Professor Capeheart Continues Battle for Academic Freedom Against Garcetti v Ceballos: The Academic Dred Scott v Sandford Case

Oral arguments in Academic Free Speech case supported by the AAUP legal defense fund and Amicus Brief to be heard Thursday December 8 at 9:30 a.m. in Chicago at the Federal Courthouse at 219 S. Dearborn, courtroom on the 27th floor.

For years, Loretta Capeheart has attempted to defend the free speech rights of faculty.  She became the target of a nasty campaign against her by the Northeastern Illinois University (NEIU) administration after speaking to defend peaceful students arrested for protesting the CIA, in defense of Latino/a faculty, and other important issues of public concern.  In response to retaliation against her for these activities, Associate Professor of Justice Capeheart filed a federal claim (Case 1:08-cv-01423, Federal District Court Northern IL).

The ensuing years of pre-trial filings have been a study in modern anti-free speech perversions. The issues central to this case affect faculty, staff, and public employees generally.  They also impact the very nature of the university and threaten to annihilate all notions of shared governance, academic freedom, and debate.

NEIU is arguing three major points to keep Doctor Capeheart from having her day in court:

1) Faculty have no right to free speech.  This claim is brought because of the infamous Garcetti v. Ceballos (2009) decision which found that an employee of a Sherriff’s office was not within his rights when he criticized
practices in his workplace.  This decision is, is short sighted as it prevents employees with important information from having the capacity to speak about that information.  But, even in this case, the Supreme Court has held that this decision should not apply to university settings noting “in Pickering:  Teachers are … most likely to have informed and definite opinions …  Accordingly, it is essential that they be able to speak out freely … without fear…  391 U.S. at 572” (Capeheart v. Sharon K. Hahs, Lawrence P. Frank and Melvin C. Terrell, No. 11-1473, U.S. Court of Appeals for the Seventh Circuit, pg. 25). While the intention of the Court seems clear, this has not stopped universities from attempting to impose Garcetti and it has not stopped NEIU from having Capeheart’s case dismissed from federal court.

2)  Terrell and other university administrators have absolute immunity for their own speech. The claim that Terrell has sovereign immunity reminds one of the absolute powers of monarchs.  While the State itself may still have a claim to sovereign immunity, the individuals charged with keeping the faith of the citizens of that State are bound by the same laws and regulations as the rest of us.  This should be clear from the convictions of three former
Illinois Governors (Chicago Sun Times, Sept. 7, 2006).

3) If Capeheart persists in defending herself and our right to free speech, the university will force her to pay for the university’s legal expenses. In a brazenly bizarre twist on reality, the university is asserting that Capeheart violated the Illinois Citizen Participation Act (Capeheart v. Hahs et al. Cook County Court, No. 2011-L-002460).  The Illinois Citizen
Participation Act is meant to support public debate and discourse and prevent powerful organizations from filing slander suits against individuals who might be critical of their pursuits.  This is generally as anti-SLAPP legislation.  These laws (supported by the ACLU and others) are meant to protect someone like Capeheart from being sued for, for example,
criticizing the university’s policy on arresting peaceful students. The university has, however, turned the intention of this act on its head in order to claim that Capeheart’s is preventing their participation by defending herself.  Should they prevail in this argument, Capeheart may owe the university hundreds of thousands of dollars.

Any one of the arguments offered by NEIU is frightening, especially when made by an institution of higher learning which claims to be committed to values of academic freedom, excellence, and integrity. But, when taken together as a group, these arguments are beyond astounding.  Sharon Hahs, NEIU president, claims to respect the American Association of University Professors (AAUP) and their statements on academic freedom and free speech. Yet, Hahs conveniently ignores the fact that the AAUP has supported Capeheart’s case with a legal defense fund grant and filed an amicus brief on her behalf with the Seventh Circuit court of appeals. This federal appeals court will now decide if the case moves forward or if we all lose another round in the battle to retain the rights that so many have lived and died to protect.

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