A Faculty’s Right to Teach: Does Academic Freedom Protect a Teacher’s Techniques in the Classroom?

The story of the UPenn grad student, her twitter account, and her teaching techniques started like many of these stories.  The snowball started to roll when The Daily Caller, a popular conservative news site, ran a story entitled: “Ivy League Teaching Assistant Says She Calls on Black Women First, White Men Last.” Earlier in the day, The Chronicle of Higher Education article on the story read: “Grad Student Sounds Alarm Over Penn’s Response to Online Attacks.”  The following day, the article’s title at Campusreform.org read “UPenn TA Boasts of Calling on White Male Students Last.”  The next day, Reason.com wrote an article entitled: “This UPenn Teacher Justifies Her Refusal to Call on White Male Students: It’s ‘Progressive Stacking.’”

As far as some of these stories have gone lately, this one has not exploded—at least, not yet—like some of others, those which continue to surround Drexel professor George Ciccariello-Maher come to mind.  However, for those who have weighed in, the grad student’s chosen teaching technique has been polarizing.  Since the story broke, the University of Pennsylvania has pulled the grad student from the classroom pending an investigation, cancelling their classes last week.  So what is so controversial? And could their behavior be protected by academic freedom?

The crux of the issue is that a grad student, Stephanie McKellop, who uses they/them pronouns, wrote a series of Twitter posts about their teaching techniques.  Most controversially, McKellop wrote: “I will always call on my black women students first. Other POC [people of color] get second tier priority. WW [white women] come next.  And, if I have to, white men.”  After pulling McKellop from the classroom, the Dean of the Penn School of Arts and Sciences wrote that the university is committed to providing “respectful work and learning environments for all members of our community,” adding “We are looking into the current matter involving a graduate-student teaching assistant to ensure that our students were not subjected to discriminatory practices in the classroom and that all of our students feel heard and equally engaged.”

The teaching method in question is “progressive stacking.” The technique, which was first used during the Occupy movement though some say it goes back to the 1990’s, is not widely employed in academia.  Described as a “leveling process,” advocates argue that the method ensures that voices that are often submerged, discounted, or excluded from traditional classroom discussion get a chance to be heard.  It works like this: the professor asks a question; a number of students’ hands go up (the stack); the professor calls on students that they deem to be from historically marginalized groups first.  Nolan L. Cabrera, an associate professor at the University of Arizona, spoke to The Chronicle to explain that the technique is simply “an acknowledgment that traditional pedagogical techniques have silenced marginal voices.”  He added that it is not much different from what many professors do when calling on students who have not yet contributed to classroom discussions.

While the investigation progresses, it is important to ask whether the “progressive stacking” teaching technique is covered by academic freedom.  The answer is, like it so often is in these questions, “maybe.”

In the 1940 Statement of Principles on Academic Freedom and Tenure, the AAUP addressed classroom teaching.  The AAUP writes in its Second Principle: “Teachers are entitled to freedom in the classroom in discussing their subject.”  The UPenn Academic Freedom and Responsibility Policy mirrors that language.  The AAUP passage has been interpreted to mean that teachers have a great deal of freedom to run their classroom as they see fit.  This freedom includes how a professor chooses to teach their class, the coursework the professor assigns, and the manner in which the professor presents their material.

However, that freedom is limited.  The introduction of irrelevant and controversial material would not be protected by academic freedom, such as the introduction of blatantly political mathematical word problems.  Courts, and college disciplinary boards, have required that teachers deliver a class consistent with the applicable course description contained in the college catalog.  Providing clarinet lessons half-way through the semester of a Sociology 101 course would not be protected and neither would teaching undergraduate chemistry students basketball in the laboratory.  Even the most radical advocates would agree that abusive language, assaultive speech, or bullying in the classroom, toward a student, by a professor would not be protected by academic freedom.

In addition, ineffective or disruptive teaching methods can lead to discipline as well.  Repeatedly reading aloud from the textbook for entire class periods, excessive class time spent on non-content activities, and consistently showing YouTube videos instead of teaching are all examples of situations that could lead to administrative discipline that would not violate academic freedom principles.

On the other hand, there is a great deal of flexibility in what would be protected by academic freedom in the content presented to students.  Teaching the American Revolution through the lens of communism might be odious to some, but the professor’s material and presentation would most certainly be protected.  Teaching about the, supposed, economic efficiency of slavery would be covered by academic freedom as well, even if some of the students might be offended.  The extent of this flexibility, however, is unclear: would it prevent a Christian professor from teaching Biblical creation instead of Darwinian evolution in a biology course? Or a contemporary historian who teaches that the 9/11 attacks were an “inside job”?  The truth is that this area of the law is underdeveloped, making definitive statements unwise. In cases like the ones mentioned here, the determination likely would come down to context.  If the teacher is using academic techniques, consistent with the standards of their discipline, it would be difficult to conclude that these professors should be disciplined for the content they deliver in their classrooms.

Similar flexibility applies to teaching techniques.  Choosing to lecture to a psychology class would absolutely be protected, so would deciding to teach certain subjects in the course through group project work.  If the method is widely accepted or is a traditional teaching method, arguing whether its incorporation into a classrooms merits discipline is a difficult position to prove.  Whether or not the technique is the most effective teaching method is immaterial.  Realistically, if professors were left to only the administration-approved, most effective teaching methods, the creativity that professors bring to their work would be unjustly stifled, making college courses significantly more boring.

Which brings the inquiry back to McKellop and their use of the “progressive stacking” method. McKellop is under investigation for violating UPenn’s nondiscrimination statement.  As the facts stand, it is hard to see how their use of “progressive stacking” is, in fact, discriminatory, especially since McKellop did not say that they refuse to call upon certain students or denies any student the opportunity to speak in class based on their gender, race, etc.  It is possible that the original complaint that brought McKellop to the attention of the administration contains more evidence of discriminatory behavior.  If that is the case, academic freedom cannot be said to protect such discriminatory behavior and her teaching techniques may need to be modified.  But pending more damning evidence, McKellop’s “progressive stacking” technique, even if offensive to some, is likely covered by the AAUP’s definition of academic and UPenn’s own academic freedom policy.

McKellop’s story does contain a lesson for other colleges.  Academic freedom is a messy, disorganized, and muddled privilege.  In addition, academic freedom protections are widely misinterpreted, misapplied, and misunderstood by college administrators, faculty, and the public.  On campus, some of that confusion can be remedied by better education and training of both faculty and administrators—something that the attorneys at HMBR can provide.  Regarding the public, however, institutions that defend and define academic freedom are critical in a time where colleges and their faculties are routinely and harshly criticized by individuals from across the political spectrum.  Colleges and universities need to be equipped to defend their institutional principles, like academic freedom, when under attack from outsiders, while also being prepared to protect them from unwarranted and expansive faculty interpretations.  This is a difficult situation to be in, but academic freedom, as a principle, is worthy of a robust defense.

Confronting the Past, Preparing for the Future: Best Practices for Colleges with Controversial Statues on Campus

Silent Sam

Written with Debbie Osgood

Over the past few weeks, colleges across the country have been confronting an issue that vexes even the best academic: the past.  Colleges from Texas to North Carolina are grappling with the issue of monuments and statues that, to some, glorify a racist past in American history.  While there are convincing arguments on both sides—leave the statues up, take the statues down—college administrators must deal with this issue with sensitivity, attention, and nuance.

One of the authors of this post is connected to this issue more than most because he is not only an attorney, but also a practicing historian, who studies and regularly lectures on the American Civil War.  After looking at the issues, and drawing upon our collective experience, here is what HMBR believes are the best practices colleges can employ to deal with this issue:

  • Taking a Systematic Approach to the Past

Studying the story behind the statue can provide historical context to the statue’s meaning.  Institutions that have investigated why their statues were originally commissioned, who commissioned the statue, and what their intent was, have found that the additional historical information has contributed to the college community’s understanding of the statue and helped better place it in the proper context.

  • What Did the Statue Represent When it was Erected? What Does It Mean Now?

Beyond studying the original intent behind the statue, it is important to study the “life” of the object.  As important as the first meaning behind the statue is, it is equally important to place the statue in its proper, lifelong context.  This analysis can lead to interesting conclusions about what connections exist between the college’s culture, the students, faculty, and community who live and study in the presence of the object, and how their experiences have evolved over time.

  • Concerns over Vandalism and Security

Recently, colleges confronting this issue have encountered the very real concerns of vandalism and exorbitant security costs.  Many of these colleges have decided that the costs are too high and have decided to sequester the statues elsewhere, such as in the library archives or in storage.  While some colleges have chosen to cover statues to protect them from damage, some have reached out to off-campus law enforcement for support.  Colleges are finding, however, that they cannot always rely on outside partners for assistance on these issues.  If the college cannot reasonably bear the cost of securing the object, protective measures, such as fences or cameras, can often be employed in the short-term while policy is being formulated.

  • Review State Statutes on Statues

Many states, especially in southern states, have passed legislation restricting whether public institutions can remove statues from their grounds.  Colleges need to keep themselves informed on these laws and whether amendments or changes are being made to address contemporary crises.  These laws can create additional levels of notice and approval, and potential liability, no matter what institutions decide to do.

  • Consider Possible Constitutional Implications

Public colleges will want to carefully consider any constitutional implications of their actions related to confederate monuments.  Are confederate symbols, including the flag and monuments, a form of free speech protected by the First Amendment of the U.S. Constitution? Or are they a form of government speech and not subject to the Free Speech Clause?  In its recent case involving a band named “the Slants”, the U.S. Supreme Court cited the posters produced by the federal government during World War II to promote the war effort as an example of government speech that is not required to be viewpoint neutral.  Matal v. Tam (June 19, 2017).  Are confederate monuments akin to war posters?  The context of the college’s relationship to the monument at issue (is it a state-owned monument? Is it on state land?) will be critical in evaluating the constitutional considerations.

  • The Statue and an Institution’s Values

Once the review of the history and context is complete, the college should consider whether the statue, and the way the university has come to understand it, comports with the institution’s values.  While it is easy to see why statues honoring Confederate statues could be offensive to some students and community members, and, on the other hand, why the unceremonious removal or damaging of the statues could be offensive as well, the unique way that your institution decides to treat the statue can provide context, understanding, and meaning beyond what advocates from either side would present.


While this issue can bitterly divide a college campus, it does not have to.  With the proper context, study, and attention, a college can navigate through this politically sensitive issue without dividing their institution’s members, while also paying respect to the American past and the unique identities of their students, faculty, and college community.

Welcome to the New Higher Ed Law Blog!

Another school year is just around the corner.  Students will return to their dorms later this month.  Professors are busily putting the final touches on their syllabi and finishing off summer writing projects.  Administrators are hurriedly planning budgets, forming strategies, and seeking guidance on what may lie ahead for the new academic year.

Here at the Education Practice at HMBR, we are planning our own new “school year,” of sorts.  We have restarted our Higher Ed Law Blog!  We look forward to using these pages as a way to connect with you and keep you informed.  We plan on bringing you news pieces, hearings announcements, conference recaps, and analytical pieces to keep you up to date on the latest developments in higher education and to give you the advantages you need to thrive in an increasingly competitive marketplace. We also expect to start posting on the connection between higher education and related topics, such as labor, healthcare, and others.

As you read our blog, you can continue to rely on HMBR’s deep knowledge of, and multi-disciplinary approach, to higher education, drawing on our experience working in the private as well as the public sector.  We continue to be passionate about higher education and helping you achieve your academic, business, and institutional goals.

To get started, here is a list of developments that we are monitoring for the upcoming academic year as well as some suggestions about how we can help you navigate these issues:

Title IX Guidance – As has been widely publicized, the U.S. Department of Education is considering whether and, if so, how to revise its guidance on sexual harassment and sexual assault. While we cannot predict exactly what any new guidance will say, we recommend that your institution be ready with a proactive strategy for communicating to your community your values and commitment to compliance and fairness for all parties.  If the Department does issue revised guidance, we will send out a newsletter to you explaining the changes, offering new training sessions, and providing you with a path forward in this latest era of Title IX enforcement.

Academic Freedom and Free Speech – Most experts are predicting another year of high profile free speech controversies on campus. These eruptions can lead to unwanted publicity and disruptive campus upheaval that can negatively impact an institution’s public image and reputation.  However, with the right policies, colleges can continue to be a place where free expression is respected and all community members feel valued.  HMBR is well-equipped to provide training sessions on academic freedom and free speech issues as well as to provide comprehensive reviews of your campus policies and to assist you in writing new policies or handling specific incidents as they occur.

The Janus Case and Labor Issues – The Supreme Court is likely to hear a challenge that could put an end to the practice of public sector unions charging fees to non-members. The impact of the case could greatly reduce public sector unions’ political authority and potentially have a lasting effect on collective bargaining agreements for public institutions.  In addition, the movement to unionize adjunct faculty and graduate students is showing no sign of stopping.  HMBR offers a team of attorneys experienced in representing labor unions and management in a full range of labor and employment matters, providing our clients with well-informed perspectives that address complex legal and regulatory requirements as well as your critical business demands.

Additional Issues – New and Revised Financial Aid Regulations; Accreditation Issues and Program Modifications; Undocumented Students, DACA, and “Sanctuary Campuses”; Student Demographic Changes and Its Impact on Populations and Services; International Student Recruitment and Support; Advances in Education Technology and Delivery Systems


HMBR is uniquely positioned on all of these topics and more.  We are true problem-solvers with the experience, knowledge, and ability to provide you with comprehensive legal representation to help you successfully overcome the hurdles your institution faces.  While the new academic year will definitely have its share of challenges, our attorneys routinely assist clients in structuring and executing a wide range of creative solutions that assist colleges and universities in moving forward and achieving their institutional goals.

We look forward to keeping you informed here at the Higher Ed Law Blog.  If you have any questions, concerns, or would like us to post on a topic of interest to you, please feel free to contact us.

Here’s to a successful 2017-2018 Academic Year!