End use of nondisparagement clauses in academia (opinion)

Gag orders on college campuses are all the rage right now, as Republican legislators seek to ban the discussion of critical race theory and other “divisive concepts” that offend conservative sensibilities. A new PEN America report, “America’s Censored Classrooms,” identified 137 educational gag bills introduced so far in 2022, compared to 54 in 2021, which marked a dramatic increase from previous years.

While these external attempts at censorship make headlines for the dire threat to academic freedom they pose, few academics are aware of the gag orders imposed by colleges themselves.

The recent settlement between Ferris State University, in Michigan, and Barry Mehler, a professor who was suspended earlier this year for sending students a video that referred to them (jokingly) as “cocksuckers” and “vectors of disease,” raises important questions about academic freedom in the classroom. But the March settlement between Ferris State and Mehler, paying him $95,000 to retire immediately with emeritus status, also raises other important questions about academic freedom because of its nondisparagement clause, a kind of gag order designed to silence criticism.

The settlement between Mehler and Ferris State, recently released after a public records request from the Associated Press, states, “For three years following the effective date of this Agreement, Dr. Mehler shall not, by oral or written expression or any other act of communication to any third party disparage, criticize, or impugn the reputation or character of FSU or any of its current or former Board of Trustees members, Board of Trustees, administrators, directors , other employees, agents and representatives, both individually and in their official capacities.”

It seems apparent that the nondisparagement clause was the demand of Ferris State, since the university is largely free to disparage Mehler and the agreement only states, “Likewise, FSU will instruct Dr. David Eisler and Dr. Randy Cagle”—respectively, FSU’s president and the dean of the College of Arts, Sciences and Education—“that they may not disparage Dr. Mehler.” Of course, this is hardly equivalent, since under the terms of the agreement neither FSU nor these two named senior administrators would suffer any penalty for disparaging Mehler. And while Mehler is banned from criticizing in any way the institution of FSU and all of its employees and trustees, no similar restriction exists to protect Mehler from anyone except two administrators who are probably happy to have a legal excuse not to talk about Mehler anyway.

These kinds of gag orders may be common in corporate America, but they should raise red flags for anyone in academia. The right to criticize is the essence of academic freedom. Academic freedom must include the right of professors (including emeritus professors) to criticize governments, ideologies, esteemed colleagues and even one’s own university. A university that seeks to ban criticism of itself is violating a core value that any college must protect and denying the right of anyone on campus (and the public) to hear those critiques. And a university that enforces a nondisparagement clause on its employees is endangering academic freedom.

The settlement between Mehler and Ferris State also includes forced speech, since it requires both sides to say that they have “amicably resolved their differences” or similar words, if asked. In fact, FSU tried to keep the terms of the settlement agreement secret by including a provision that everything in it is “confidential and shall not be divulged to any third party” save Mehler’s “spouse, tax or adviser, or attorney.” It is even a violation of the agreement for Mehler (or the faculty union) to “encourage” anyone to FOIA the agreement. The agreement specifies that if Mehler violates the nondisclosure or confidentiality clauses of the settlement, he must pay Ferris State $60,000.

In three years, Mehler will be free to criticize Ferris State again, but he will be permanently prohibited from discussing the agreement and how it was used to silence him. However, the impact of nondisparagement agreements goes far beyond one aggrieved professor. These attacks on transparency have a chilling effect on the entire campus and send a signal that criticism of the administration is something to be discouraged or punished.

Ferris State is far from the only public university using nondisparagement clauses to keep information secret from the public. In July, Under Armour agreed to pay the University of California, Los Angeles, $67.5 million for terminating an athletics sponsorship deal, and the settlement parties included a nondisparagement clause that is binding on both. The settlement agreement bans both parties from making “any disparaging, negative, or uncomplimentary statements, whether public or private” about each other. While the agreement exempts students and employees other than top management at UCLA, it still prohibits UCLA’s leadership from ever discussing—even internally—the problems with the Under Armor agreement.

Interestingly, the nondisparagement clause is the only provision of the settlement that explicitly states a violation of the clause does not terminate the agreement, and there is no penalty for doing so. This suggests that the real purpose of the clause is to give UCLA administrators a legal excuse to avoid answering tough questions about the sponsorship and what went wrong. And even if Under Armor had demanded the nondisparagement clause as a condition of this agreement, there is no reason why UCLA should have compelled Under Armor to refrain from making “uncomplimentary statements” about the university.

There is a growing trend to ban nondisparagement clauses because of the threat they pose to free speech and the right of the public to know about discrimination, harassment and other forms of wrongdoing. In June, the state of Washington’s Silenced No More Act went into effect, following similar laws in New York and California. Washington’s law declares that any contract or settlement restricting discussion of “illegal discrimination illegal, harassment, illegal retaliation, a and hour violation, or sexual assault, or that is recognized as wage against a clear mandate of public policy, is void and unenforceable.”

In July, US senators introduced the Speak Out Act, a bipartisan bill in Congress targeting nondisclosure agreements silencing workers who blow the whistle on sexual harassment and assault in the workplace.

Nondisparagement clauses are even worse than nondisclosure agreements, since they explicitly target criticism and therefore add viewpoint discrimination to the suppression of free speech found in NDAs. While NDAs can sometimes be justified to protect confidential information, nondisparagement clauses have no such basis.

As we fight the Republican gag orders that try to silence free speech from the outside, we should also speak out against the internal gag orders that impose universities. It’s time for all universities, public and private, to adopt policies that prohibit the use of nondisparagement clauses in any legal agreements. No university should silence criticism by its faculty and staff. No university should ever demand not to be criticized. We need to prohibit administrators from using nondisparagement clauses as a tool for censorship.

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