parks made" to the civil rights movement. As Peltz has noted, The Onion is not seen by most people as conservative and in fact regularly makes fun of conservatives (as well as liberals), and the article in question appears to mock, not Parks, but Republicans who think that racial discrimination is all in the past.

"The point that I made with the article, explicitly in class, was that the subtext of The Onion's commentary is correct, i.e., that our society still suffers from the pain of race discrimination and struggles to achieve equal protection for all persons under law, even these many years after slavery and the Civil War, and after Jim Crow and Brown v. Board," Peltz wrote in a memo he is now giving out to answer the charges against him.

Another accusation against him was that -- in the same time frame when he had criticized affirmative action -- he was insensitive in passing out "a basic grammar worksheet" to the class and telling students to focus more on their writing. There was no accusation that he focused on the black students, only that he raised this issue shortly after he has been critical of affirmative action. On this charge, Peltz noted that faculty members had been urged by the state Bar to focus more on writing issues because some law students were in danger of failing the Bar exam due to poor writing skills. While defending his intent, Peltz pledged in his new memo to never again offer the writing tips "lest I again be maligned for trying to improve student writing."

He was also accused in the black students' memo of letting a white student give incorrect information about the Grutter v. Bollinger case (the landmark 2003 Supreme Court decision upholding the way the University of Michigan operated affirmative action in law school admissions) in a way that "set the tone for the black students in the class to have to defend why they were admitted into this law school."

Peltz said that he wouldn't have let any student give incorrect facts that were material to a case, and that he can't be expected to limit discussion in such a course. "I do not believe that topics covered in the Constitutional Law class should be constrained by the possibility of distaste on the part of particular students," he said. "Were that a proper basis for making pedagogical decisions, we might not cover seminal cases such as Roe v. Wade. Such censorship runs contrary to democratic ideals and has no place in the classroom."

In terms of what Peltz actually believes about affirmative action, he said that he generally is opposed "because it looks to me like race discrimination and I find race discrimination abhorent," but he added that his opinion is more "nuanced" that complete opposition. "I understand that there is gross racial disparity in our society" and, as a result, he said he can see why some favor the consideration of race as a "plus factor" in decisions, and he views such policies as different from those in which race or ethnicity is an overriding factor.

As various accusations circulated about Peltz, the law school didn't say that hs was in the wrong, but it didn't say he was being unfairly accused, either -- and it prevented him from teaching constitutional law or other required courses, relegating him to electives. The statement from the university that Peltz said made him comfortable dropping the suit reviewed the various charges and said that there was no basis for calling Peltz racist. "With reference to any charge of racism levied against you, there is no evidence that you are or have been a racist or acted in a racist fashion during your employment at the law school," said the statement, signed by John DiPippa, interim dean of the law school, and Joel E. Anderson, chancellor of the university.

In addition to reviewing the charges brought by students, the university's letter also cleared Peltz of a charge brought by a faculty member. At a 2005 faculty meeting, Peltz argued for hiring as faculty members only candidates who already have published scholarship. One of his colleagues accused him of racism because one of the job applicants for a position at the time was an African American with no published scholarship. Peltz said his comment was "global" and not in relation to any one candidate, and the university letter backs him, saying that "nothing you did or said, particularly including the criteria you suggested for consideration of hiring applicants, was inappropriate or was motivated by race."

The letter from the university does not reference the ban on Peltz's teaching required courses and the university's press office did not respond to messages seeking comment. Peltz said in an interview that he is teaching electives this semester (and enjoys doing so), and that he is confident from his discussions with law school leaders that the ban will be lifted. He said he will be careful about any discussions of race from now on, fearful of being wrongly accused again. He said he hopes his case prompts discussion elsewhere -- and will encourage professors and deans to stand up for colleagues accused of racism.

Greg Lukianoff, president of the Foundation for Individual Rights in Education, said the Peltz case was typical of many that come to FIRE in that they involve professors accused of racism or sexism based on statements or views that some students find objectionable. He said that college leaders are responsible for situations like the one faced by Peltz by not defending professors whose views are unpopular.

While racial and sexual harassment are real, Lukianoff said, universities have "created and encouraged ambiguity" by letting students believe that anything involving race or gender that they disagree with is somehow inappropriate harassment. "These absurdly overly broad and constitutionally wrong definitions," Lukianoff said, have led to "a belief among students that they have a right to punish professors they deem to have said the wrong thing."

 

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