19 Fulton Street, Suite 407

New York, NY 10038

tel: (212) 807-6222
fax: (212) 807-6245
ncac@ncac.org
www.ncac.org

Joan E. Bertin
Executive Director

NCAC PARTICIPATING
ORGANIZATIONS
Actors Equity Association
American Association of
School Administrators
American Association of
University Professors
American Association of
University Women
American Booksellers
for Free Expression
American Civil Liberties Union

BY ELECTRONIC AND U.S. MAIL

American Ethical Union

American Federation of Teachers
American Jewish Committee
American Library Association

August 3, 2015

American Literary Translators

Association

Dr. F. King Alexander

President and Chancellor
Louisiana State University
3810 West Lakeshore Drive
Baton Rouge, LA 70808

American Orthopsychiatric Association

American Society of Journalists
& Authors
Americans United for Separation of
Church & State
Association of American Publishers
Authors Guild
Catholics for Choice
Childrens Literature Association

Dear Dr. Alexander:

College Art Association

Comic Book Legal Defense Fund

As organizations focused on the constitutional obligations of public educational

institutions, we were dismayed to learn of the recent decision to terminate Teresa
Buchanan, a tenured professor with nearly 20 years of service at the university.
We write to address the First Amendment and due process issues implicated by
the universitys actions.

The Creative Coalition

Directors Guild of America
Dramatists Guild of America
First Amendment Lawyers Association
International Reading Association
Lambda Legal
Modern Language Association
National Center for Science Education

The National Coalition Against Censorship, founded in 1974, is an alliance of 52

national nonprofit organizations, including religious, artistic, professional,
educational, labor and civil liberties groups, committed to preserving freedom of
expression as a vital element of democratic society and an essential human
right. The Foundation for Individual Rights in Education is a nonpartisan,
nonprofit organization dedicated to defending student and faculty rights on our
nations college and university campuses. Protection of academic freedom is
part of our core missions: educating the young for citizenship is reason for
scrupulous protection of Constitutional freedoms of the individual, if we are not to
strangle the free mind at its source and teach youth to discount important
principles of our government as mere platitudes. West Virginia Board of
Education v. Barnette, 319 U.S. 624, 637 (1943).

National Communication Association

National Council for the Social Studies
National Council of Churches
National Council of Jewish Women
National Council of Teachers of English
National Education Association
National Youth Rights Association
The Newspaper Guild/CWA
PEN American Center
People for the American Way
Planned Parenthood Federation
of America
Project Censored
SAG-AFTRA
Sexuality Information & Education
Council of the U.S.

We are aware of the concerns about academic freedom raised in a letter dated
June 30, 2015, from the American Association of University Professors, and we
concur with those views. Like the AAUP, we are particularly disturbed by the
discrepancy between the charges brought against Professor Buchanan which
were addressed in a hearing conducted by the faculty review committee, which
you appointed and the grounds for termination specified in your letter of April 2,
2015.

Society of Childrens Book Writers

& Illustrators
Student Press Law Center
Union for Reform Judaism
Union of Democratic Intellectuals
Unitarian Universalist Association
United Church of Christ
Office of Communication
United Methodist Church
United Methodist Communications

Womens American ORT

Woodhull Sexual Freedom Alliance
Writers Guild of America, East
Writers Guild of America, West

The review committee was charged with determining whether there was clear and convincing
evidence to support the charge that Professor Buchanan violated policies dealing with sexual
harassment, PS-73 and PS-95, and created a hostile learning environment through her use of
profanity, poorly worded jokes, and sometimes sexually explicit jokes in her teaching
methodologies. The committee also considered a charge that she violated the Americans with
Disabilities Act.
In an opinion dated March 20, 2015, the faculty committee determined that, while she had
violated school policies:
There was no evidence that this behavior was systematically directed at any particular
individual. There was evidence that some individuals observing the behaviors were
disturbed by the behaviors. There was no evidence of a Quid Pro Quo violation. The
charges of ADA violations were not substantiated by testimony.
Further, The committee unanimously finds that removal with cause should not be considered in
this case.
Notwithstanding these findings, your letter dated April 2, 2015, relates your decision to
recommend her dismissal for cause, based in part on the evidence presented at the hearing
and the report from the Committee of the Faculty, and in part on an investigation by Human
Resource Management. Your letter provided no explanation for the inconsistencies between
your decision and the findings and recommendations of the faculty committee, nor did it explain
the basis on which an investigation by Human Resource Management concluded that
[Buchanan] violated the Americans Disabilities Act [sic], while the faculty committee expressly
found otherwise. 1
More recently, the university issued a statement claiming that the termination was based not just
on the charges addressed in the hearing held by the faculty committee, but also on an alleged
history of inappropriate behavior that included verbal abuse, intimidation and harassment of our
students.2 Reliance on allegations of wrongdoing that were not presented to Buchanan in a
timely fashion and that the faculty review committee did not review or consider violates not only
constitutional due process principles but also your own internal procedures.
Indeed, based on the information we have received, this is but one of numerous failures to
comply with both internal procedures and constitutional due process. Taken together, the
pattern displays at best indifference to basic constitutional rights and principles of fairness, and
at worst the appearance of a concerted campaign to terminate Professor Buchanan, regardless
of whether such action is justified by the facts.
We turn now to the equally serious question whether the allegations against Professor
Buchanan, even if proved, constitute a violation of Title IX, or whether they target speech
protect by the First Amendment. While we fully support efforts to eliminate sexual harassment
and other forms of sex discrimination, pursuit of that goal does not justify trampling other

The faculty committee findings also specifically note the closed nature of the HRM investigation and the fact
that Buchanan did not have an opportunity to resolve charges once specific charges became known.
2
http://www.lsureveille.com/daily/university-defends-professor-s-firing/article_bd3fd328-2082-11e5-8eb723cadc01c30a.html.

fundamental rights. Moreover, in our view the cynical misapplication of Title IX that occurred in
this case undermines rather than promotes the cause of gender equity.
There is a consistent body of Supreme Court case law defining sexual harassment and hostile
environment in education and employment. The first major decision in an employment
discrimination case, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), established that for
sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the
conditions of the [the victims] employment and create an abusive working environment. Id. at
67.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), an employment discrimination case based
on claims of verbal harassment, reaffirmed the Courts approach in Meritor, noting that offensive
language alone is ordinarily insufficient to make out a hostile environment claim. Rather,
whether an environment is hostile or abusive can be determined only by looking at the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employees work performance. Id. at 23. See also Clark County School District v. Breeden,
532 U.S. 268, 271 (2001) (simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to harassment); Pennsylvania State Police v. Suders, 542
U.S. 129, 146 (2004) (reiterating Meritor threshold for actionable sexual harassment claims).
Rulings in cases in the educational context have adopted a similar analysis. In Davis v. Monroe
County Board of Education, 526 U.S. 629 (1999), a case concerning student-on-student
harassment in an educational environment, the Court held that harassment must be so severe,
pervasive, and objectively offensive, that it effectively bars the victims access to an educational
opportunity or benefit. Id. at 633. The Court further noted that harassment depends on a
constellation of surrounding circumstances, expectations, and relationships. Id. at 651. The
cautious approach to regulating speech even speech that allegedly promotes discrimination
reflects an effort by the Court to respect rights under the First Amendment as well as those
granted by civil rights laws.
It is clear from Justice Kennedys dissenting opinion in Davis that First Amendment concerns
had a prominent place in the Courts deliberations:
A universitys power to discipline its students for speech that may constitute sexual
harassment is also circumscribed by the First Amendment. A number of federal courts
have already confronted difficult problems raised by university speech codes designed to
deal with peer sexual and racial harassment. See, e. g., Dambrot v. Central Mich. Univ.,
55 F. 3d 1177 (CA6 1995) (striking down university discriminatory harassment policy
because it was overbroad, vague, and not a valid prohibition on fighting words); UWM
Post, Inc. v. Board of Regents of Univ. of Wis. System, 774 F. Supp. 1163 (ED Wis.
1991) (striking down university speech code that prohibited, inter alia, discriminatory
comments directed at an individual that intentionally . . . demean the sex . . . of the
individual and [c]reate an intimidating, hostile or demeaning environment for
education, university related work, or other university-authorized activity); Doe v.
University of Mich., 721 F. Supp. 852 (ED Mich. 1989) (similar); Iota XI Chapter of Sigma
Chi Fraternity v. George Mason Univ., 993 F. 2d 386 (CA4 1993) (overturning on First
Amendment grounds universitys sanctions on a fraternity for conducting an ugly
woman contest with racist and sexist overtones).

Id. at 667 (Kennedy, J., dissenting). Indeed, the four dissenting justices considered even the
majoritys narrow definition of cognizable harassment (so severe, pervasive, and objectively
offensive, that it effectively bars the victims access to an educational opportunity or benefit)
inadequate to safeguard speech protected under the First Amendment. It is highly unlikely that
the Court would countenance expanding those boundaries further, and certainly there is no
basis to conclude that a lesser standard would pass legal muster.
Based on the findings of the review committee, Buchanans speech consisted of mere offensive
utterance[s], offhand comments, and isolated instances. As such, it was fully protected under
the First Amendment. Moreover, there is absolutely no evidence that the alleged harassment
was so severe, pervasive, and objectively offensive, that it effectively [barred] the victims
access to an educational opportunity or benefit. Instead, the committee found only that some
individuals were disturbed. Accordingly, LSUs termination of Buchanan raises serious
questions under the First Amendment.
The fact that some observers were disturbed by Buchanans speech does not deprive it of
constitutional protection. The First Amendment protects even speech that is deeply offensive
and substantially more noxious than anything alleged here. In R.A.V. v. City of St. Paul,
Minnesota, 505 U.S. 377, 392 (1992), the Court struck down a law targeting bias-motivated
crimes involving words that contain messages of bias motivated hatred . While
acknowledging that [i]t is the responsibility, even the obligation, of diverse communities to
confront such notions in whatever form they appear, the Court held that the manner of that
confrontation cannot consist of selective limitations upon speech. The point of the First
Amendment is that majority preferences must be expressed in some fashion other than
silencing speech on the basis of its content. Id. (references omitted).
These and other decisions indicate that anti-discrimination law can and must be carefully
interpreted and implemented to avoid conflicts with First Amendment rights. This is In contrast
with legal decisions addressing actions as opposed to words: There is of course no question
that non-expressive, physically harassing conduct is entirely outside the ambit of the free
speech clause. When laws against harassment attempt to regulate oral or written expression
on such topics, however detestable the views expressed may be, we cannot turn a blind eye to
the First Amendment implications. Where pure expression is involved, anti-discrimination law
steers into the territory of the First Amendment. Saxe v. State College Area School District,
240 F.3d 200, 206 (3d Cir. 2001) (citation omitted).
In terminating Teresa Buchanan based on a record consisting almost entirely of offhand
remarks to adult students, LSU steers into the territory of the First Amendment. Overreaching
of this sort does not serve the interests of a major state university or its students or the cause of
gender equity; to the contrary, it undermines the intellectual integrity and academic standing of
the university, and it makes a mockery of legitimate effort to identify and address actionable
sexual harassment.
The universitys standing depends on principled adherence to certain fundamental principles, of
which due process and free expression form the core:
Our Nation is deeply committed to safeguarding academic freedom, which is of
transcendent value to all of us, and not merely to the teachers concerned. That freedom
is therefore a special concern of the First Amendment, which does not tolerate laws that
cast a pall of orthodoxy over the classroom. The essentiality of freedom in the
community of American universities is almost self-evident. No one should underestimate
4

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. Scholarship cannot flourish in an atmosphere
of suspicion and distrust. 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.
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (quoting Sweezy v. New Hampshire,
354 U.S. 234, 250 (1957) (internal quotation omitted).
Much more is at stake than a single professor whose choice of language may have been at
most imprudent and disturbing to a few people. The universitys actions affect the entire
institution by creating an atmosphere of suspicion and distrust in which genuine scholarship
and learning cannot flourish. We strongly urge you to reconsider your decision and reinstate
Teresa Buchanan.

Sincerely,

Joan Bertin, Esq.

Executive Director
National Coalition Against Censorship (NCAC)

Peter Bonilla
Director, Individual Rights Defense Program
Foundation for Individual Rights in Education (FIRE)