ACTA in the News | Freedom of Expression

Law school under fire for suspending DEI critic without pay, allegedly defaming his student

Law dean publicly accused former student who donated to Scott Gerber's legal fundraiser of cheating, student claims, promising to get HR involved.
JUSTTHENEWS.COM   |  June 15, 2023 by Greg Piper

A private university in the Midwest has brought together both the academic left and right by punishing law professor Scott Gerber – known for opposing diversity, equity and inclusion programs that he says lack viewpoint diversity and illegally discriminate by race – on the basis of “collegiality” violations it has declined to detail and allegedly aren’t punishable in the faculty handbook.

In addition, a former student of the professor told Just the News that Ohio Northern University Law Dean Charles Rose falsely accused him of cheating on a paper that recently won a national award after the student donated to a legal fundraiser for Gerber.

The American Association of University Professors (AAUP), National Association of Scholars (NAS), American Council of Trustees and Alumni and dozens of professors led by Harvard Law’s Randall Kennedy have demanded answers from ONU about its treatment of Gerber, a 22-year veteran of its law faculty and member of the Ohio Advisory Committee to the U.S. Commission on Civil Rights.

Gerber compared his ordeal to Franz Kafka’s “The Trial” in The Wall Street Journal a week after the Foundation for Individual Rights and Expression, or FIRE, revealed he had been suspended from all faculty duties, denied pay and banned from campus on April 14 – three months after refusing to cooperate in an external investigation of allegations against him that ONU refused to specify.

ONU contradicted itself by first claiming through its outside law firm that Gerber was under no obligation to cooperate, then threatening dismissal under the faculty code for taking its word, according to FIRE’s March 6 letter to ONU’s law firm Taft Stettinius & Hollister. This reversal violates ONU’s accreditation terms with the Higher Learning Commission, the civil liberties group said.

HLC opened an initial review of Minnesota’s private Hamline University earlier this year after FIRE filed a complaint on behalf of a professor dumped for offending some Muslim students. The professor also sued, and Hamline’s president announced her resignation shortly thereafter. HLC told Just the News it couldn’t disclose if a complaint had been filed against ONU.

Gerber speculated that his objections, as University Council vice chair, to exclusionary forms of DEI that ONU was “aggressively pursuing” and that his broader opposition in recent op-eds and TV appearances put a target on his back.

Removal from his classroom happened days after Gerber published an op-ed in The Hill defending Clarence Thomas, a subject of his scholarship, against ethics claims related to the conservative Supreme Court justice’s friendship with billionaire Harlan Crow.

FIRE provided Just the News a copy of Kennedy’s letter with 57 signatures, from faculty at Cornell, University of Pennsylvania, Princeton, Stanford, George Mason University, University of Virginia, University of Texas, Rutgers, Vanderbilt and University of Wisconsin-Madison among other institutions.

Kennedy sent it to a listserv for constitutional law professors and gave the list two hours to sign before sending it, Gerber said.

Gerber’s threatened dismissal has drawn broader notice in the political and entertainment worlds.

Sen. Marco Rubio (R-Fla.) called out the United Methodist-affiliated school in a Daily Caller News Foundation essay last Thursday. ONU provides a “sneak peak” of a future where DEI policies, increasingly mandated by accreditors, create a stifling climate of censorship and that “intellectual diversity—arguably just as important as diversity of skin color, ethnic origin, gender, etc., if not more so—will plummet,” Rubio wrote.

Former NFL sideline reporter Michele Tafoya interviewed Gerber on her podcast May 31.

Campus security, accompanied by armed town police, pulled Gerber out of class April 14 and escorted him to see Rose, who threatened dismissal if Gerber didn’t sign a “separate agreement and release of claims” within a week – itself a violation of federal age discrimination law’s 21-day window for employees older than 40, Gerber’s op-ed claims.

Lack of collegiality also does not qualify as cause for dismissal in ONU’s faculty handbook, he said. NAS President Peter Wood told ONU President Melissa Baumann that if “Rose was acting on his own, it would be clear grounds for his dismissal … [s]o you own this situation.”

According to Wood, Rose sent an announcement to the law school faculty June 8 saying he has negotiated a new, five-year contract with the university “and will be with you as the dean of the college of law for the foreseeable future.”

Gerber’s former ONU colleague Tristin Kilgallon started a legal fundraiser for him last month that has thus far raised about a tenth of its goal. “ONU’s police-state-type actions are almost certainly in retaliation” for Gerber’s opposition to exclusionary forms of DEI, Kilgallon said.

Justin Marks, Gerber’s former student and research assistant, told Just the News he wouldn’t have submitted a class paper to the ONU law review without the professor’s encouragement. The New Civil Liberties Alliance gave Marks and the law review its inaugural $10,000 prize for best article by a student for his “Fourth Amendment Take on Hypothetical ‘Lock-Down’ Orders.”

The situation “continues to baffle me,” Marks wrote in a statement for Just the News. “A case like this could be analogized to cases in our law textbooks of what is not acceptable.”

Dean Rose approached Marks at a barbecue and noted the student had donated to Gerber’s fundraiser, Marks alleged.

“I suppose you feel like you owe professor Gerber because he practically wrote your paper” that won the NCLA award, Rose allegedly told him “in front of my classmates and others.”

This reckless accusation against a “soon-to-be lawyer … will be under review by Human Resources, and perhaps others if I so choose,” Marks wrote. Rose’s behavior prompted Marks to donate to Gerber’s legal fund again “from my seat.”

Rose on Monday declined to comment for this story. 

The faculty handbook’s promised academic freedom overrules whatever it says about collegiality, FIRE’s May 2 letter to Baumann says, warning ONU that Ohio courts construe these documents as legally binding contracts.

“I’ve never been in a fight in my life,” Gerber told radio host Bob Frantz on Thursday when asked about the basis for the “perp walk” from his classroom.

Ada Chief of Police Alec Cooper told The College Fix its “officers were requested for a standby during this incident … in case of an issue” and “placed in a small hallway away from everyone to minimize our presence.”

Gerber shared the AAUP letters with Just the News on condition they not be published. 

The first AAUP letter April 19 says ONU justified pulling Gerber from class “to ensure his safety, the safety of others, and to protect the instructional integrity of the college of law’s program of instruction,” and offered to let him resign in May 2025 contingent on teaching remotely and abandoning his service duties.

“We have seen no indication” that Gerber poses a threat of “immediate harm” that justifies suspension without pay, AAUP told Baumann. ONU failed to consult an “elected faculty committee” on the “propriety, duration and other conditions” of a pre-hearing suspension as its rules require.

“We are also at a loss to understand” how Gerber’s “continuance in his duties is a threat to safety – or the institution’s instructional program” when ONU offered to let him keep teaching for two years, AAUP wrote, also faulting the lack of specific allegations and a low evidence standard.

ONU refused to provide a “substantive response” to AAUP “in order to protect the integrity of the process and out of respect for the faculty member’s privacy,” according to AAUP’s May 2 followup letter. It says Gerber shared documents confirming the school’s thin basis for removal.

“We are following our faculty-driven process for the dismissal of a tenured faculty member for cause,” ONU spokesperson Dave Kielmeyer told Just the News.

Asked to explain that process, Kielmeyer said it “demands confidentiality, [but] I can tell you that any claims that this was an effort to silence Professor Gerber because of his viewpoints, or that it is somehow related to the University’s Diversity, Equity, and Inclusion initiatives are categorically false.” He didn’t respond to Marks’ allegation about Rose’s behavior.

ONU’s actions could backfire with state lawmakers. Cleveland Plain Dealer editorial board member Ted Diadium invoked Gerber to advocate for an Ohio Senate-approved bill that would ban mandatory diversity training and using DEI as a “litmus test in hiring.” SB 83 is currently awaiting action in the Ohio House.

This piece appeared on on June 12, 2023


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