FIRE Letter to FAU President Mary Jane Saunders

Foundation for Individual Rights in Education
601 Walnut Street, Suite 510
Philadelphia, Pennsylvania 19106
thefire.org

April 23 , 2013

(PDF)

President Mary Jane Saunders
Florida Atlantic University
Administration Building, Room 339
777 Glades Road
Boca Raton, Florida 33431

Sent via U.S. Mail and Facsimile (561-297-2777)

Dear President Saunders:

The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will
give you a greater sense of our identity and activities.

FIRE is concerned with the threat to freedom of expression presented by Florida Atlantic University’s (FAU’s) sanctions against Professor James Tracy due to the content of his personal blog. FAU’s actions violate Tracy’s right to freedom of expression and threaten the academic freedom of all FAU faculty. FAU must recognize its moral and legal obligations under the First Amendment and immediately reverse its disciplinary actions.

This is our understanding of the facts. Please inform us if you believe we are in error.

In addition to being a tenured associate professor in FAU’s School of Communication & Media Studies, James Tracy maintains a personal blog, Memory Hole. Following the December 2012 shooting deaths at Sandy Hook Elementary School in Newtown, Connecticut, Tracy posted entries at Memory Hole in which he questioned and criticized the media’s portrayal of the shootings. Tracy’s articles garnered substantial media attention and criticism. As reported on January 7 by the Sun Sentinel, FAU Director of Media Relations Lisa Metcalf released a statement from FAU confirming that “James Tracy does not speak for the university. The website on which his post appeared is not affiliated with FAU in any way.”

On January 18, Tracy met with Heather Coltman, Interim Dean of FAU’s College of Arts and Letters, and Associate Provost of Academic and Personnel Programs Diane Alperin. Professor Douglas Broadfield, Grievance/Contract Enforcement Chair of the FAU chapter of the United Faculty of Florida (UFF), was also present. Coltman, who summarized the details of this meeting in a January 28 memorandum, asked Tracy about the disclaimer on the Memory Hole blog (clarifying that the opinions on the blog only represented Tracy’s personal opinions) and when it was posted. She also asked him to provide her with evidence of the disclaimer. Tracy complied with this request, sending Coltman a link to an archived version of his blog, originally called Memory Gap, in a January 18 email. The “About” page on the archived site, dating back at least to July 23, 2012, contains a disclaimer stating that “[t]he views and analyses are solely the author’s and are in no way endorsed or condoned by Florida Atlantic University or the State University System of Florida.”

Memory Hole’s current “About” page states, in bolded type:

All items published herein represent the views of James Tracy and are not representative of or condoned by Florida Atlantic University or the State University System of Florida. James Tracy is not responsible for and does not necessarily agree with ideas or observations presented in comments posted on memoryholeblog.com.

In his January 18 email to Coltman, Tracy informed her that he had added the second sentence of the disclaimer several weeks earlier.

Despite his compliance with FAU’s requests, and FAU’s previous statements to the press that Tracy’s blog was not affiliated in any way with FAU, Coltman sent Tracy a “Notice of Discipline,” dated March 28, related to the content of the blog. Regarding the disclaimer’s placement on the blog, Coltman wrote that “[c]learly, this disclaimer was ineffective as shown by the widespread misperception that your job and FAU are connected to the blog site.” Coltman cited three other entries on Memory Hole, one referencing her and another FAU administrator, and two containing references to FAU that Tracy did not remove. “No disclaimers are present on any of these pages,” the letter stated.

Coltman further charged that Tracy had “ignored” his obligations under section 5.3(d) of the FAU’s Board of Trustees/United Faculty of Florida Collective Bargaining Agreement (CBA), which states in part:

When speaking on any matter of public interest, a faculty member shall make clear when comments represent personal opinions and when they represent official University positions.

Coltman concluded:

You must stop dragging FAU into your personal endeavors. Your actions continue to adversely affect the legitimate interests of the University and constitute misconduct. … If you continue to fail to meet your professional obligations and respond to directives from your supervisor, you will face additional disciplinary action.

FAU’s misguided and intrusive demands regarding the content of Tracy’s blog threaten the free speech and academic freedom rights of Tracy and the entire FAU faculty. As an initial matter, it is settled law that the First Amendment is fully binding on public universities like FAU. See Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities”); Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’”). The Supreme Court has also repeatedly held that speech may not be punished merely because many may find it to be offensive or disrespectful. See Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”); Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) (“[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”)

The First Amendment protects Tracy’s personal blog entries. Recognizing that “a citizen who works for the government is nonetheless still a citizen,” the Supreme Court has held that the First Amendment imposes limitations on the government’s ability, as employer, “to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.” Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). While “the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities,” the government may not exert its authority as employer to punish employees for speech uttered as private citizens, particularly when that speech concerns matters of public concern. Id. at 424 (emphasis added); see also Pickering v. Board of Education, 391 U.S. 563, 571–72 (1968) (holding that because “free and open debate is vital to informed decisionmaking by the electorate,” the dismissal of a public school teacher for criticizing the Board of Education violated the First Amendment, as the speech concerned “a matter of legitimate public concern”). The Court has identified the importance of protecting “the individual and societal interests that are served when employees speak as citizens on matters of public concern.” Garcetti at 420.

Tracy’s personal blog is not authored pursuant to, or as a requirement or function of, his employment by FAU. Nor does it “owe[] its existence to [Tracy’s] professional responsibilities.” Id. at 421. As Coltman’s letter acknowledges, Tracy’s blog is a “personal endeavor.” Because Tracy’s blog plainly concerns matters of public concern and is explicitly unrelated to his official responsibilities as an FAU professor, FAU may not discipline him for its content. This is true even when Tracy’s blog entries concern or criticize FAU. See, e.g., Perry v. Sindermann, 408 U.S. 593, 598 (1972) (“a teacher’s public criticism of his superiors on matters of public concern may be constitutionally protected”); Pickering, 391 U.S. at 574 (“statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors”).

The CBA further ensures Tracy’s right to engage in personal speech, even speech critical of FAU, as a matter of his academic freedom. As Article 5.2 notes, Tracy’s academic freedom rights include the right to “[s]peak freely on, and seek changes in, academic and institutional policies,” and to “[e]xercise constitutional rights without institutional censorship or discipline.” Prohibiting Tracy or any other FAU faculty member from mentioning the university or their university affiliations, and by extension from criticizing perceived injustices at FAU, amounts to a gag order on faculty speech. By publishing a disclaimer on his personal blog, Tracy has complied with FAU policy by the plain language of the CBA. Article 5.3(d) states that on matters of public interest—as the circumstances of the murders in Newtown surely are—faculty “shall make clear when comments represent personal opinions and when they represent official University positions.” Tracy has done exactly this; the statement on his personal blog explains that “[a]ll items published herein represent the views of James Tracy and are not representative of or condoned by Florida Atlantic University or the State University System of Florida.” This clear, all-encompassing disclaimer is entirely sufficient. Requiring that he post such disclaimers repeatedly throughout his blog—especially on any article referencing FAU, as the university seems to desire—is unnecessary. Tracy cannot be held responsible for others’ incorrect and unreasonable attribution of his speech to FAU.

By restricting what Professor Tracy can say on his personal blog and disciplining him for failing to abide by its unconstitutional requirements, FAU has chilled academic freedom. If FAU faculty cannot trust that the university will fully protect their First Amendment rights outside of the classroom, it only follows that they will fear for their academic freedom inside the classroom, as well, and self-censor accordingly. At a university ostensibly committed to free inquiry and scholarly debate, this is a disappointing, dangerous, and impermissible outcome. As the Supreme Court wrote in Sweezy v. New Hampshire, 354 U.S. 234, 250
(1957):

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

FIRE asks that Florida Atlantic University retract its disciplinary letter against James Tracy, disavow any future punishment of Tracy on the basis of his blog’s protected content, and make clear to Tracy and all FAU faculty that they enjoy full First Amendment rights in their extramural expression—including on their personal blogs. We hope FAU will welcome this opportunity to take a strong stand for faculty rights, and we are committed to ensuring a just outcome in this case.

We request a response to this letter by May 14, 2013.

[As of June 4, 2013 FAU has not responded to FIRE’s letter.-JFT]

Sincerely,

Will Creeley
Director of Legal and Public Advocacy

cc:
Heather Coltman, Interim Dean, Dorothy F. Schmidt College of Arts and Letters
Diane Alperin, Associate Provost of Academic Personnel and Programs
Chris Robé, President, United Faculty of Florida, FAU Chapter
Douglas Broadfield, Grievance/Contract Enforcement Chair, United Faculty of Florida, FAU Chapter
Anthony Barbar, Chair, Board of Trustees
Thomas Workman, Chair, Audit & Finance Committee, Board of Trustees
Abdol Moabery, Chair, Strategic Planning Committee, Board of Trustees
Robert Rubin, Chair, Community and Governmental Relations Committee, Board of Trustees
Paul Tanner, Chair, Committee on Academic & Student Affairs, Board of Trustees
Julius Teske, Chair, Personnel and Compensation Committee, Board of Trustee

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20 thoughts on “FIRE Letter to FAU President Mary Jane Saunders”

  1. James, I wish your blog in the interest of truth and trust in media was presented and discussed in classrooms all over the country. I am reminded of Noam Chomsky who is a professor of linguistics at MIT but publishes and speaks on controversial political issues usually critical of the government. Chomsky said, you can determine intent by predictable outcome. He is perhaps the most well known faculty member at MIT. FAU should take a lesson and allow you the same freedom and respect MIT allows Chomsky.

    “…If you believe in freedom of speech, you believe in freedom of speech for views you don’t like. Goebbels was in favor of freedom of speech for views he liked so was Stalin. If you’re in favor of freedom of speech that means you’re in favor of freedom of speech precisely for views you despise. Otherwise you’re not in favor of freedom of speech. It’s two positions you can have on freedom of speech, and you can decide on which position you want.” –Noam Chomsky

  2. This letter is written to “the system” and to people whose lives are spent within the system helping to keep the system running. The system will not respond. It doesn’t have to respond. But should it respond it will be in the negative. (Oh please, System, pretty please, you must be fair to me because I’m quoting all the laws of the System to back up my argument.)
    Now that Professor Tracy has stepped too far outside the bounds of the System which he has previously served, it no longer finds him useful. In fact, he is a nuisance because he has nipped at its heel and continues to pester it with evidence and details and such.
    The best line of the piece is: “No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.” That is such a loaded sentence! First of all, we don’t have a democracy. We have a dictatorship whereby you are free to discuss and do ANYTHING so long as it doesn’t contradict (or offend) those who firmly hold the reins of power. As for the “vital role” played by those who “guide” and “train” youth…well, for starters, just read The Leipzig Connection by Paolo Lionni. Education is a far cry from “training”.
    And if Tracy wants to bother taking this to its ‘natural’ conclusion (all the way to the Supremes, should he feel compelled to waste his time and energy), they will twist and wrench some reason out of those dusty ‘law’ books to make it all very legal in the end.
    Tracy is going to have to choose: serve Truth or serve the System.

    1. Your “belle indifference” to the system is perhaps commendable. However let us imagine you owned a house that someone wanted to take from you, using the power of the law. Would you just let them do it? Let us say your ancestors bled and died for a piece of land, and their children then took it from the British, and then some upstarts wanted to declare that they were now the law there and all the other laws were banished? Would you let them do it to remain “pure” and not to “waste your time and energy”? Or would you attack with every legal weapon available to you in the hopes that your legal rights could still find vindication? Would you scheme and think and brood about sending out the truth in hopes to gain support? Or would you give up, believing that having found the truth you need never share it, that you could hide your light under a bushel basket and be sure it would never go out? The truth needs oxygen the way a candle does. I may be living in the 21st century, but I know there is abundant wisdom available to me on these matters. Man’s nature does not change and we will encounter the wicked. We should not submit to them. If it takes our all, so be it. Others have given far more.

  3. I have been following Professor Tracy’s troubles with FAU with nearly as much appalled interest as his posts. His “Media Disinformation and the Conspiracy Panic Phenomenon” of 5/24/13 contains a quotation from cultural historian Jack Bratich that sums up both the university’s censorious moves against James Tracy and the escalating frequency of authoritarian initiatives against dissenting points of view: “Society preserves its identity through the expulsion of deviance”. Some of us don’t care a wit about societal “identity” and a whole lot about the truth, which usually fails to drop into the hands of those with state-funded sinecures like rain, or mana from heaven.

    We had a similar situation a short time ago here in Oregon. A local resident, whom I happen to know, like, and don’t agree with at all, tried to teach a course on the Muslim faith at the local community college. The college president spiked it. No questions asked. Admittedly, this isn’t like Mr. (Dr?) Tracy’s situation, but you get the idea.

  4. Trying to get someone fired from their job over things that have nothing to do with the job itself or the employer is a relatively common form of retribution for dissent or non-conformity. Its not only a way to discredit the individual, but to punish them severely through their personal finances.

    Worse, those with the power to make the employer consider such immoral and illegal action anyway normally work at it behind the scenes and not in public, so that they’re not soiled by their own excrement. At this point, I’d have to suspect the Bloomberg machine and / or the White House behind all of the FAU discipline, though I could only guess at what ‘leverage’ they are using. Of course, it could also be the FBI or some sub-unit of DHS, since questioning anything is now considered tanatmount to ‘potential terrorist’.

    Perhaps a look at Heather Coltman’s personal and work email files would answer that ‘leverage’ question.

  5. Dr. Tracy, I am curious…what is it like for you to live and teach under the yoke of constant scrutiny and threats to job security?

    The pinchers of conformity have always presented a dilemma for those outside the perimeters of the status quo or outside parameters of accepted behavior (read: compliance). We are a gutsy lot–we iconoclasts–and stubborn. Not to put too fine a point on it, but can we agree it is a recognized anti-hero who generally changes the world for the better?

    At what point in a failed society do we allow so many yes-men/women to dictate terms?

  6. rev. dave,

    Ms Coltman seems to be a secret agent for the Zionist cabal who is hell bent on taking away every one’s freedom based on silly and immature reasoning.

    University resources are wasted on silly and unproductive and often destructive anti-human behaviors of this nature namely going after an innocent person based on no valid reason.

    Why is it so difficult to understand that prof Tracy has done no wrong in telling the truth about Sandy Hook? Has he got to go along with other liars?

    I strongly state here that Ms Coltman and other tribal members need to stop this and other destructive behavior toward the human race.

    There are millions of people across the globe who are aware of the tribe and their dirty tricks who will take note of this harassment against prof Tracy.

    Prof Tracy himself needs to understand this ugly behavior and speak against it.

    If he and other victims keep silent about this abuse this abuse will only continue which itself is an injustice to all of mankind.

  7. I am so inspired by Professor Tracy and find this blog refreshing. Makes me want to get my PhD. I think that others in higher education are being silent, are afraid, and afraid of leading their students into thought provoking and transcending discussions. I bet that many are lurking in the shadows of this website and flash a secret grin to the discussions that are taking place here and elsewhere.

    I believe that we should be able to have free speech, have open dialogues, and always ask why, how, who, when, what and where? Don’t you remember being taught that as a young child in school, right after you said the Pledge to the Allegiance and sang the song by Woodie Guthrie http://www.arlo.net/resources/lyrics/this-land.shtml

    “This land is your land, this land is my land
    From California, to the New York Island
    From the redwood forest, to the gulf stream waters
    This land was made for you and me”

    What has happened America? Wake Up!

    Institutions of higher education should be able to provoke thought and discussion and challenge the mind. It is detrimental to society that if one questions authority and the truth that you are labeled “crazy” (Look at Howard Dean and how media slandered him because they didn’t have any dirt on him) an “outcast” and deviant to society and your university. How shameful.

    Instead, we should sit on the couch and drink beer, and watch the game streamlined via Hulu.

    On another note, if anyone wants to brush up on your skill set (You might need a new job Professor Tracy…;-) just kidding) come to San Francisco and take a two-day workshop at Kryolan the Professional makeup company that will cover the basics in creating cuts, bruising, open wounds and blood effects. I suspect that this could be a growing field and all of us might need new jobs. http://global.kryolan.com/event/fx-101

    Keep up the great work and I hope that those in the offices of HE respond to this letter and realize that the pillars of higher education are at stake here. Sadly, it is probably too late.

  8. This letter to FAU is superb. Despite the official squawking from the FAU administration, what does the administration think? As to Boston, for instance, do they think it matters that there is hard proof of a drill planned from as far back as 2008 and that no major newspaper wrote about it but their courageous Professor James Tracy did? Please, administrators, give us a logically formed answer that lets us know you are knowledgeable of this fact, that Boston was planned, otherwise, kindly leave Professor Tracy alone, or better yet praise him.

    1. Actually, the Boston Globe published an op-ed piece in 2008 on the Boston Marathon as well as the DC Fourth of July as opportunities for disaster with the implication that drills might be planned for both. The writer was a Mr. Bogas (I think) who was at the Kennedy School at Harvard. I’ll try to find the reference.

      1. Arnold Bogis- Boston Marathon as Dry-Run Disaster, April 21, 2008, Boston Globe, op-ed piece. Very eye-opening.

  9. It is very clear with all the recent scandals and innocent citizens being attacked for their views or political affiliations by the IRS, FBI, OHSA, ATF and others, our great country is under attack from within. The non-union, republican supporting, Gibson Guitar Company had 3 factories raided by armed ATF agents in 2011, millions of dollars in ‘illegal’ wood and computer equipment was confiscated. There is very little media coverage on this travesty that almost sent them into bankruptcy. The union guitar makers just received a letter! The senate recently had a hearing with 6 very well spoken citizens who were targeted and abused by the IRS because of their positions that were opposite of the administration. The democrats tried to declare if they didn’t have those views, they wouldn’t be there. Their callousness just demonstrates how deep the corruption is. Yes, it is at times difficult to stand up for what is right, but the only other option is to go down in defeat and leave our children a world without hope. I have stood my ground to giants and won, although they were midget giants in comparison! Yes, the battles and tears were worth it! Here along with Professor Tracy, is another true American hero Catherine Engelbrecht http://www.nationalreview.com/article/348756/true-scandal-jillian-kay-melchior

  10. Personally, I believe that Dr. Tracy is doing just what he should: teaching his students, and others, to research and think for themselves.

    As for FAU, sad to say, I think they don’t respond because they are worried about offending people who believe the official story, and they worry about losing students….that is, money.

    I would send my kid to Dr. Tracy’s class, but not to FAU if that’s all they are interested in.

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