Abstract

Excerpted From: David A. Green, Reminiscent of the Little Rock Nine and Ruby Bridges: Present Day Racially Offensive Comments That Create a Hostile Educational Environment, 23 Connecticut Public Interest Law Journal 72 (Fall, 2023-Winter, 2024) (110 Footnotes) (Full Document)

Dr. William Anderson is a full professor at Anystate University, within the University's College of Arts & Sciences, Liberal Arts and Humanities Department, and has been at the University for over 20 years. While Dr. Anderson has always made controversial comments and has not been popular with students of color, during the last five years, he has been extremely bold, spouting borderline racist statements. He created a blog for his students to read following the death of George Floyd, where he made statements such as “black folks would not have trouble with the police, if they only cooperated and followed the police officer's directive.” He further stated that the major problem involving white police officers interacting with the African American community is that “many of these black kids don't have any home training.”

After the COVID-19 pandemic hit, which he only refers to on his blog and in class as the “China virus,” Dr. Anderson recommended that the country revisit the idea of “concentration camps.” During his philosophy class, he required freshmen students to write a paper on how American slavery was a benefit to the “primitive” African tribes. During the spring of 2021, students of all races demanded that actions be taken against Dr. Anderson, specifically that he be terminated. There were numerous protests, marches, letter writing campaigns and a threatened sit-in. Dr. Anderson takes the position that his actions are protected by both the First Amendment and academic freedom. The University seeks to terminate its relationship with Dr. Anderson and wants to avoid any litigation.

As the political tension in the country intensifies, it seems that the country is going back in time. This tension is highlighted in the school setting, particularly in the university systems. The proliferation of racially implicated incidents across American universities is reminiscent of the opposition to the efforts to integrate public schools and the pictures of Elizabeth Ekford and Ruby Bridges. The picture of Elizabeth Ekford, taken in 1957, captures Ms. Ekford, as part of the Little Rock Nine, desegregating Little Rock High School in Arkansas as white citizens yelled racial epithets at her. The poignant picture of Ruby Bridges captures the little girl at the tender age of six entering an elementary school in New Orleans surrounded by United States Marshalls. While students may also feel unwelcome due to their gender, sexual orientation, disability, religion, national origins, and political affiliation, this article will address how some students of color, particularly African American students, feel unsafe and often attacked by their own professors. The hypothetical above involving Dr. Anderson is designed to reflect the present-day environment and demonstrate that it has the same impact as the environment of the late 1950s and early 1960s, when African American students were overtly told that they were not welcome in schools.

Part II of this article will provide a historical overview of the opposition to educational integration and the hostility faced by African American students. Part III will discuss the concept of academic freedom and a review of Supreme Court decisions involving academic freedom in the context of the First Amendment. Moreover, this section will discuss the lower courts' application of academic freedom and the uncertainty of the law as it relates to First Amendment rights in the educational setting. Part IV of the article will discuss the present-day climate, the tension between academic freedom and a hostile education environment and the attack on critical race theory jurisprudence. Finally, Part V will recommend that university systems, including accrediting bodies, take the lead in directly providing guidance to ensure a welcoming educational environment for all faculty and students.

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The Supreme Court was correct in deferring to the public school systems in addressing issues of academic freedom and regulating the actives of faculty and students in an educational setting. Public university systems must take the lead in establishing reform and regulating activities on campus in order to rightfully protect academic freedom, while concurrently ensuring that the educational environment is not hostile and that all faculty and students feel welcomed. Constituents of faculty governance must ensure that tenure and promotion procedures provide clear criteria for acceptable and unacceptable behavior. In addition, accrediting bodies--like the ABA, whose standards are presently lacking in clarity--must revise their standards to provide clearer directives on measuring appropriate behavior by faculty. These bodies should be guided by the standards established in sexual harassment employment discrimination cases, where the Supreme Court provided a two-prong objective and subjective standard on when a claim is actionable. Similar to the Supreme Court standard, internal review of faculty behavior should be based on an objectively reasonable standard and a subjective standard based on the effect on the offended person. The tension between academic freedom and racially offensive comments must be addressed, and the shared governance process within the educational setting must take the lead in reform. A reviewing court should only intervene and overturn an academic decision if “it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” The time to take action is now.

Professor of Law, North Carolina Central University School of Law; LL.M., Temple University School of Law; J.D., Georgetown University Law Center; B.A., Georgetown University.