‘Scholastic Gag Orders’
Non-disparagement agreements and mandatory arbitration clauses are being increasingly used, most notably by private Christian colleges, as a cudgel to silence controversial professors and force them to leave campus quietly, according to a new policy paper.
Retired professor and author Stephen Baskerville writes in a January 2021 policy paper for the James G. Martin Center for Academic Renewal that such “mechanisms enable institutions to conceal unethical conduct that would bring public condemnation upon them.”
“Both conservatives and liberals consider their use unethical because they protect administrators from legal liability and criticism while leaving scholars in legal jeopardy and possibly even at risk of criminal punishments,” the paper argues.
It is titled: “Scholastic Gag Orders: NDAs, Mandatory Arbitration, and the Legal Threat to
Baskerville, in an email to The College Fix, said that “these devices are for airbrushing politically incorrect or critical professors into invisibility by dismissing them without warning and then immediately gagging them on pain of severe judicial punishment.”
He said colleges use such measures for many different reasons, including to “conceal unethical practices by college administrations from the public” or to “allow administrations to violate academic freedom and dismiss faculty.”
They also place the onus on faculty to call out campus issues to the public’s attention, meaning the scholar is at risk of a pile of legal fees.
Baskerville’s policy paper argues more and more colleges and universities across the nation use these methods to silence professors, when that was not the original intent of the clauses.
“More than academic freedom is threatened,” Baskerville writes in a summary of his paper. “The public judiciary is used to enforce institutional takeovers. Not only are shared governance, faculty assemblies, and oversight by governing boards compromised, but freedom of expression and even judicial integrity.”
Mandatory arbitration clauses force people in contract conflicts to settle disputes without going to court, and instead to use an arbitrator. When signing these clauses, professors waive their right to appeal any decisions made by an arbitrator. Although they were initially legalized to help businesses, mandatory arbitration clauses are now being used to silence professors, Baskerville argues.
“Arbitrators can even issue restraining orders that carry criminal penalties. This constitutionally questionable tool allows a personalized criminal code to be legislated around a legally innocent individual, imposing criminal punishments for doing what no statute prohibits and what anyone else may do,” his policy paper states.
Jenna Robinson, president of the Martin Center, said she believes that this is an important issue for higher education because mandatory arbitration clauses are “a method of suppressing free speech that’s flying under the radar right now.”
“Anyone who cares about free speech should research [them],” she said.
Baskerville warns in his paper that private Christian colleges are especially abusing these measures currently.
“Multiple dismissals of conservative professors at two important Baptist theological seminaries, allegedly for their dissent on the institution promoting leftist theories of sexuality, race, and ‘social justice,’ were likewise accompanied by NDAs,” it states.
“A conservative professor fired from a prominent theological seminary for similar reasons was given a severance package combined with an NDA, though he cannot discuss the case, which is precisely the purpose. Another refused to sign but is reluctant to talk because his case is covered by mandatory arbitration.”
The policy paper also cites a May 2020 article by The College Fix headlined: “Conservative professor says Baptist seminary used COVID as an excuse to get rid of him.”
Writing for National Review, education expert George Leef said the issues spelled out in the policy paper should be addressed, as “both academic freedom and shared governance are undermined.”