Professor Loretta Capeheart Resists the New McCarthyism at Northeastern Illinois University

Shut Up and Teach!*

The Perversion of
Free Speech on Campus

For more than four years, I have attempted to set the record straight after a Vice President on my campus, Northeastern Illinois University (NEIU) made a slanderous accusation against me in a faculty meeting.  This remark followed years of his staff’s harassment and surveillance of anti-war activists on the campus.  When this particular VP, Melvin Terrell who headed up Student Affairs and campus safety stated that I was being investigated by the campus police for stalking a student, I was horrified, shocked, and stunned into silence.  This silence, I was told by colleagues, was the goal of the accusation.  It worked. I stopped asking questions about the arrests of peaceful students.  I was distraught and distracted by the accusation.

The slanderous remarks were personally disturbing because of the implications on my character and my career, but also for the crime itself.  I do not want to get into my own personal experiences, but suffice it to say that a woman with my personal history is well aware of the horrors and realities of felony sex crimes such as stalking.

Mr. Terrell, having written on this topic and overseeing the campus police is well aware of the legal implications.  Among those implications are, not only serious criminal prosecution, but certain career damage.  While I am tenured, there are several behaviors that can result in the revocation of that tenure.  Criminal behavior is among those.  As the record still stands, there has been no retraction of the statement.  Any future potential employer or other person needing to check my history would be left to believe that the accusation by Terrell was true.  It was not.  This has been clearly established in the court documents, though still not acknowledged by the NEIU administration.

I have never stalked anyone, let alone a student.  But, as a justice studies scholar, I am keenly aware of the damage that false accusations can do to a person’s career, life, and reputation.  I tried for one year to deal with this slander on campus asking only that Terrell admit that his statement was false and apologize.  But the administration was not interested in clearing the lie or dealing with the slanderer.  Instead, they were, in my view, interested in using the momentum created by this trauma to further damage my career and reputation.  In 2008, as the one year statute of limitations approached, I 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.

While the case contains specifics related to the damage inflicted upon me by the NEIU administration, I want to focus on the broader issues that have thus far kept this case out of court.  These broader issues affect not only me, but 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.

*Inspired by the Dixie Chicks
documenetary, Shut Up and Sing!

I believe that I have the right to do the things that I did at NEIU.  These things included:  voicing support for such controversial issues as increasing Latino/a faculty on our (“Hispanic Serving”) campus, supporting students’ rights to peacefully protest, and to participate in anti-war events.  But, I found instead that the university has singled me out for criticism, blame, and even threats of arrest on multiple occasions.  The slanderous remarks by Mr. Terrell were among these abuses, and were, to me, the most disturbing.

This slander and criticism did not stop with words, but resulted in not appointing me as chair of my department after I was elected to that position and not awarding me an excellence award with contradictory and flimsy reasoning among other punishments. Because of this, I believe that I am due a day in court so that a jury may decide what, if any, damages have been inflicted and what, if any, reparations are owed.  But, the university is determined to not allow me that day in court.

They are arguing three major points to keep my case from court:

1)  I 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, in my view, 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 my 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.  If the law protects those with power from answering for their own behavior, how is one to hold administrators accountable?  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).  But, for an administration that has put itself above the U.S.  Constitution in limiting free speech, rising above state governors to gain immunity is a small task.

3)  If I persist in defending myself and my right to free speech, the university will force me to pay for the university’s legal expenses. In a brazenly bizarre twist on reality, the university is asserting that my claim against Terrell for his slander against me 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 act and similar legislation are known generally as anti-SLAPP laws. These laws (with support from the ACLU and other free speech and civil liberties supporters) are meant to protect someone like me 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 my slander claim against VP Terrell is intended to prevent his participation.  The heavy handed threat is that, should they prevail in this depraved argument, I will owe the university tens to hundreds of thousands of dollars, the exact amount to be argued later, at my expense.

Any one of the three arguments offered by the NEIU administration 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.  They seem to reflect cravings for a totalitarian regime.  What better way to keep a population in check than to take away their rights to challenge any and all policies and procedures, give your henchmen immunity to say and do as they please, and then deliver the final blow that any who dare complain will pay not only with their reputations and careers, but with all of their worldly possessions as well.

I’ll admit, I’ve lost countless nights of sleep over these years of battle.  But, what keeps me going is the stakes.  I once heard a remark that the battles in academia are so fierce because the stakes are so low.  Were that the case here, the battle would
have never begun.  Here the stakes are so high that giving up seems a betrayal not only of my own integrity, but that ofmy profession, colleagues, public employees, and so many others.  Not the least of which is my young nephew who died in Iraq in 2005 and whose memory has driven much of my anti-war work.  While I do not believe that he was fighting for his country or for our liberties and freedoms, he did.  How then, can I give up this battle for free speech for fear of losing everything short of my life?

While the university administration claims to be good stewards of university resources (tax payer and student tuition dollars), this appears a case where stewardship is lacking. While I do not know how much the university has spent attempting to silence criticism, I know what I have spent. Therefore, I am pretty sure that the university has spent hundreds of thousands of dollars.  And what have they gained?  They didn’t have to say “I was wrong, sorry” and they kept me from positions and awards. Good investment?  When you consider that they might get to set up their totalitarian regime, maybe.

Sharon Hahs, NEIU president, claims to respect the American Association of University Professors (AAUP) and their statements on academic freedom and free speech.  Yet, she conveniently ignores the fact that the AAUP has supported my case with a legal defense fund grant and filed an amicus brief on my behalf with the Seventh Circuit court of appeals.  Instead, she continues her fight to be crowned sovereign.  The federal appeals court will hear oral arguments in this case on December 8, 2011, 9:30 a.m. to 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.  But, the struggle will not end there.

Loretta Capeheart is an Associate Professor of Justice Studies at Northeastern Illinois University.  If you would like to support her case, please attend the upcoming oral arguments.  Questions may be directed to Loretta at L.Capeheart@gmail.com.  If you prefer to offer financial support, contributions may be sent to to her attorney:  Tom Rosenwein, Glickman, Flesch & Rosenwein, 230 West Monroe Street, Suite 800 Chicago, Illinois 60606.

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