Loretta Capeheart's Struggle for Academic Freedom
"I was shocked and stunned into silence," said Capeheart. The slanderous allegations were completely unfounded, but were serious enough that she feared they could damage her reputation. Later, then-NEIU Provost Lawrence Frank told her a student aide in Terrell's office had "misidentified" her in a complaint that was in fact withdrawn two days after the Vice President's defamatory outburst.The administration subsequently denied Capeheart a merit raise and a faculty excellence award for which she was recommended and eminently qualified. Even more troubling, when Capeheart's colleagues elected her to serve as department chair, the administration refused to let her assume the position and ultimately put her department into receivership.
Initially, Capeheart chose to combat this pattern of abuse via the NEIU's internal grievance procedure. Eventually, though, she decided to sue the school's administration in federal court for defamation (the bogus "stalking" claim) and for retaliating against her for speech protected by First Amendment. That is when things went from bad to worse.
NEIU's lawyers responded to the Capeheart's lawsuit by invoking the Supreme Court's 2006 decision in Garcetti v. Ceballos to claim that her criticisms of the university administration were not covered by the First Amendment. In Garcetti, the Court ruled that expression by public employees "pursuant to official duties" is unprotected by constitutional free speech rights. Even though the original Garcetti decision explicitly exempted professors at public universities, the federal district court for Northern Illinois accepted wholesale NEIU's reasoning and in February 2011 threw out Capeheart's suit on the grounds that the speech that got her into trouble with her administration was part of her official responsibilities as a member of faculty.
The district court's ruling potentially imperiled the academic freedom of faculty at all public colleges and universities. As the AAUP put it at the time, "the message of the district court's ruling is chilling and clear: university administrators need not tolerate outspoken faculty dissent on matters of broad public concern or on the university's institutional response to those concerns." With the backing of a $5,000 grant and a friend-of-the-court brief from the national AAUP, Capeheart made the difficult decision to take the case to the 7th Circuit Court of Appeals, despite the fact that she was already $100,000 in debt. At the same time, she and her lawyers decided to file a state defamation claim in Cook County Court.
Unbelievably, on June 19th, 2012, Cook County Judge Randye Kogan granted NEIU and Terrell immunity from Capeheart's defamation suit under provisions of the Illinois Citizen Participation Act (CPA). The CPA was passed to prevent corrupt government officials and wealthy corporations from using nuisance lawsuits - sometimes called Strategic Lawsuits Against Public Participation (SLAPPs) - to discourage ordinary citizens from speaking out about abuses of power. Perversely, Kogan's decision turned the CPA on its head, framing Capeheart as the powerful interest supposedly interfering with Vice President Terrell's ability to "participate in government" by means of her defamation lawsuit. In the process, yet another dangerous precedent - this one limiting the free speech rights of all Illinois citizens - had been set.
To make matters worse, because the court found that Capeheart's suit violates the CPA, she is now liable to pay NEIU's legal expenses related to the state lawsuit - according to NEIU's estimate, some $88,000.
Finally, Some Good News
On August 29, 2012, the 7th Circuit Court of Appeals vacated the district court ruling invoking Garcetti on the grounds that the case was "unripe" at the time it was brought and that Capeheart's claim of retaliation by the administration was "too speculative." While this outcome was a setback for Capeheart and her original case, it did nullify the district court's disastrous application of Garcetti to faculty speech.
Capeheart and her supporters are now pursuing an appeal of the Cook County ruling that struck down her state defamation case. They expect NEIU to spend enormous sums of money to prevent her from getting a hearing on the merits of her charges. Indeed, a FOIA request filed by one of her supporters over the summer revealed that NEIU paid a Chicago law firm an amazing $430,000 for work related to her lawsuits in 2008-2009 alone.
Fortunately, academics around the country are beginning to rally to Capeheart's cause. In addition to the grant from the national AAUP, the faculty union at Rutgers University has contributed money to help cover Capeheart's legal expenses. Faculty at Harper College, the Chicago city college system, and the University of Texas at Austin have passed resolutions of support. But more needs to be done. Everyone who cares about the future of higher education in America should support Loretta Capeheart in this struggle. For more information on the case and how you can help, visit http://justice4loretta.com.