Source: Jonathan Turley
A New Mexico State University professor is the latest professor to pledge to challenge COVID mandates after a strident anti-vaccine lecture that contained comparisons to the Nazis and concentration camps. Business law Professor David Clements had just received the teaching excellence award but could not attend the ceremony over his refusal to wear a mask. The video shows students leaving the lecture, which I felt was inappropriate and over-the-top for making this point. Professor Clements has every right to challenge the mandate but I was astonished by the length and intensity of this lecture that became a diatribe before the students who came for a business law class. Clements was later put on paid administrative leave.Professor Clements insisted that students could or could not wear masks based on their own judgments. However, he would not do so. He also has refused to take the vaccine and went through what he considered the countervailing data on value of vaccines. At George Washington University, my students must wear masks but the faculty can teach without masks if they have six feet of separation. The same rule applies at NMSU, which requires “face coverings at all indoor NMSU system locations and offices around the state when it is not possible to maintain six feet between individuals. Those who are unvaccinated must wear a mask at all times when indoors.”Thus, as an unvaccinated person, Clements must wear a mask at all times.Such rules have been and are likely to be upheld by the courts. They have the support of the CDC and many health experts. Some like Clements disagree but that is insufficient basis for courts in establishing a reasonable basis for mandates. Notably, unlike other professors who object due to their having natural immunities from prior cases of the virus, Clements is rejecting the vaccine due to what he views as objective countervailing data. He is also not claiming a religious exemption.
As many on this blog know, I have an expansive view free speech and academic freedom, including (as in a recent column) some statements in classes that some students would consider insulting or offensive. I have the view of faculty discussing mandates. However, universities have a right to impose what they consider to be reasonable and necessary health measures. A professor should be protected in challenging the basis for the rule while nevertheless complying with the rule. This is his class but it is the university’s classroom.
I also think that this lecture was excessive in its rhetoric and its length. I think a more appropriate approach would have been to state his position more concisely while referring to written statements posted on a blog or some other source if students want to understand better why he opposes the mandate.
However, this type of categorical refusal to comply with the school rule is unlikely to be supported in court. Even natural antibody claims are facing difficult receptions in the court.
Professor Clements clearly cares deeply about teaching and his students. I disagree with him on the vaccine topic. I was eager to take the vaccine and I am tested every two weeks at GWU. However, this is an important debate to have on campuses but there are few opportunities for such exchanges. Indeed, it is outrageous that this video may be banned by social media, which will not allow their users to hear such opposing views. I prefer such points to be made in a forum rather than a class where students signed up to learn a specific subject.
It is also important to recognize that the university also cares for students and has come to an opposing conclusion on the public health requirements for a safe school. Courts uniformly require compliance with such rules. I would however prefer for schools to allow faculty like Clements to teach virtually.
The controversy does raise an interesting issue. If Clements had a religious claim, he would presumably be given an exemption in most businesses. However, if you have philosophical or scientific objection, it is not considered a basis for an exemption. (I could not find whether the university allows exemptions for virtual classes.). Clements clearly has deep-seated objections to the vaccine, but they are science rather than religious based.
In the end, the lecture is unlikely to help his case with the court. A judge is likely to view the class as supporting the university in raising the logistical problems of having multiple faculty take the same stance in classes with students walking out and others objecting to the choice of not taking the course or being taught by an unvaccinated, unmasked professor.
