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Fired Georgetown Law Professor’s Comments Likely Protected Speech, Attorney Argues

   DailyWire.com
Photo taken on July 7, 2020 shows the Healy Hall on Georgetown University's main campus in Washington, D.C., the United States.
Xinhua/Liu Jie via Getty Images

A Georgetown University law professor was having a Zoom discussion with another professor about the “angst” she felt each semester after learning black students ended up with lower grades. The conversation was posted online, prompting outcry from members of the community.

The professor, Sandra Sellers, was fired this week after her comments were made public, The Daily Wire’s Charlotte Pence Bond reported. But attorney Hans Bader argued that Sellers’ comments are likely protected by her contract with the university, which claims to support “academic freedom.”

The video that led to the firing showed Sellers telling another professor, David Baston, that she ended “up having this angst every semester that a lot of my lower ones are blacks, happens almost every semester.” Baston awkwardly said “uh-uh” in response without any follow-up.

The conversation was posted to Panopto, an online database that students can access. The Black Law Student Association circulated a petition calling for Sellers to be fired and gathered more than 1,000 signatures before the school announced she had been terminated.

“We learned earlier this week that two members of our faculty engaged in a conversation that included reprehensible statements concerning the evaluation of Black students,” Georgetown Law Dean Bill Treanor said Wednesday in a letter.

On Thursday, Treanor announced that he “informed Professor Sellers that I was terminating her relationship with Georgetown Law effective immediately.”

Treanor also said earlier in the week that Georgetown’s diversity and equity office was investigating the incident and that Batson “has been placed on administrative leave pending the investigation by the Office of Diversity, Equity and Affirmative Action, the results of which will inform our next steps.”

Sellers gave Fox News a copy of her resignation letter, which included an apology for her comments, saying she was “deeply sorry for my hurtful and misdirected remarks.”

“While the video of this incident is an excerpt from a longer discussion about class participation patterns, not overall grades, it doesn’t diminish the insensitivity of I have demonstrated,” she added. “I would never do anything to intentionally hurt my students or Georgetown Law and wish I could take back my words.”

Law school grading is blind and anonymous, so it is unlikely that Sellers is purposefully grading black students lower than others, as she only learns the identities after she had submitted the grades. Attorney Ted Frank said on Twitter that the “only thing reprehensible here is the statement of the Dean throwing his faculty member under the bus instead of telling students unpleasant truths.”

Bader wrote Sellers’ firing — and the investigation and punishment of Baston for not contradicting her — violates academic freedom:

Such academic freedom has been contractually interpreted to protect speech even when it offends minority students. For example, the Wisconsin Supreme Court ruled that a professor opposed to same-sex marriage could not be punished for his speech by a private college, even though it allegedly led to members of the public expressing hostility to a lesbian graduate student. (See McAdams v. Marquette University (2018)).

Similarly, a judge ruled that an AAUP collective bargaining agreement guaranteeing academic freedom barred punishing a professor for two classroom sexual analogies that offended campus feminists. (See Silva v. University of New Hampshire (1994)).

Far worse speech has been held to be protected by the First Amendment under the rubric of academic freedom. For example, a federal appeals court ruled that a professor’s derogatory writings about black people were protected by the First Amendment. (See Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992)). It also ruled that a professor had a First Amendment right to teach that Zionism is racism, even though that caused a “furor” on his campus. (See Dube v. State University of New York (1990)).

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