Source: Jonathan Turley
History professors Matthew Garrett and Erin Miller are suing the Kern Community College District over free speech. The District includes colleges like Bakersfield College, Porterville College, and Cerro Coso Community College. In their lawsuit, the professors alleged the denial of free speech and academic freedom after they publicly denounced social justice spending. One of the officials being sued is Christopher W. Hine, the General Counsel of Kern Community College District, who is accused of writing the Administrative Determinations against the professors and, according to the complaint, warning them not to engage in further such speech.
Garrett argued that grant funds were being used by certain faculty members to push a partisan “social justice” agenda at the college and urged for an investigation into the grant expenditures. Bond and Rosales are recipients of some of those grants as part of the college’s Social Justice Institute. Bond and Rosales then filed human resource complaints with the district against Garrett and Miller.
The school has reportedly refused to share the complaint against Garrett and Miller.
What is known is that Miller filed the public records request in October 2019. On October 11 and 19, 2019, Professors Bond and Rosales file HR complaints against Dr. Garrett and Professor Miller arising out of the September 12, 2019 lecture. According to the complaint, Bakersfield College Vice President Billie Jo Rice then asked Dr. Garrett to stop requesting public records to the grants and to remove the publicly posted video of the September 12, 2019 lecture. That is deeply disturbing, if true. These professors have every right to speak on these subjects and to seek such public information. Even requesting that a subordinate remove such material and abandon such requests is highly inappropriate and chilling.
That brings us to the role of general counsel, Christopher W. Hine. On October 8, 2020, Hine issued a KCCD Administrative Determination containing the following statements and findings (again according to the Complaint):
(a) Professor Miller, in her introduction to Dr. Garrett’s speech, made a number of statements implying that both Dr. Oliver Rosales and Professor Andrew Bond “were improperly misusing grant funds and BC resources to finance various ‘social justice’ platforms.”
(b) Dr. Garrett, during his speech, repeated the above allegations “in greater detail” (i.e., that Rosales and Bond were improperly misusing grant funds).
(c) Dr. Garrett’s and Professor Miller’s comments constituted allegations of “financial impropriety” and of misappropriation of grant funds by Rosales and Bond.
(d) Dr. Garrett and Professor Miller’s purported accusations that Rosales and Bond had engaged in “financial improprieties” constituted unprofessional conduct.
(e) Dr. Garrett and Professor Miller made these accusations against Rosales and Bond “without giving them a reasonable chance to explain the grants in question or defend themselves.”
(f) Dr. Garrett “made the situation worse by repeating the allegations on a radio station after Dr. Rosales and Professor Bond properly complained.”
The speech itself is the exercise of free speech and there should be a default in favor of such values before engaging in any formal act of investigation or condemnation by a university. Likewise, the complaint asserts that both Rosales and Bond were offered to participate in a debate. Thus, finding (e) is a bit difficult to square in saying that they were denied any opportunity to respond. What does such an opportunity mean specifically? Hine does not say.
I can see the concern over any accusation of “financial improprieties.” I do believe that, as academics, we need to take care to maintain civility and fairness in such comments, particularly when the underlying facts are unclear. I have no reason to believe that Rosales or Bond engaged in any financial impropriety. I agree that the university should discourage any allegations of impropriety in public between colleagues without confirmed facts. It is unfair to the accused colleagues and inimical to the college community as a whole. However, Garrett and Miller insist that they were calling for an investigation into possible “improprieties,” not declaring guilt. The thrust of the remarks were objections to the attack on free speech and the funding of social justice programs. Hines’ findings are conspicuously short on specifics as to what was objectionable in the public comments.
These findings were used by Hine to declare that Garrett and Miller “engaged in unprofessional conduct, as defined in Section A.3 of Article Four of the CCA collective bargaining agreement, in their statements and allegations regarding misuse and misappropriation of grant funds by Dr. Rosales and Professor Bond.” The professors were warned that they are now on a type of hair-trigger for further investigation.
Hine further referenced California Education Code § 87667, which provides that “A contract or regular employee may be dismissed or penalized for one or more of the grounds set forth in Section 87732.” Finally, he said that the report will be referred to the President of Bakersfield College “to determine what disciplinary actions and remedial actions are necessary based upon the findings.”
The question is whether the specific condemnations will be treated by a court as sufficiently concrete to justify judicial review and intervention. The university can claim that it is allowed to reach a determination on unprofessional conduct and note that the professors have not been fired or fined or suspended. They can also note that requests that the professors withdraw requests for information or request to refrain from further public comments are not disciplinary actions. Deans and administrative officials (and colleagues) often suggest restraint or de-escalation in such disputes.
In my view, the actions of the District are chilling and inimical to free speech. I am particularly concerned about the request that these professors withdraw their public information requests. If true, it is a particularly odd request since they were reprimanded for speaking without sufficient support. Moreover, the Hine report relies on the same general grounds without the level of specificity that should be part of any such action. Finally, I am concerned about the lack of due process. The speed and lack of transparency of the process leading to the Hine’s finding is troubling.
We will be following the case.
