IU professor says the university can’t fire him. He’s right. Here’s why.

The words “Fire Eric Rasmusen” were painted on an Indiana University bridge, but experts say the controversial professor’s job is likely safe.

Rasmusen, a tenured professor of business economics and public policy at the IU Kelley School of Business, came under fire recently for social media posts denigrating women, people of color and gay men.

IU officials said they’ve been flooded with demands for Rasmusen’s dismissal after one of his tweets, suggesting men were more intelligent than women and questioning the role of women in academia, went viral.

Rasmusen defended his views in a lengthy rebuttal posted to his personal website and said that if the university did try and fire him, “they’d lose in court.”

Provost Lauren Robel said in a letter posted to the IU website that Rasmusen would not be fired “for his posts as a private citizen, as vile and stupid as they are, because the First Amendment of the United States Constitution forbids us to do so.”

That’s exactly right, said Will Creeley, senior vice president of legal and public policy at the Foundation for Individual Rights in Education. FIRE is a nonpartisan, nonprofit organization that defends the rights of students and faculty members at America’s colleges and universities.

Creeley said “faculty outrage” cases are fairly common on college campuses but that there is clear legal precedent protecting the free speech rights of government employees – including professors at public universities.

Recent instances include a Rutgers University professor who caused an uproar after he wrote on Facebook that he hated white people and was resigning from the white race due to frustrations with gentrification in his Harlem neighborhood and a professor at California State University, Fresno who called Barbara Bush an “amazing racist” and war criminal and criticized mourners after the First Lady’s death.

Both kept their jobs and their universities issued statements citing the professors’ First Amendment rights.

“It can seem counter-intuitive for those who work for private employers,” Creeley said, “but over the last five decades the Supreme Court has recognized that when you work for the government, you don’t completely lose your First Amendment right to express yourself over matters of public concern.”

While Rasmusen does have tenure, IU officials have said it’s his First Amendment right, and not his tenure, that is at issue here. 

“While the tenure matter keeps coming up, it’s actually not something that keeps us from firing anyone,” said Chuck Carney, a university spokesperson. “Tenured faculty can be fired. This is purely a protected speech matter, not a tenure matter.”

According to IU’s faculty tenure policy, the program exists to help the university meet its responsibility to “attract and retain a faculty of outstanding quality.”

“To that end the University safeguards academic freedom and economic security by its policy of faculty tenure,” the policy states.

The policy does lay out the reasons for which a tenured faculty member can be dismissed: “incompetence, serious personal or professional misconduct or extraordinary financial exigencies of the school.”

This is fairly standard practice at colleges and universities across the country, said Michael Poliakoff, president of the American Council of Trustees and Alumni. Professors are usually hired in on a tenure-track contract and a decision made after a probationary period that’s usually six years, as is the case at IU.

“If that person has met all the criteria set by the institution, which typically include teaching, research and service, that person will be given an indefinite appointment that can only be terminated for very clear cause,” Poliakoff said.

At its best, he said, tenure gives faculty the security to pursue ambitious projects and take academic risks.

Too often, institutions fail to regularly check in with tenured faculty, Poliokoff said, to ensure they’re continuing to meet those expectations. ACTA advocates for institutions to do “post-tenure” performance reviews and most, including IU, have adopted some sort of post-tenure review policy.

There are some schools that don’t offer tenure and have moved toward long-term contracts, instead. Poliakoff said those institutions tend be at a competitive disadvantage, though, when it comes to attracting faculty.

Tenure is designed, at least in part Poliakoff said, to protect people with views on the margins who otherwise might be pushed out by their peers with differing, more mainstream opinions.

He said that IU did the right thing in Rasmusen’s case, defending the professor’s right to free speech while condemning what he said.

“By protecting the First Amendment rights of an individual,” he said, “we don’t give up our own.”