On October 22nd, 2012, Prof. Loretta Capeheart gave an invited presentation to the faculty, students, and staff of the University of Vermont. Three weeks before, the faculty union of the University of Vermont, United Academics AAUP/AFT, approved a resolution in support of Dr. Capeheart (which can be found here).
The title of Prof. Capeheart’s presentation was Shut Up and Teach!: Using the Courts to Suppress Free Speech, Academic Freedom, and Shared Governance. She explained the implications of Northeastern Illinois University’s (NEIU) administration using the Garcetti v. Ceballos decision to attempt to shut down faculty speech on university campuses.
As Dr. Capeheart explained, this argument exposes the intent of NEIU’s administration to control all speech uttered in pursuit of a faculty member’s “official duties” including research, service, and teaching. In Dr. Capeheart’s case, the university administration even stretched her “official duties” to include her anti-war activism.
Capeheart further illustrated the continued attacks on free speech made by the university administration in their state court claims. According to these distorted claims, it was the professor who attempted to silence a NEIU’s Vice President by defending herself in court against the slanderous speech that the Vice President hurled at her. Adding this argument to the oppressive attitude that faculty can be punished for anything that they say while teaching, conducting research, or in service is incredibly frightening. This leaves faculty members with no rights to even defend themselves against the damaging speech of an administrator.
Attendees expressed their outrage over these attempts at silencing faculty. A union member equated these tactics with the ongoing attacks on WalMart workers who are attempting to gain basic rights at work. A student in the audience expressed concern for the corporatization of campuses, which reduces faculty rights while increasing the cost of education to students. Faculty present were not sure that their administration would take such an open fight for dominance over their speech, but were concerned for the precedent set by NEIU which could cause fear and self-censorship, especially among non-tenured faculty.
It was agreed that the fight for academic freedom and free speech has reached a crossroads in higher education. Just as the Chicago Teacher’s Union is fighting for the soul of public education, faculty on college and university campuses must fight for our own rights in order to protect our profession, higher education, and democracy.
The power point slides for this presentation are available here
At the end of August the 7th Circuit of the Federal Court of Appeals issued its decision on the case of Prof. Loretta Capeheart v. NEIU president, Sharon Hahs et al. The Court vacated NEIU’s claim that under the precedent of the U.S. Supreme Case Garcetti v. Ceballos, “NEIU could legally punish a professor who advised student activists by deeming her own statements of protest to be job-related.” (The Chronicle of Higher Education, August 11, 2011)
In order to get to this point, NEIU had spent hundreds of thousands of dollars in legal fees, and insurance premiums and deductibles. This case first went to the district federal court on March 2008. After the first year of the case, NEIU switched its legal defense from that provided by the Office of the State Attorney General of Illinois to an expensive, high-powered private law firm, Franczek Radelet P.C. Documents provided by NEIU in response to a freedom of information act (FOIA) request reveal that in the first year that Franczek Radelet handled the case (May 2009 to May 2010) it billed NEIU $435,000.
After the district federal court dismissed Prof. Capeheart’s case in February 2011, on the basis that Garcetti v. Ceballos applied in her case, Prof. Capeheart filed an appeal with the 7th Circuit Federal Court of Appeals. On December 2011, the federal justices heard the case. It is not far fetched that by this time, a year and a half since May 2010, the additional fees billed by Franczek Radelet would stack up to several hundreds of thousands of dollars. Over half a million dollars frittered away to have the appeals court state the obvious, that NEIU cannot punish Prof. Capeheart for her free speech.
In that same decision, the 7th Court dismissed Prof. Capeheart’s claims that her civil rights were violated, not because her case lacked merit but because the court decided that her case was “unripe.” This means that the court found that there were a number of troubling actions by the NEIU administration, but that they had not reached the levels that the court would consider enough to trigger their action. One can argue about the consistency of this argument, however one thing is clear, the justices put NEIU’s administration on notice:
“We are concerned about her speech being chilled… In sum, we recognize that Capeheart’s retaliation claims are serious, and our intention is not to belittle them.” (Loretta Capeheart v. Melvin C. Terrell, et al., No. 11-1473)
NEIU turns the Citizen Participation Act upside down: “give me $88,000”
In March 2011, Prof. Capeheart filed a state court suit claiming defamation by NEIU’s former VP Melvin Terrell, violation of her free speech, and retaliation. In response, NEIU’s legal team decided to follow an approach similar that which it pursued with its Garcetti strategy, go for an outright denial of Prof. Capeheart’s rights—and those of every Illinois citizen. It filed a counterclaim that demanded that Prof. Capeheart’s defamation case be dismissed for violating Terrell’s (and thus NEIU’s) “right to participate in government,” under the protection of the Citizen Participation Act (CPA). The CPA was enacted in 2007 to protect individual citizens against free speech-chilling lawsuits frivolously brought by corporations and powerful institution. NEIU claimed that VP Terrell was the vulnerable citizen and Prof. Capeheart the powerful interest. In an incongruous decision this past June, Judge Randye Kogan agreed with NEIU and proceeded to award it the right to exact its legal fees in this case. NEIU claimed $88,000 in legal expenses, which even Judge Kogan found to be disproportionate:
“Look at the kind of hours here. I’m not in any way saying that you’re not worth the fees that you’ve charged or that you didn’t spend lots of time on it. But the law requires reasonable attorney fees…So I’m not questioning what you billed to the state, but I certainly am questioning what is reasonable…Paying of the fees does not make it reasonable. Paying of the fees means that your client, the taxpayers of the State of Illinois, felt that that was appropriate for them to pay. But that does not make it a reasonable fee.” (Court transcripts)
Judge Kogan proceeded to lower the allowed legal fees to just under $10,000. A few weeks later Prof. Capeheart filed an appeal with the State Court of Appeals, which was met with a “cross-appeal” by NEIU demanding the $88,000 again.
The odds that Prof. Capeheart will win this appeal are significant after two Illinois Supreme Court decisions this year undermined NEIU’s claim. Once again NEIU is spending hundreds of thousands of dollars in another immoral, and potentially doomed, quest to deny Prof. Capeheart of her academic freedom, free speech, and all Illinois citizens of their right to petition the government.
Professor Loretta Capeheart, a longstanding activist and trade unionist, is locked in a protracted struggle with her employer, Northeastern Illinois University (NEIU) in Chicago. This case has wide ramifications for academic free speech and workplace rights across the country. The campaign is now at a crucial stage as she awaits the outcome of a decision by the Seventh Circuit Court of Appeals. Depending on the decision, the case could go all the way to the US Supreme Court.
What is This Case About?
Capeheart is a 10‐year tenured professor at NEIU and a respected union and community activist. NEIU administrators have systematically targeted her for years for her activism, engaging in a campaign of slander against her, denying her a department chair position and earned merit pay increases.
In Capeheart v. Hahs et al, a federal judge concluded that Capeheart could be punished for anti-war activism because she advised a student club. The court ruled that teachers at public universities have no right to free speech under the Supreme Court’s 2006 decision Garcetti v. Ceballos.
Capeheart has appealed this decision and the case that currently stands before the Seventh Circuit Court of Appeals, which will either reject the new limits on free speech set by the lower courts, or further establish them.
Part of the NEIU administration’s strategy is to bankrupt Loretta and intimidate anyone else who dares to stand up to them. Loretta has already been forced to spend nearly $100,000 in legal fees which has put her and her family under enormous financial strain.
Now Another Dangerous Precedent
On June 19, 2012, in another dangerous precedent, Cook County Judge Randye Kogan granted NEIU and its Vice President Melvin Terrell immunity under the Illinois Citizen Participation Act (CPA). Unless overturned on appeal, this ruling will make Professor Capeheart liable for the university’s legal tab in addition to her own legal expenses.
The CPA was a piece of legislation fought for and won by consumer advocates in order to protect citizens who speak out publicly against powerful corporate and governmental interests. Now this latest ruling in Loretta’s case turns the original intention of the CPA on its head by granting immunity to a powerful interest and leveling a terrible penalty on a citizen for speaking out.
The precedent set for other citizen activists in Illinois is chilling: Namely, any individual who speaks out against a large corporate or governmental entity in Illinois could potentially be sued for slander and held liable for the corporation or government’s legal tab. This decision could also have a legal impact in other states that have passed or are considering consumer protection legislation like the CPA.
We cannot let these precedents stand. The Justice for Loretta Capeheart Campaign has been created to win solidarity for her struggle, encourage financial support, explain the political ramifications of Loretta’s case and put pressure on NEIU’s administration to end their assault on Loretta and academic freedom more generally.
What You Can Do
We need everybody’s help to win this critical fight: Download and circulate the newly penned Appeal Letter on this website, signed by a long list of supporters, including Noam Chomsky, Michael Ratner, The Coalition Against the Corporatization of Higher Education and many more. Donate to the campaign. Circulate this website far and wide through social media and other means. Pass resolutions in your union and community group in support of Professor Capeheart (see other resolutions that have passed around the country on this website). Submit versions of our Appeal Letter to print and online publications, campus press, local, or national; invite Professor Capeheart to speak at a forum on Academic Freedom and the Corporatization of Universities sponsored by your department, faculty union or student senate with funding. Join the national organizing list email us at email@example.com.
Read text of resolution passed by AFT Local 1600, Chicago IL here.
On June 19, 2012 attorneys working under the direction of Northeastern Illinois University (NEIU) extracted from Cook County Judge Randye Kogan a decision granting their VP Melvin Terrell and the university immunity from defamation claims using the Illinois Citizen Participation Act (CPA). The act was meant to protect citizens from being sued by powerful interests for speaking out in public forums. This ruling stands the CPA on its head granting immunity to a powerful interest in attacks on a citizen in response to her voicing an opinion on an issue of public concern. This ruling is very dangerous—it could effect whistleblowers, individuals standing up to big corporations, and free speech fights of all kinds. SIGN and SHARE the NEW PETITION!
June 20, 2012 press conference statements
- Loretta Capeheart, Prof, Northeastern Illinois Univ.
- Richard Hallett, Dept. of Linguistics, Northeastern Illinois Univ
- Russell Benjamin, Dept. of Political Science, Northeastern Illinois Univ
- Brett Stockdill, Dept. of Sociology, African and African American Studies, Latino and Latin American Studies, and Women’s Studies, Northeastern Illinois Univ
- Tim Libretti, Dept. of English, Northeastern Illinois Univ
FOR IMMEDIATE RELEASE:
CHICAGO, Illinois (June 14, 2012) – The campaign in support of Professor Loretta Capeheart will hold a press conference at the northeast entrance of the Daley Center (50 West Washington), on June 20, 2012, at 10:00 AM. It will address the state court decision that Judge Randye Kogan is expected to issue on June 19, 2012 regarding the defamation lawsuit that Dr. Capeheart filed against Northeastern Illinois University (NEIU).
Prof. Capeheart’s case has gained national attention. The Nation’s sports editor Dave Zirin recently wrote about her case. The faculty union at Rutgers University passed a resolution supporting her and approved financial assistance to cover her legal expenses. The faculty senates at the University of Texas-Austin and Harper College have also approved resolutions in her support. Among many signing on as supporters of Dr. Capeheart are: Michael Ratner, President of the Center for Constitutional Rights, Jesse Sharkey, Vice President, Chicago Teachers Union, Bill Ayers, Distinguished Professor (retired) University of Illinois at Chicago.
Judge Kogan is expected to issue a decision regarding the claims of NEIU that its former VP Melvin Terrell had immunity to publicly slander Prof. Capeheart, according to the statutes of the Illinois Citizens Participation Act (ICPA). The ICPA was enacted to protect individual citizens from being sued by powerful interests who intend to use the courts to prevent these citizens from engaging in public discourse and actions that are in disagreement with these interests. In an unusual twist of the ICPA, NEIU claims that it is Prof. Capeheart who is the equivalent of the powerful interest who is preventing VP Terrell and thus “government from participating in government,” according to NEIU’s attorney Pete Land.
In 2008, Prof. Capeheart filed a lawsuit in federal court claiming defamation and suppression of her freedom of speech by NEIU President Sharon Hahs, former Provost Larry Frank, and former VP Melvin Terrell. In her claim, Dr. Capeheart argued that VP Terrell had slandered her in a public NEIU meeting, falsely accusing her of having had stalking charges filed against her by a student, and that NEIU officials had retaliated against her for her public stances regarding the Iraq war, the hiring of Latino faculty, etc. The federal case is now in the Seventh Circuit Federal Court of Appeals, pending a decision that could come out at any time.
The federal appeals court is supposed to decide on the validity of NEIU’s argument that anything that Dr. Capeheart says or does while she is at the NEIU campus is part of her duties as a professor, and that therefore the administration has the right to limit her freedom of speech to fit its policies. Thus this case has implications for all government employees, not only academics.
On the day of the press conference, these issues will be addressed by invited speakers including: Professor Capeheart, academic freedom activists, labor, student and community leaders, and representatives from the Occupy Chicago movement. For more information about her case, please consult the website of the Justice for Loretta Capeheart Campaign at justice4loretta.com.
Prof. Michael J. Harkins, President Illinois AAUP firstname.lastname@example.org
On May 13, 2012, the faculty senate at Harper College passed a resolution in support of Loretta Capeheart. Download a copy of the resolution here.
The faculty union at Rutgers (AAUP-AFT (Rutgers) approved a resolution to support Loretta’s case. The union also voted to contribute $5000 to Loretta’s legal defense fund. If you are a union member,consider using the Rutgers resolution as sample for your own local. DOWNLOAD IT HERE.