This bill would protect whistleblowing professors at Missouri universities

Richard Arend felt like he had a target on his back.

As a tenured professor at the University of Missouri-Kansas City, Arend called for investigations into falsified rankings within the Bloch School of Management. That is, until he was dismissed in December 2016.

In a lawsuit, Arend contends that he was fired for trying to expose wrongdoings that ultimately led to the university forfeiting accolades.

“Now, I found out that the only person ever to be dismissed with cause in the last ten years at (UMKC) is me,” Arend said, “who coincidentally was the poster boy for whistleblowing of alleged financial and academic frauds.”

UMKC acknowledged that Arend was the only faculty member dismissed for cause in the last decade, but insists that Arend’s whistleblowing had nothing to do with his firing. The university said that reasons unrelated to the Bloch School led to his dismissal and that a 10-member faculty committee made the recommendation.

A bill sponsored by Sen. Ed Emery, a Lamar Republican, would give whistleblowers in higher education greater recourse.

The bill would protect professors at public universities from retaliation for certain forms of expression, such as drawing attention to a misuse of funds.

The bill also would allow professors, graduate student instructors and anyone in a similar teaching position to file a lawsuit and receive compensatory damages and attorney’s fees if the university is found at fault.

Supporters say the bill would protect academic freedom and reinstate whistleblower protections for professors. Opponents say the bill may give the state the power to determine what’s acceptable in the classroom.

UMKC said it had no comment on the bill, and that its general practice is to not comment on pending legislation.

Academic freedom

The bill also would protect professors for what they say to students in the classroom. It was inspired, Emery said, by a rise in divisiveness across college campuses.

“That supposedly is where you debate differences in ideas and you challenge each other to think,” Emery said, “and it was almost as if primarily the liberal side was saying, ‘Look we know what we believe and we don't want to hear from anybody else, because we're not going to even reconsider what we've already decided.’ And this was an attempt to say, ‘Not in Missouri.’ ”

Joe Cohn, the legislative and policy director at the Foundation for Individual Rights in Education, an organization that advocates for free speech, said it’s “crucial to the health and survival” of college campuses that academic freedom is protected. Cohn said he has seen professors from across the political spectrum face adverse action for expressing their views.

“It's usually a situation where a faculty member says something that brings a tremendous amount of negative public attention and a university trying to protect its own brand image over the bigger principles of academic freedom,” Cohn said.

Greg Comer, a physics professor at St. Louis University and president of the Missouri Conference of the American Association of University Professors, or AAUP, said he's concerned that the bill could quash the academic freedom it intends to protect.

According to the bill, professors can still be disciplined for classroom expression that is “not reasonably germane to the subject matter of the course” and “comprises a substantial portion of classroom instruction.”

“The problem is, who decides what is reasonably germane?” Comer asked. “These are very vague statements.”

Comer said he worries that language like that will take control away from professors about what’s allowed to be discussed in the classroom.

“Faculty should have the primary say about what goes on in the classroom because we're the experts on the material,” Comer said. “And that's another problem with this bill, is that it puts in the hands of legislators control over the classroom.”

Emery acknowledged that’s always a danger, but pointed to the protests over racial tension in the fall of 2015 at the University of Missouri as a reason for the bill’s necessity.

“I don't like the state dictating things,” he said. “I think what we have here is what I would consider somewhat of a special situation, where you have the institutions of higher learning that have been demonstrated to be highly prejudiced to one way of thinking versus any counter ways of thinking. The very essence of a bill like this is to say we've seen enough of that to say that's not permissible.”

During a committee hearing for the bill, Sen. John Rizzo, a Kansas City Democrat, asked if the bill would have protected Melissa Click, a University of Missouri professor who was fired after blocking a student journalist from photographing the protests in 2015. Her firing was later investigated by the AAUP.

While both supporters and opponents of Emery’s bill pointed to Click’s treatment as a way professors can be retaliated against, ultimately the bill would not protect professors in a similar situation, Cohn said.

“Certainly her activism, generally speaking, on the issue of being out there would have been protected under this bill,” Cohn said of Click. “But she may have committed fireable offenses anyway when she shoved a student.”

Tenure isn’t safe

Emery’s bill comes shortly after Missouri stripped legal protections for whistleblowers. Last year, state lawmakers raised the standard for fired employees to win discrimination cases and curbed whistleblower protections for public employees — a measure former Gov. Jay Nixon vetoed several times in the past.

Emery’s bill, which has yet to be passed out of committee, would reinstate whistleblower protections for professors at public universities, said Marcia McCormick, a law professor at St. Louis University.

However, Emery said he wasn’t sure that would be the case.

"I would actually have to go back and reread that bill,” he said. “I didn't see an intersection for it where one was in conflict with the other.”

McCormick said she supports the bill because it’s necessary to reinstate whistleblower protections and it would ensure that non-tenured faculty who “don’t have any job security” will be protected, in addition to tenured faculty.

“Tenure isn't quite as secure as people think it is,” McCormick said.

Arend said he would like to see the bill put the onus on universities, rather than the whistleblower, to prove that actions of retaliation weren’t related to whistleblowing.

In addition, Arend proposed that in an instance of retaliation, an investigation by an independent law firm should be conducted, with its results made public. Ultimately, he said, recommendations should be made to the governor, who appoints the UM System curators, to decide what enforcement action to take.

“If the taxpayers of Missouri truly want an effective and ethical system of higher education — one that cannot be hijacked by a donor and corruptible administrators — they need to support legislation that severely punishes those who retaliate against whistleblowing,” Arend said.

This story was originally published March 22, 2018 at 1:35 PM with the headline "This bill would protect whistleblowing professors at Missouri universities."