Free Speech Win for Paramedics Instructor Deemed Insufficiently ‘Sensitive to Diversity’

A California paramedics instructor deemed insufficiently
“sensitive to diversity” will be allowed to return to his position
at Antelope Valley College (AVC). The
college settled with the instructor, Lance Hodge, after a
federal judge deemed his lecture about unusual cultural practices
paramedics might encounter a matter “of public concern” and allowed
Hodge’s first amendment claim against AVC to proceed.

In 2010, Hodge—a long-time paramedic and tenured AVC
instructor—gave a lecture about “weird” cultural practices his
students might encounter in the field. In his career as an
emergency medical technician (EMT), Hodge said he’d been exposed to
“witch stuff,” people using heated coins for healing, and women
eating placenta after childbirth.

Now it’s certainly not polite or “politically correct” to
describe cultural practices foreign to you as “weird.” But as far
as “insensitivity to diversity” goes, it’s pretty mild. Perhaps AVC
Dean of Health Sciences Karen Cowell, who was attending Hodge’s
lecture that day, could have pulled him aside after class and
suggested he reconsider his phrasing, and Hodge would have, and
everybody could have moved on. 

Cowell’s main objections to Hodge lecture were his use of the
word “burning” to describe a healing method more properly referred
to as “coining” and his use of the word “weird.” Deeming
Hodge’s statements as “inappropriate and disrespectful,” the school
required Hodge to improve his “sensitivity to diversity” by writing
a paper on discrimination and delivering a one-hour class lesson on
cultural diversity.

Hodge fulfilled both requirements, submitting a 27-page paper
and a lesson plan titled “Political correctness vs. the real world:
The EMT and professionalism in the face of offensive language or
behavior and our understanding of stereotyping and prejudice.” The
paper was accepted, but not the lesson plan, and Hodge was
threatened by human resources with disciplinary action if he
delivered it. He was also expected to submit another proposed
diversity lesson plan. 

Hodge filed a grievance, saying the punishment would violate

school policy, which grants that “academic freedom in the
pursuit and dissemination of knowledge in an educational
environment shall be ensured and maintained” and states that
faculty “shall not be subjected to censorship or discipline” for
expressing “controversial or unpopular” views. The school responded
by saying that Hodge had violated AVC’s ethics policy, which
requires employees to be “fair and respectful in all interactions”
with students, “work with people without prejudice,” and “respect
the personal values, beliefs, and behaviors of others.” 

While those are fine norms for workplaces and academia, they’re
also incredibly open to interpretation. “Respect” relies on intent,
and that’s hard to verify (we’re also in an era of increasing
progressive
scorn for intent). For his part, Hodge says the point of the
original lecture was teaching his students to respect
diversity.

With the help of the Foundation for Individual Rights in
Education (FIRE), Hodge challenged the university’s assessement in
a
letter, asking the school to “rescind its requirement that
Hodge present a lecture on ‘cultural diversity’ because of his
protected classroom expression.” When AVC refused, Hodge and FIRE
filed a complaint in the U.S. District Court for the Central
District of California.

In the complaint, Hodge alleged First Amendment retaliation and
infringement of academic freedom under the First Amendment. In
February, District Judge Philip S. Gutierrez allowed Hodge’s First
Amendment retaliation claim to proceed. From Gutierrez’s
decision: 

“Until a few weeks ago, Plaintiff’s First Amendment retaliation
claim presented a novel question of law in this Circuit: To what
degree are a public university professor’s teaching and writing
protected by the First Amendment?

The Supreme Court explained in (Garcetti v. Ceballos)
that ‘when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.’ However, the
Supreme Court did note a possible exception to this far reaching
rule, reserving the question of whether its holding applied to
‘speech related to scholarship or teaching.'”

Seizing upon this exception, the Ninth Circuit recently held (in

Demers v. Austin, 2014) that teaching and
academic writing must receive greater protection under the First
Amendment than what Garcetti currently provides. It
concluded tha a public university professor’s academic speech is
protected by the First Amendment under two conditions: it addresses
“matters of public concern” and the employee’s interest in
commenting on these matters outweighs the state’s interest in
“promoting the efficiency of the public services.”

Guiterrez decided that both Hodge’s situation fulfilled both
conditions. He chastised AVC for “consider(ing) the form of
(Hodge’s) speech to the exclusion of its context and content.”

Earlier this month, AVC and Hodge settled the case out of court.
The school will pay half of Hodge’s legal fees, he will retain
tenure, and he will not face disciplinary action nor be required to
offer an approved diversity lecture.

“After two years of litigation, I am very pleased with the
court’s determination that Mr. Hodge’s classroom speech on matters
related to public safety and the performance and training of first
responders is protected by the First Amendment,” said Hodge’s
lawyer, FIRE Legal Network attorney Arthur Willner. “It is in the
interests of the students, faculty, and the community at large to
foster the free and open discussion of these issues.”