April 6, 2022
PRINCETON’S FREE SPEECH RULE DECEPTION
HOW, IN A HIDDEN OPINION, PRINCETON EVISCERATED ITS RULE
By Edward L. Yingling and Stuart Taylor, Jr. -- cofounders of Princetonians for Free Speech
This is the first of what will be a series of articles by PFS discussing the March 31 letter “the letter”) sent by Princeton President Christopher Eisgruber, in which he totally dismissed legitimate concerns raised in a letter from the Academic Freedom Alliance (AFA) with respect to the University’s attacks on Professor Joshua Katz. We find the Eisgruber letter to contain so many distortions and omissions that it would take too long to address them all in one article.
We will start with an issue that was not addressed in the Eisgruber letter but should have been, as it is an important part of what Princeton has done in this whole sordid affair. We are referring to a nonpublic (until PFS exposed it) December 7, 2021, ruling by Vice Provost for Institutional Equity and Diversity Michele Minter (“the Minter ruling”). The ruling was in response to a formal complaint filed by eight distinguished members of the Princeton faculty, alleging violations of Princeton rules by administrators involved in the creation of the presentation “To Be Known and Heard” (“the presentation”). That presentation is the central issue, but far from the only one, in the matter in question.
The Minter ruling completely rejected the professors’ complaint based on findings that are false or otherwise indefensible, as explained below. The most egregious finding is a new and utterly illogical interpretation of Princeton’s acclaimed free speech rule that eviscerates its protection of free speech. By implicitly upholding the Minter ruling, which Eisgruber declined in December 2021 to review when it was appealed to him, he has left Princeton with a hollowed-out free speech rule that provides no protection in the vast majority of situations for faculty or students who are smeared, bullied, harassed, or otherwise mistreated for their speech.
The Minter ruling is contrary to the language and intent of the University’s Statement on Freedom of Expression, Rule 1.1.3. It also completely violates widely used legal principles of construction for interpreting statutes and rules. It takes a definition of the word “harassment” from a completely different rule, 1.2.2, and applies it to the free speech rule. (Here is a link to Princeton’s rules.)
Under widely used principles of construction for interpreting rules, a definition of a term must either be in the rule itself, or there must be a separate definitional rule that specifically says definitions in it apply to the terms wherever they are used. One simply cannot lift a definition from one rule and apply it to another. In addition, in this case the rule from which the definition is lifted covers a different and much narrower topic.
The University’s free speech rule is adopted verbatim from the Chicago Principles, which are considered the gold standard for protecting free speech and academic freedom on campuses. These Principles have been adopted in one form or another by over 80 colleges and universities. The Princeton rule contains a general protection of all free speech but lists narrow exceptions: “The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University.”
The exception with respect to harassment is not designed to override Rule 1.1.3’s protection for criticism -- even very hostile criticism -- of professors or students by others. It is designed draw a line preventing Rule 1.1.3 from protecting extreme harassment, such as a mob shouting down a speaker to prevent her from being heard, or such as using social media to attack and ostracize a professor or student in an attempt to drive her out of the University. The latter type of extreme harassment also violates tort law principles against intentional infliction of emotional distress.
There are court cases and academic writing in support of the concept that speech that stops or intimidates others from speaking is not protected as free speech. The point is that if we can all stop each other from speaking, there is no free speech.
The Minter misinterpretation, implicitly affirmed by the Eisgruber letter, removes Rule 1.1.3’s protection from almost all instances of harassment for speech. Minter found explicitly that the freedom of expression rule protects speakers like Katz from harassment or abuse only if it is “based on a protected characteristic” of the speaker (such as race, creed, color, or sex) -- despite the fact that Rule 1.1.3 does not contain the words “protected characteristic.” This gross and deliberate misinterpretation eviscerates the rule’s clear intent. The Minter ruling then explicitly states that the words in Katz’s July 2020 article in Quillette for which he has been attacked “are not a ‘protected characteristic’” and thus that harassing him for those words “could not result in a policy violation.” In doing so, Minter also negates protection from harassment for almost all types of speech by other people.
So it is that Minter’s nonpublic ruling and Eisgruber’s implicit affirmation of it have gutted the University rule that was intended to and purports to protect free speech, leaving speakers unprotected from extreme harassment in almost every case.
The only reason the Minter ruling is in the public sphere is that PFS obtained a copy and released it. Any prospective student, the parent of such a student, or a prospective faculty member looking at the Princeton website or obtaining a copy of Princeton’s rules would have no idea that the free speech rule does not mean what it says. They would think free speech is protected when in the great majority of cases speakers have no protection from being attacked and bullied.
Here is an analogous hypothetical: College X has a clear and robust rule against sexual harassment on its website, which can be seen by prospective students, the parents of students, or prospective faculty. People look at it and are attracted to the college in part based on that rule. However, not available to the public, the college has an interpretation that there is no protection unless there is a physical assault. What would people think?
When one of the eight professors appealed the Minter ruling to Eisgruber, he bucked it to the Dean of Faculty, Gene Jarrett, who summarily approved the ruling. So, Princeton officially has a nonpublic interpretation behind the curtain that guts its rule. Is Princeton misleading people? It obviously is. Is Princeton acting unethically in having this hidden interpretation of its rule? We believe so. Is Princeton violating its “contract” with students and faculty who go to Princeton? People can decide for themselves, but consider the following:
Some courts have ruled that employee manuals create an implied contract of employment and that when a company violates those manuals in its treatment of an employee, the employer has violated the contract. Similarly, there is a strong argument that the rules of a university create an implied contract with faculty and students. Faculty certainly enter employment with a university and continue employment believing that the university will follow its rules. A university may change its rules, but the faculty member can then see the new rules and decide to stay or not. Plus, the faculty member knows in advance that the rules can be changed. But if a rule is not what it says it is, if there is a secret interpretation of it that very much changes what the rule says on its face, that is another matter. It unfortunately may take a lawsuit to force Princeton to address its dishonest handling of its free speech rule.
PFS will continue to demand that this issue be addressed. As things stand, Eisgruber can never again honestly refer to the free speech rule as written. He and his administrators have made it a sham.
Eisgruber can argue that the AFA letter did not mention the Minter ruling and therefore he was under no obligation to address it. But the Minter ruling’s severe problems were raised in the appeal to Eisgruber filed by the eight faculty members and were fully covered in letters to Eisgruber and the Board of Trustees from PFS and the American Council of Trustees and Alumni (ACTA).
Eisgruber’s letter also begs the question of why he chose to reply to the AFA letter and not to the two letters he received from PFS and ACTA weeks before or to a simultaneous harsh critique by the Foundation Individual Rights in Education. They all made the same criticisms as the AFA letter -- and added more. Neither Eisgruber nor the Board of Trustees has even acknowledged the PFS or the ACTA letter. It appears that the president of Princeton and its Board of Trustees have decided to ignore the concerns of many alumni, as well as two highly regarded groups of experts.