Should a professor’s comments outside the classroom lead to his suspension and investigation as a faculty member?
That is the situation at Texas Tech, which placed Professor Jairo Fúnez-Flores on paid leave and opened an investigation into his conduct this week, after calling his social media posts about Israel and the war in Gaza, “hateful, antisemitic, and unacceptable,” and “antithetical” to the university’s values. Fúnez-Flores will remain suspended while under investigation by the university system’s Office of Equal Opportunity for discriminatory harassment under Title VI of the Civil Rights Act.
When it comes to the protections for academic freedom, the university’s actions have raised eyebrows, particularly concerning due process. By their own account, the investigation was predicated on Fúnez-Flores’s extramural comments, rather than on any complaints from students or fellow employees. That’s the essence of a fishing expedition — literally searching for new evidence to justify disciplining a professor over extramural speech some have found offensive or disfavorable.
Second, Texas Tech has not specified which social media posts they are responding to, leaving both Fúnez-Flores and the public in the dark. The entire episode appears to have been triggered after an outside group, Texas Scorecard, posted an article calling for Fúnez-Flores’s termination over his posts. That the university adopted this same position, without even completing its own investigation, fits an alarming pattern we are seeing across the U.S., of universities caving to external pressures to discipline faculty over their speech. Universities should be defending faculty against efforts to undermine constitutional protections for academic freedom, not undermining the principle themselves.
While some may have taken offense at Fúnez-Flores’s public comments, it is a stretch to treat that as obligating the university to investigate him under Title VI. A university that accepts federal funding is responsible under Title VI to undertake such an investigation when they knew, or reasonably should have known, about the potential incidence of discriminatory harassment by a third party (e.g. a professor against students). However, the standard for this determination is whether that harassing conduct, based on protected characteristics such as race, color, or national origin, was sufficiently severe, pervasive, or persistent to create a hostile environment that interferes with students’ ability to participate in the programs and activities of the school. This can include antisemitism; but because Texas Tech has not even identified which posts are at issue, it is unclear on what basis they have determined that Fúnez-Flores’s posts are discriminatory under Title VI, let alone sufficient to create a hostile environment.
This is plainly a harsh sanction for the facts at hand. We are not aware of concerns raised by students or others regarding a possible hostile environment created by Funez-Flores. Even if there were such claims, rather than suspending him pending investigation, there are a range of steps the institution could consider to alleviate concerns on an interim basis, such as allowing students to transfer courses. None of that appears to have been tried here.
Professors’ speech on social media is broadly protected, even when it may be offensive. The point of academic freedom is to protect scholars with even controversial, spirited, or noxious views. Universities can always encourage professors to be conscientious of how their words affect others; how, for example, commentary about Israel and the war in Gaza may affect students of a diverse range of backgrounds.
But we must guard against the chilling implications of this case: that universities should be suspending and investigating professors for harassment, without due process or a clear rationale.
