Scholastic Gag Orders: Ndas, Mandatory Arbitration, and the Legal Threat to Academics

Scholastic Gag Orders: NDAs, Mandatory Arbitration, and the Legal Threat to Academics By Stephen Baskerville January 2021 Introduction Both mechanisms enable institutions to conceal unethical conduct that would bring As radical activists serve as self-appointed public condemnation upon them. Both censors in our cultural institutions, attention conservatives and liberals consider their has focused on the militants’ use unethical because they protect quasi-Bolshevik tactics. But much less administrators from legal liability and attention has focused on the absence of criticism while leaving scholars in legal resistance: the silence of able-minded jeopardy and possibly even at risk of scholars, whose talents and learning could criminal punishments.1 fight intimidation, and the failure of nerve by institutional leaders who could gain Because secrecy is the overriding overwhelming public support. imperative, information is difficult to obtain. These mechanisms exist to conceal, and Colleges and universities now respond not the mechanisms are themselves concealed by defiantly defending their principles, but and disguised. We cannot know therefore by devising new and secretive methods to how many and which institutions use them. rid themselves of the faculty who resist Nevertheless, recent scandals involving intimidation—without the world knowing. Evangelical institutions show that they seem to be especially popular at religiously Two methods provide a veil of legally affiliated colleges, though nothing suggests enforced secrecy that shields institutions that they aren’t used by public universities from negative publicity, professional censure, and even oversight: non-disclosure/disparagement agreements 1 Jeremiah Poff, “Conservative Professor Says and mandatory arbitration. Baptist Seminary Used COVID as an Excuse to Get Rid of Him,” The College Fix, 26 May 2020. American Association of University Professors, “Say No to NDAs and Forced Arbitration in Higher Education,” 7 September 2018. 1 1 2 as well. Apparently, “higher education Scholars must understand what institutions that pursue unique missions can is taking place. They need to also be susceptible to unique governance defend their profession and pitfalls.”3 sound the alarm so the public This battle involves more than academic understands what is at stake. freedom. It concerns the power to take control of entire universities and leverage The process goes something like this: the legal system to eliminate whoever is in Universities can terminate professors (with the way. Scholars must understand what is or without tenure) without warning, instantly taking place. They need to defend their cutting them off from their livelihood and profession and sound the alarm so the the grievance procedures and oversight public understands what is at stake. Shared bodies of the university. If the professor governance, the voices of faculty and renounces their legal claims, waiving faculty assemblies, and effective oversight statutory and constitutional rights, and by governing boards are also endangered. promises silence, then the university may Even the constitutional integrity of the temporarily restore salary as “hush judiciary itself is potentially undermined. 4 money.” This insulates administrators from accountability, for both the termination itself and any other ethical or political Non-Disclosure/Disparagement issues leading to the dismissal. It inverts Agreements the law itself into an instrument of extortion. Non-disclosure agreements (NDAs) may The professor becomes legally punishable serve legitimate business purposes. for disclosing the institution’s contractual Non-disparagement agreements (not breach. Colleagues, students, prospective always the same thing) are inherently students, and faculty are all kept in the dark unethical, at least in academia, because about it happening. Even oversight bodies ipso facto they violate academic freedom charged with ensuring the institution’s and conceal other ethical violations. integrity—faculty senates, accreditors, and the institution’s own governing boards—can be kept unaware of their use.5 2 The use of NDAs at public universities are rarely publicized, making them hard to track. The most effective recourse to politically Purdue University Global attracted negative publicity in 2018 for a broadly written motivated dismissals—going to the press to nondisclosure agreement that it required faculty draw public attention—is precisely what the members to sign. Goldie Blumenstyk, “Do Corporate-Style NDAs Have a Place in Higher NDA forbids. Ed?,” The Chronicle of Higher Education, 4 September 2018. 4 Poff, “Conservative Professor Says…” 3 Christian Barnard, “Liberty University: A 5 Lawrence Fuqua, “SBTS Trustee Sees Serious Cautionary Tale,” James G. Martin Center for Problems at Al Mohler’s Seminary,” Capstone Academic Renewal, 25 October 2019. Report, 29 November 2020. 2 2 Like any restriction on freedom of creating “a culture of fear where people are 6 expression, the scope of an NDA is unclear unable to speak out.” Buried in Politico’s and broad enough to scare professors prurient accounts is the revelation that away from even publishing academic Liberty uses “non-disclosure agreements articles on the topic. A professional article that stop current and former staff and on NDAs written by a professor who signed board members from discussing sensitive an NDA could potentially open them up to matters” (emphasis added).7 legal action, as could publicly defending their own integrity and reputation. Multiple dismissals of conservative professors at two important Baptist The only possible purpose for university theological seminaries, allegedly for their administrators to demand a professor sign dissent on the institution promoting leftist an NDA in an academic setting is to hide theories of sexuality, race, and “social suspicious conduct by administrators, justice,” were likewise accompanied by 8 especially surrounding a dismissal. Thus, NDAs. A conservative professor fired from NDAs invariably prohibit divulging their own a prominent theological seminary for similar existence. One actual non-disparagement reasons was given a severance package agreement, used by Patrick Henry College combined with an NDA, though he cannot (a non-denominational Christian institution), discuss the case, which is precisely the reads: purpose. Another refused to sign but is reluctant to talk because his case is ● Dr. [X] agrees that he will not covered by mandatory arbitration disclose the terms of this agreement (discussed below). at any time to anyone. ● Dr. [X] agrees that he will not at any “I am appalled by Evangelical Christian use time disparage [the College], its of Non-Disclosure Agreements to prevent affiliates or related organizations, directors, officers, employees, or 6 students in any way. Barnard, “Liberty University...” 7 Brandon Ambrosino, “‘Someone’s Gotta Tell ● Dr. [X] that he will not initiate the Freakin’ Truth’: Jerry Falwell’s Aides Break Their Silence,” Politico, 9 September 2019. communication in any fashion at any Maggie Severns et al., “‘They All Got Careless’: time with anyone directly or How Falwell Kept His Grip on Liberty Amid indirectly associated with any Sexual ‘Games,’ Self-Dealing,” Politico, 1 accrediting agency. November 2020. 8 Robert Oscar Lopez, “COVID-19 Completes Liberal Takeover of Southern Baptist Convention,” American Thinker, 23 April 2020. As noted, such devices seem to have special appeal for Evangelical institutions. Lopez introduced a resolution at the Southern Baptist Convention condemning NDAs as Even before President Jerry Falwell Jr.’s unethical, shortly before himself being fired from recent disgrace, Liberty University was Southwestern Baptist Theological Seminary, allegedly for his stance on homosexual politics. criticized for using NDAs to silence Robert Oscar Lopez, “Liberty’s Future is dissenting faculty and even trustees and Predictable, Based on the 2018 Paige Patterson Case,” 23 April 2019. 3 3 further discussion of concerns,” Robert Second, business executives who do not Gagnon of Houston Baptist University understand academic ethics often run wrote. “I expect this of left-wing ‘liberal’ conservative institutions and assume NDAs denominational structures, not Evangelical can serve legitimate purposes, as they do institutions.” He continued: in the business world. One college president, also a corporate executive, told It gives the appearance of being the author that “Separation hush money. A professor who has agreements…are common in the served faithfully for…years should employment world, both for businesses and not be forced to muzzle himself and non-profits,” after firing a professor who violate conscience as a condition for could have told him why it is not equivalent. receiving even a couple of months of salary.9 These institutions also mostly lack tenure because they want the (perfectly legitimate) Tom Rush, a trustee at Southern Baptist option of dismissing faculty who deviate Theological Seminary, went on record from the institution’s religious principles. recently saying that “this contract was But this habit can serve the il-legitimate unethical” and that “it was hush money to purpose of punishing healthy dissent and keep them [fired professors] quiet.” Rush constructive criticism and protecting pointed out that “They allegedly were being administrators’ arbitrary power

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