Censored professors notch wins in legal fights over DEI dogma, depictions of Prophet Muhammad

Public and private universities that took action against professors for their external and classroom expression were hit with legal setbacks this week – including one that never employed the scholar who sued.

Portland State University political scientist Bruce Gilley secured an injunction against University of Oregon Division of Equity and Inclusion officials that stops them from blocking his interaction with UO Equity's X account, or "hiding, muting, or deleting" several kinds of his posts to its account, as his First Amendment challenge enters its third year.

"It will be interesting to see how much longer UO wants to use tax payer's [sic] money to fight for the right to discriminate based on viewpoint," Gilley's attorney Del Kolde at the Institute for Free Speech wrote on LinkedIn. "They have already spent hundreds of thousands of dollars."

UO answered a Just the News query but did not provide a statement on its response to the injunction.

Gilley irritated then-Communications Manager Tova Stabin in June 2022 by posting "All men are created equal" in response to Stabin's request on Twitter, now X, for ways to "interrupt racism." She blocked him, which Gilley said also removed his tweet from the UO Equity timeline.

Even "offensive speech" like citing the U.S. Declaration of Independence will now be allowed by DEI speech police thanks to the injunction I have won. My, my, such progress!https://t.co/obbJSG9tro

— Bruce Gilley (@BruceDGilley) July 24, 2024

When Gilley filed a public records request for the policy under which he was blocked and who else UO Equity had blocked, Stabin told a colleague answering the request that Gilley was "not just being obnoxious, but bringing obnoxious people to the site."

She retired about six weeks after blocking Gilley. Earlier this year UO hired her to "do a couple of fighting antisemitism workshops as a consultant," Stabin wrote on LinkedIn.

Answering Gilley's request for a symbolic $17.91 in nominal damages, UO delivered "$20 cash to the hallway outside of the IFS’s DC office" but refused to admit IFS sent it back, IFS recounted after oral argument on mootness before the 9th U.S. Circuit Court of Appeals 10 months ago.

Minnesota's Hamline University reached a settlement with ex-professor Erica Lopez Prater 10 months after a federal judge allowed her religious discrimination claims to continue against the private institution for not renewing Prater's contract after she offended some Muslim students.

The art historian had repeatedly warned students she was going to show centuries-old art commissioned by Muslim rulers depicting the Prophet Muhammad, which some Muslims consider an affront. She let them opt out of seeing it, but Muslim Students Association President Aram Wedatalla complained regardless.

Hamline officials said her lesson was "undeniably … Islamophobic" and did not show "respect for the observant Muslim students in that classroom," but backtracked after the national Council on American-Islamic Relations sided with Prater, which also undermined its Minnesota affiliate's press conference with a tearful Wedatalla. 

President Fayneese Miller said she was retiring two months after a lopsided no-confidence vote by faculty for her handling of the matter, which also prompted an accreditation complaint and American Association of University Professors probe.

While the docket shows the terms of the settlement reached Monday are confidential, the parties told the U.S. District Court in Minneapolis on April 15 they were in "the early stages of discovery" after hitting "an impasse" in private mediation in February.

They had a status conference April 18 on the "optimum timing for a settlement conference," which lasted 12 hours and 7 minutes on July 22, the docket shows.

Prater's lawyers didn't answer Just the News queries for any details on the settlement, such as whether it includes financial consideration, while Hamline referred queries to its lawyer, who didn't respond. Each side told the Star Tribune they were satisfied with the terms.

The next wave of faculty-speech litigation may come from professors sanctioned for their cavalier responses to the attempted assassination of Republican presidential nominee Donald Trump.

The Foundation for Individual Rights and Expression, which filed the Hamline accreditation complaint, told Bellarmine University on Thursday the private Catholic institution had violated its own academic freedom and social media policies by firing professor John James after he responded to Trump's near-miss on Instagram: "If you're going to shoot, man, don't miss." 

The university previously confirmed it put an unnamed employee on "immediate unpaid leave" for an "offensive and unacceptable social media post," who was "no longer" employed a day later.

"We properly followed our institutional policies in this instance, considering that this was an instructor on an initial contract appointment who did not hold regular faculty status," Assistant Vice President of University Communication Jason Cissell told Just the News. "We stand by our decision."

He reiterated Bellarmine followed its institutional policies when asked whether the university does not consider its academic freedom and social media policies to have legal force, such that James could assert them in court.

3/ FIRE believes more political speech, not less, is the way to prevent violence and defend democracy. We can’t have this if Americans are too afraid of losing their jobs to speak their mind. pic.twitter.com/n8PurHkqEF

— FIRE (@TheFIREorg) July 25, 2024

The 9th U.S. Circuit Court of Appeals came to Gilley's rescue this March after U.S. District Judge Marco Hernandez denied his injunction motion as moot because UO Equity stopped blocking Gilley the day after he sued. (It also stopped using its Twitter account altogether.)

The university denied it had a "written" social media policy while Gilley was blocked, then turned over its "guidelines" after he sued, Hernandez wrote. They include the right to remove "hateful or racist comments," any comment that "otherwise uses offensive or inappropriate language," and "comments that are out of context, off topic or not relevant to the topic at hand."

"Given the policy’s lack of formality and relative novelty, how easily the policy can be reversed, and the lack of procedural safeguards to protect from arbitrary action," UO hasn't shown the case is moot, the appeals court said in an unsigned opinion.

"Gilley has standing to seek prospective relief for his as-applied challenge" but Hernandez must decide whether he can seek "pre-enforcement facial relief," giving weight to "past instances of enforcement" – the two months Gilley was blocked, the 9th Circuit said.

He has "readily demonstrate[d] irreparable harm" justifying an injunction, given that Gilley had to sue to force UO to acknowledge it had a social media policy that Stabin violated by blocking him, showing UO can't stop "a rogue employee" from future blocking, the panel said.

Senior Judge William Fletcher dissented, claiming the record shows "clear voluntary cessation, with virtually no likelihood of resumption."

Judge Hernandez followed 9th Circuit directions in his Tuesday order, now finding "the balance of equities and the public interest" favors Gilley. UO's assurances that it's hiring a new communications manager who will undergo First Amendment training and won't be able to unilaterally block users are untested promises at this point, Hernandez said.

He issued the "tailored" injunction Gilley sought – a ban on blocking his interactions with UO Equity's X account and hiding, muting or deleting posts judged "hateful," "racist" or “otherwise offensive," or "out of context," "off topic" or "not relevant."

The judge said these cover Gilley's other requested bans on blocking comments that are "obnoxious," talk about "the oppression of white men," criticize UO Equity or simply disagree with the communication manager's views – all of which Stabin mentioned in communications with colleagues.

Hernandez marveled that Stabin claimed Gilley's "All men are created equal" comment was off-topic. It is "relevant to discussions of racism" – the purpose of Stabin's prompt to Twitter users – and Gilley's comment at least falls into a "gray area in which protected speech may be improperly censored."