THIS FRIDAY IS ZOOMING WITH THE DAWG DAY!! BE SURE TO JOIN ME WITH MY GUEST, MORGAN BEAM! MORGAN AND I WILL BE TALKING ABOUT THE LEGAL INS AND OUTS OF INVESTIGATING CLAIMS OF IMPROPER RESTRAINT AND EXCESSIVE FORCE. SEE YOU FRIDAY AT 10!
I’ve heard this term “microaggression” tossed around, so I did extensive research to learn what it means. Ten seconds on Google brought me this definition: “a statement, action, or incident regarded as an instance of indirect, subtle, or unintentional discrimination against members of a marginalized group….”
But I learned more when I read the case of Hiers v. Board of Regents of the University of North Texas System. The lawsuit was sparked by a stack of flyers some anonymous person left in the UNT math faculty lounge. The flyers encouraged faculty members to avoid verbal microaggressions, and then it offered some examples:
I believe the most qualified person should get the job.
America is the land of opportunity.
The flyers characterize these common statements as “microaggressions” because they “promote the myth of meritocracy.”
So picture Nathaniel Hiers, adjunct math instructor, walking into the faculty lounge and finding these flyers. He read the flyer, and then wrote a message on the blackboard: “Please don’t leave garbage lying around.” He also drew an arrow on the chalkboard pointing at the flyers. Like the person who left the flyers in the lounge, Mr. Hiers acted anonymously.
UNT fired him for this.
Of course they first had to figure out that he was the one who left this message. That happened quickly. The chair of the math department promptly sent an email, including a picture of the chalkboard message, to the entire math department:
“Would the person who did this please stop being a coward and see me in the chair’s office immediately.”
Let’s pause for a moment of reflection right here. Insulting someone in an email that goes to that person and all of that person’s colleagues without having heard that person’s side of the story usually does not turn out well. Better to pause when agitated and think about another course of action.
Back to our story: Mr. Hiers responded:
“I’ll be by in a few minutes. I don’t see anything ‘cowardly’ about commenting on silly political flyers left lying in the lounge. If it’s fine for someone to leave stacks of them around the lounge, criticizing them should be fine too.”
In the meeting with the math department chair, Mr. Hiers alleged that he was accused of being “stupid” and “cowardly” and pressured to resign. Mr. Hiers did not resign, and did not apologize for his views. Shortly thereafter, the math department chair informed Mr. Hiers that his services were no longer needed at UNT. Just to be sure the matter was nicely teed up for federal court review, the chair laid out the reasons for the decision in black and white:
“My decision not to continue your employment in the spring semester was based on your actions in the grad lounge on 11-26 and your subsequent response.”
Mr. Hiers sued UNT and 15 individuals. Considering various Motions to Dismiss, the court made the following rulings:
- Mr. Hiers chalkboard message was constitutionally protected free speech. The issue of politically correct language is a matter of public concern. It’s very clear that this is the reason he was fired. Thus his claim of retaliation was allowed to proceed.
- He also had alleged a plausible claim of viewpoint discrimination, and so that claim will go forward as well.
- Even though he was an at-will employee with no contract for future employment, the university faces potential liability for attaching unconstitutional conditions to his continued employment.
- Mr. Hiers has a plausible claim of unconstitutional “compelled speech” insofar as he alleges that he was pressured to apologize for his views.
- With regard to the claim of retaliation, the individual defendants—all 15 of them—were not entitled to qualified immunity.
- Even though only two of the 15 were personally involved in Mr. Hiers’s termination, the court refused to let the other 13 off the hook. Mr. Hiers had alleged that each of the 13 “knew about and consulted on [his] firing before that decision was made.” That was enough to keep those claims alive.
This case has a long way to go. Mr. Hiers has survived the Motions to Dismiss with most of his claims intact, but he still bears the burden of proving the truth of his allegations. But there are lessons we can all learn from this early ruling.
I’m guessing that if the math chair had a second chance to respond to the chalkboard message he would not have used the word “coward.” That was more than a “microaggression.” It was a direct insult to the character of the person who left the message on the chalkboard. It’s not surprising that things escalated from there. This entire incident could have been a teachable moment for the entire math department about the use of language and how personal experience colors our reactions. As it turned out, it is a teachable moment…but not exactly the one that UNT would want.
It's Hiers v. Board of Regents of the University of North Texas System, decided on March 11, 2022 by the federal district court for the Eastern District of Texas. It’s located at 2022 WL 748502.
DAWG BONE: PAUSE BEFORE HITTING “SEND” ESPECIALLY WHEN IT’S GOING TO A LARGE GROUP.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: Toolbox Tuesday!!