College ordered to bar faculty members from making derogatory statements about men

Volokh, Eugene VOLOKH at
Tue Jul 18 11:56:56 PDT 2000

        I agree that the government acting as employer has broad power over
what its employees say in the course of the very speech for which they were
hired -- and this includes faculty members.

        But this case doesn't involve the government acting as employer.  It
involves the Montana Department of Labor & Industry and the Montana Human
Rights Commission issuing an order pursuant to a state law (Mont. Code. Ann.
49-2-307) that applies to all educational institutions, public and private,
see Mont. Code Ann. 49-2-101(9) ("'Educational institution' means a public
or private institution and includes an academy; college; elementary or
secondary school; extension course; kindergarten; nursery; school system;
university; business, nursing.").

        Under the logic of the court's decision, a teacher at a private
institution would be equally barred from teaching anti-male attitudes in a
nursing class.  This is a classic government-as-sovereign situation.  In
such a context, can this sort of speech restriction really be

Paul Finkelman writes:

> My sense is that professors have a right, outside of class, to promote
> anything they choose.
> Inside of class we are presumably hired to 1) teach a discipline 2) teach
> students.
> It would seem to me that promoting a cause in class that is unrelated to
> the discipline might not be protected speech within the employment
> context; that is we are employed to teach torts and instead we deny the
> holocaust happened, over and over again, not just as an example in an
> exercise, but as part of the daily class.  Or, in the case of Northwestern
> Univ. grad student who was fired.  He had been employed to teach math and
> instead taught that the holocaust did happen (to counter a professor in
> another department who denied it, but on his own time);   So, we might
> argue that the nursing teacher is free to say whatever she wishes about
> men, of class, but unless she is teaching about gender or sex in her class
> the state might limit her; I am not sure how far this would get us.
> I suppose Eugene wants a discussion of hostile environment. Again, I think
> it comes under the special circumstances of being a teacher; if we make it
> impossible for students to learn or study by hostile words and comments,
> then are we violating the contract of employment?
> So to turn to Eugene's comment, below:
> I take it likewise follows that institutions of higher education, and
> faculty members at those institutions, have a right to promote the belief
> -- free of restraint by the government acting as soveregn -- that racial
> segregation is desirable, that one or another race is superior or
> inferior, or that one or another gender is superior or inferior, even if
> such a belief is offensive to some of the students.
> :I cannot see how, in say a course on nursing, or physics, or chemestry,
> it would be appropriate to make these arguments, except perhaps as an
> example, or in a theoretical discusson once in a while.  Now, if you
> taught educational policy, I suppose that would be a different issue.
> I have a questions for Eugene, which is, can the state univ. or the state
> legislature in fact say that teachers can promote "no viewpoint" in their
> classes, but must simply expose students to ideas, set out in the
> curriculum, and not take a position?  In order words, can teh state gov.
> tell its employees what to do while on the job?
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