I Slept Through Con Law: My (likely incorrect) take on Professor Buck Ryan’s Issue.

I keep being tangentially related to scandals and shit this past couple years, and always through former professors.

First it was the case of Pennsylvania Supreme Court Justice J. Michael Eakin, who I learned from and who went out of his way to try and help me find a job immediately out of law school.  He was caught up, unjustly in my opinion, in the whole “Porngate” scandal in Pennsylvania and was eventually forced to resign.  Note:  I have a very nice framed picture of he and I on the evening he swore me into the Pennsylvania Bar, and it’s never coming down.

Now it appears my old journalism professor has gotten in trouble for singing.

Sit back, this is going to be a long post, mostly me gibbering about Constitutional shit, and is subject to being ripped apart by actual intellectual and constitutional practitioners who didn’t spend large portions of Con Law doodling in the margins of their texts.

Disclosures:  I sort of know this guy in a roundabout way.

I don’t really remember a hell of a lot from my course with Professor Ryan.  I remember it was in the classroom building, and I remember there was a hot dog vendor that parked right out front.  I used to grab a couple hot dogs, slather on the onions, and go into his course.  I’d sit on the far right hand side of the class, and he’d pace back and forth in front of the class lecturing on the very basic parts of journalism.  One day I remember he pointed out my hot dog habit, mentioning that he would grab dogs at…I think it was Wrigley Field…when he worked for the Tribune.  That same day, as I sat slack-jawed at having been acknowledged, he pulled out a record player and put on Jim Croce’s Working at the Car Wash Blues

Listen to it, you cretins.

The purpose of playing the song playing, as he said, was to show how you can use words to communicate a story.  The narrator of the song had perfectly conveyed, in less than three minutes, a number of facts:  He was an ex-con, he worked at a car wash, he believed himself to be better than those around him, he was deep in debt, and he was unhappy.  It was supposed to be an example of how a good journalist should craft their words to convey the maximum amount of information, but in doing so maintain the facts without slant.  The narrator didn’t do a good job of doing that, as the facts were conveyed through the lens of his view, something that we would have to remove.

Or something like that.  I’m not sure.  It was closer to 20 years ago than 10 now.  The point of this little story is threefold:  I love hot dogs, Professor Ryan knew how to grab the attention of his students, and I really enjoy Jim Croce as a result of taking his class.  Considering that massive world events ended up derailing my college career, and when I returned it was as a history major then a law student, that ends my tangential relationship to Professor Buck Ryan, who, on Sunday, went on the offensive against his recent academic reprimand from the University of Kentucky.  As you would expect from an experienced journalist, his opinion piece is quite well-written, but like the hapless shammy-cloth attendant of Jim Croce fame, it’s biased.

What Happened?

So here are the facts:  Professor Ryan was overseas teaching a class in a University of Kentucky sponsored program.  As part of his closing remarks, he used music as an example, which he is wont to do.  He sang, as part of this, lines from California Girls by the Beach Boys.  He changed some place names to Chinese place names.  Subsequently, a complaint was filed by someone against him, and he was reprimanded by losing grants and awards.  There was no trial.

Ryan says he was reprimanded under Administrative regulation 6:1.  This policy states:

The University, in its efforts to foster an environment of respect for the dignity and worth of all members of the University community, is committed to maintaining an environment free of prohibited discrimination, which includes sexual and other forms of harassment. Discrimination and harassment are prohibited between members of the University community and shall not be tolerated.

If you visit that link, it becomes clear this is a boilerplate sexual harassment/harassment policy, known to and hated by office workers worldwide.  It’s the type of policy nobody thinks about until Tim from Accounting makes a joke about a blonde recording an album to her boyfriend that everyone in attendance laughs at because it’s funny, except then Amy in Accounts Receivables calls HR and now you have to spend your entire Saturday in a mandatory team-building activity that teaches the joke, which you laughed at, was certainly not amusing in the slightest since it could be considered harassment and goddammit Amy we all know this is because you grabbed Tim’s ass at the holiday party last year and his wife chewed you out for it.

Anyhow, where was I?  Oh, yeah, sexual harassment policies.  Look, they’re actually good things.  Dirty and offensive jokes have no place in the workplace.  They aren’t appropriate, and some people feel threatened or denigrated by them, and that’s fine.  We shouldn’t let that happen.  Plus we don’t want to create an environment where female or male or whatever employees feel pressured to “be okay” with whatever shitty stuff is going on.  This is doubly true for educational institutions, where young minds are being shaped and people like Professor Ryan could easily abuse their positions.

However, Ryan’s position is he got in trouble just for speaking the words to a Beach Boys song.  Look at this unmitigated smut!   I mean, never mind the fact the song is fifty-one years old and played constantly on Oldies stations from coast-to-coast, it’s obviously unfit to be uttered by the lips of an academic without offending someone.

Now, let’s be clear, I have Professor Ryan’s version of events and not much else.  And Professor Ryan has been told that he may pursue “external measures.”  While he mocks this idea as being a fourth grade bully’s retort, I think he should pause and consider it if his version is accurate…and that’s where we’ll come into the meat of today’s post:  Can Buck Ryan Sue?

Is There A Right to a Hearing?

Okay, so Ryan spends a lot of time in his article talking about Due Process, that is, the idea that a person can’t be deprived of their constitutionally protected rights to life, liberty, and/or property without due process of law.  This will, at the minimum, require some sort of notice and hearing with an opportunity to respond.  No, it doesn’t have to be a full trial, but there are basic requirements such as the opportunity to present evidence and argument in support of the position.

Notably, due process will most often come into play when the person or party seeking to deprive you of the right to life, liberty, and/or property is the government.  Here, the party that has made the determination against Ryan, deciding to strip him of travel funds and of an “award worth thousands of dollars,” is the University of Kentucky, a publicly-funded university in the Commonwealth of Kentucky.  This is going to qualify as the government-actor requirement.

Also, Ryan’s account states that he did not have any opportunity to be heard in a hearing prior to the actions being taken against him.  Now, I’m not intimately familiar with the University of Kentucky’s administrative policies, or the process that was followed here, so I’m not intimately familiar with whether the process that was undertaken qualifies as the right to a hearing.  However, in general we can say that the right to a hearing in due process cases is not, as stated before, limited to some full tribunal with lawyers and the like.  As stated in Hagar v. Reclamation District, 111 U.S. 706, 708-711 (1884), SCOTUS set forth the rule that what constitutes sufficient due process is dependent upon the nature of the interest at stake.  As stated in FCC v. WJR, 337 U.S. 265 (1949), this does not necessarily include a right to a physical hearing with oral argument, especially in administrative matters.

So the answer to this question will really be found in the procedures governing these sorts of complaints, as the “Dear Colleague Letter” sent out back in 2011 puts the onus of developing these procedures firmly on the institution.  I’m not digging through the University of Kentucky administrative regulations, but let’s just assume for the sake of argument that there is no process present for this type of complaint, or the process doesn’t meet the due process requirements for the claims that have been made.  Let’s assume that, in cases where the allegations are essentially “sexual harassment,” a court reviewing the procedures in place from the University of Kentucky would determine that they are insufficient for the nature of the claims that have been made.  Ryan would win, right?

No, because he’s still going to need to show that the injuries he’s suffered are “life, liberty, or property” interests in order to be entitled to due process at all.

Are There Life Interests at Play?

Absolutely not.  Despite what some students who have failed Professor Ryan’s course may wish, there is no death penalty at play here, and that’s essentially what a “life” interest is.

Are There Liberty or Property Interests at Play?

This one is trickier, and requires you to pay attention in Con Law and Administrative Law in law school, two things that I almost certainly did not do well enough to write a hornbook on either topic.  Still, I have a better grasp than most laymen and some attorneys of the topics, so I feel qualified to speak on it.

Let’s start with the difference between a right (which is what a property interest would be) and a privilege (which is not a right, and according to Tumblr you should always make sure you “check it”).  The first big distinction is a right is something you always had and always will have.  It can’t be taken away, or at least it shouldn’t be taken away.  A privilege, however, is different because it’s something that you are given that can be taken away.  This is legally speaking, of course.  There’s a case that summarizes the difference between a right and privilege as follows:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here.

McAuliffe v. New Bedford, 155 Mass. 216, 220 (1892).

In other words:  “You have the right to say what you want politically, but you don’t have a right to be a cop, that’s a privilege, and it’s fine to condition your privilege on the abrogation of your right.”

This whole “right or privilege” thing fell by the wayside over time, though, because people were being granted “privileges” that had a real impact on their rights, such as government benefits or, as above, the right to speech.  Or, as noted by SCOTUS in Roth v. Board of Regents, 408 U.S. 564 (1972):

“Liberty” and “property” are broad and majestic terms. They are among the

“[g]reat [constitutional] concepts . . . purposely left to gather meaning from experience. . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”

National Ins. Co. v. Tidewater Co.,337 U. S. 582, 337 U. S. 646 (Frankfurter, J., dissenting). For that reason, the Court has fully and finally rejected the wooden distinction between “rights” and “privileges” that once seemed to govern the applicability of procedural due process rights.

To put this in non-legalese:  “We’ve previously determined that liberty and property rights don’t just mean the right to not be thrown in jail without due process and the right to keep your physical property without being thrown in jail.  They include a lot of other shit, too.”

One of the things that has fallen under liberty and property rights, by the way, includes a person’s interest in their employment, such as the property interest of a professional in their license or, as in Roth, a tenured professor in his employment when it is guaranteed by statute.  Of course, in Roth the opposite was true:  an adjunct who didn’t yet have tenure was found not to have a property or liberty interest in his employment, but a tenured professor would have.  In those cases, where the state grants someone an interest and protections in that interest for their employment, it can’t be removed without due process.  Note: this same thing is true for people on public assistance, as in Goldberg v. Kelly.  The gist of it is once the state has given you something, it can’t then rip it away without due process, ya dig?

So, we could say that, because the actions that were taken here affect Ryan’s employment in a roundabout way, namely through the removal of grants and the determination that he had committed an act that qualified as sexual harassment in his capacity as a university professor, and he was tenured, there are liberty and property interests at play here.  The action was taken in relation to his employment, which he has an interest in as a tenured state employee that was granted by the state, and as a result actions against his employment could have the effect of injuring his life or property interests in relation to that employment or profession.

So….maybe?  Maybe he has a property or liberty interest?  He certainly has one in relation to his tenured status as a university professor, as Roth is clear that a tenured professor has a property interest in their continued employment.  The question in relation to that interest, then, is based not on whether or not he has an interest, but rather whether or not the actions of the University of Kentucky constituted a deprivation of Professor Ryan’s interest.

Was There a Deprivation of Ryan’s Interest in His Employment?

What is the extent of that interest, though?  Ryan wasn’t fired, he just had some grants and such taken away from him.  In essence, does Ryan’s employment as a tenured professor also grant him the right to receive grants and awards with monetary value, as well as an entitlement to protect those things with due process?  That’s an interesting question in and of itself, and one far above my pay grade.  There are, like, five guys in the country who actual practice constitutional law well enough to make a career out of it, and I’m not one of them.

Essentially, the question is whether or not Ryan’s protected interest is an interest to be employed absent some sort of due process, or an interest to be employed at the same level of pay and with all associated opportunities absent some sort of due process.  It’s a fun question, and one with no real answer in this context.

For example, if this was a civil rights retaliation sort of action, we’d have a more definite answer thanks to Burlington, N. & S.F. R. Co. v. White, 548 U.S. 53 (2006).  This case centered in a large part around what an “adverse employment action”  is, as there was a circuit split in the meaning of that term when bringing a Title VII retaliation case.  The split was between whether it was between any action that had “an adverse effect on the ‘terms, conditions, or benefits’ of employment,” if it was limited to only those actions that were “hiring, granting leave, discharging, promoting, and compensating,” or if the determination of whether an action was adverse where the “action would have been material to a reasonable worker.”

In that context, SCOTUS determined an action adversely impacted a person’s employment when it’s impact was substantial enough that it might have dissuaded a reasonable worker from acting to preserve their civil right.  However, is that really instructive to us in Professor Ryan’s case?  Maybe, maybe not.  Burlington was decided in the context of what was impermissible retaliatory conduct, not in determining the extent of a person’s property interest in their employment.  However, you could argue that Burlington is instructive in showing that the worker’s interest in their continued employment is not simply based on the employment and compensation, but also on tangential benefits such as grants and awards, and, if a reasonable person in that same field would feel their employment was being negated by the employer action they are therefore entitled to due process prior to being stripped of those rights.  However, the argument cuts both ways, in that Burlington is a completely different case in a completely different area of law.

BUT that does play into the next area of this, because

Ryan Could Claim His Liberty Interests were Impacted

Look, I’ve already said I’m not a constitutional scholar, so let’s accept I may be wrong about every single piece of this.  I’m a guy with a law degree and a bar license swinging so far outside of his weight class that I’m gonna get knocked out when the actual constitutional guys see this.  However, before I see the tweety birds above my head, I want to point out that in Footnote 14 to Roth, SCOTUS specifically stated as follows:

While the Court of Appeals recognized the lack of a finding that the respondent’s nonretention was based on exercise of the right of free speech, it felt that the respondent’s interest in liberty was sufficiently implicated here because the decision not to rehire him was made “with a background of controversy and unwelcome expressions of opinion.” Ibid.

When a State would directly impinge upon interests in free speech or free press, this Court has on occasion held that opportunity for a fair adversary hearing must precede the action, whether or not the speech or press interest is clearly protected under substantive First Amendment standards. Thus, we have required fair notice and opportunity for an adversary hearing before an injunction is issued against the holding of rallies and public meetings. Carroll v. Princess Anne,393 U. S. 175. Similarly, we have indicated the necessity of procedural safeguards before a State makes a large-scale seizure of a person’s allegedly obscene books, magazines, and so forth. A Quantity of Books v. Kansas,378 U. S. 205; Marcus v. Search Warrant,367 U. S. 717. See Freedman v. Maryland,380 U. S. 51; Bantam Books v. Sullivan,372 U. S. 58. See generally Monaghan, First Amendment “Due Process,” 83 Harv.L.Rev. 518.

In the respondent’s case, however, the State has not directly impinged upon interests in free speech or free press in any way comparable to a seizure of books or an injunction against meetings. Whatever may be a teacher’s rights of free speech, the interest in holding a teaching job at a state university, simpliciter, is not itself a free speech interest.

Roth, 408 U.S. at 574-75 n. 14.

If you’re wondering, “simpliciter” is fancy lawyer speak for “simply.”  I know Latin!

The importance of this footnote is the following language from the opinion:

To be sure, the respondent has alleged that the nonrenewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities.

Roth, 408 U.S. at 574-75.

So how is that important?  Well, let’s look at the facts again.  Ryan gave a speech.  In that speech he quoted Beach Boys lyrics.  Someone, somewhere, took offense to the recitation of those lyrics.  The University investigated and determined that Ryan’s speech was offensive, and stripped him of awards and grants as a result of this determination.  Prior to the deprivation of the awards and grants, Ryan was, according to him, not given the opportunity for a hearing.

This is not a case where Ryan made sexually charged remarks to a student, or a class of students, or engaged in targeted gender-discrimination.  In fact, it seems the speech served a specific purpose of highlighting cultural differences, and was legitimate speech.  The University, however, has adjudged this to be non-protected speech, and punished him by the removal of things that could be considered material to the employment, and thus resulting in an adverse employment action against Ryan, all without a hearing.  As SCOTUS states in Roth, although it is pure dicta, where speech concerns come into play, the whole ball game changes as Freedom of Speech is one of those fundamental rights, and the University in this situation is a definite government actor.

But then we’re getting into First Amendment stuff, and while a public employee doesn’t surrender their right to free speech as a private person, back in 2006 SCOTUS held, in a narrow 5-4 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), that a government employee who is acting in their capacity as an employee in the course of their employment does subject themselves to employer control of their speech.  This is interesting for Ryan, because the language that subjected him to punishment was contained in a speech given in his role as a professor at the University of Kentucky, in the course of that employment, and for the benefit of the University.  This could negate the free speech protections, in my uneducated read.

But even if it did, how fucking concerning is that?  Part of the role of a university professor is to provide different views and expressions, and to expose students to the world around them.  Is the lesson that is being learned from this that a public university professor must submit his remarks for editing and approval to the University before making them?  That’s kind of a chilling thought, isn’t it?

Even getting past this free speech stuff, it’s worth remembering that in Roth, the holding was based on two things:  First, the professor was not tenured and therefore had no property interest that required due process; Second, the professor not being granted tenure was unlikely to have an adverse effect on his future employment and therefore didn’t impact his liberty interests.  Free speech was discussed, but was not before the court.

Liberty interests as to reputation are…tricky.  First, SCOTUS addressed them in Codd v. Velger, 429 U.S. 624 (1977), and acknowledged that information in an employee file that is detrimental to a government employee’s future employment can give rise to a protected liberty interest in reputation by stating as follows:

The Court holds that respondent’s failure to allege falsity negates his right to damages for the State’s failure to give him a hearing. This holding does not appear to rest on the view that a discharged employee has no right to a hearing unless the charge against him is false.[1] If it did, it would represent a radical departure from a principle basic to our legal system—the principle that the guilty as well as the innocent are entitled to a fair trial.[2] It would also be a departure from Board of Regents v. Roth, 408 U. S. 564, 572-575. In that case the Court concluded that a person is deprived of liberty when the State’s refusal to rehire him destroys his “good name” in the community or forecloses him from practicing his 633*633 profession. A hearing may establish that such a deprivation of liberty is warranted because the charges are correct. But Bishop v. Wood, 426 U. S. 341, 349, makes it clear that the truth or falsity of the charge “neither enhances nor diminishes [the employee’s] claim that his constitutionally protected interest in liberty has been impaired.” If the charge, whether true or false, involves a deprivation of liberty, due process must accompany the deprivation. And normally, as Roth plainly states, the Constitution mandates “a full prior hearing.” 408 U. S., at 574.[3]

Long read for this:  When the state action stigmatizes a person such that their reputation in the professional community is harmed, due process should be required regardless of whether the accusations are true or false.

However, as is subsequently made clear in Paul v. Davis, 424 U.S. 693 (1976) and Siegert v. Gilley, 500 U.S. 226 (1991), it’s not enough that a government statement tends to harm reputation, there has to be something more, or “reputation plus” injury.  In Roth it would have been the failure to rehire, but in Paul and in Siegert it was the failure of the party to show a “plus” that ended the case.  Paul, by the way, is particularly applicable specifically because it was a Kentucky case.

Of course, this doesn’t take into account state laws, which can provide more (but not less) protection than the U.S. Constitution.  In Pennsylvania, for example, a person has a property and/or liberty interest specifically in their reputation which triggers due process rights.

In short, Ryan has a liberty interest at stake in his reputation, but that alone is unlikely to give rise to a requirement for due process.  There needs to be something more to trigger due process rights, otherwise what Ryan is looking at is a pure defamation claim.  However, he may be able to make that argument based on free speech or injury to a property interest in employment and the benefits related to it.

Conclusion

So, what am I really getting at here?

Maybe Ryan was entitled to due process before adverse action was taken against him for speech that may be offensive under Title IX, as he was a government employee of a state-funded university.

Maybe Ryan was not entitled to due process, because he can’t sufficiently identify a protected interest in life, liberty, or property that would trigger the right to a hearing.

Maybe, even if Ryan was entitled to due process, that requirement has been satisfied based on the investigation and his participation in it thus far given the nature of the government action.

In any case, I’m not a constitutional scholar.  I’m really writing about this purely because I took a class from Professor Ryan back in the day, and I’m somewhat baffled by how lyrics to a song that is constantly played on the radio and considered a classic of Oldies music are offensive to the new generation.  Did they never hear it growing up, because I couldn’t escape it.  I’d be interested to see what would happen if Ryan were to file a suit though.

Hell, maybe he could set some precedent.

-BB

 

 

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