Loretta Capeheart's Battle: Campus Dissent Under Fire

Since 9/11, the U.S. has witnessed a steady stream of attacks on academic freedom and dissident academics by union-busting politicians, conservative media commentators and university administrators. Occasionally—as with DePaul University’s denial of tenure to radical political scientist Norman Finkelstein or Fox News talk show host Glenn Beck’s prime time tirades against progressive sociologist Francis Fox Piven—these attacks garner mainstream news coverage. Usually, they do not. For the past five years, Loretta Capeheart, a tenured professor of Justice Studies at Northeastern Illinois University (NEIU), has been engaged in a battle for free speech and academic freedom at her university that has gotten remarkably little media attention. But it is a battle that may have enormous consequences for the rights of academics and public employees across the country.

Capeheart is a long-time activist for social justice, a leader in her faculty union and serves as an adviser to the NEIU Socialist Club. Her activism quickly attracted the ire of the school’s new administration, headed by president Sharon K. Hahs, an administration apparently bent on stifling dissent on campus.

In April 2006, Capeheart and a group of students were threatened with arrest for handing out anti-war leaflets in front of Army recruiters at a university job fair. The following fall, Capeheart testified about the need for more Latino faculty to a fact-finding delegation from the state legislature’s Latino Caucus, directly contradicting the position advocated by then-Provost Lawrence Frank. 

In February 2007, members of a NEIU student anti-war group staged a protest against a CIA recruitment and information session sponsored by the university’s career services office. Two protestors—who were also members of the Socialist Club advised by Capeheart—were arrested. When she learned of the arrests, Capeheart called the campus safety office and attempted to get the students released. “The campus cops said they were going to turn them over to the Chicago Police Department.” Capeheart explained. “I was concerned for their safety.”

In the aftermath of the arrests, Capeheart and other faculty spoke out and wrote against the student arrests. When she showed up at a meeting of the faculty council on student affairs and voiced concerns about the administration’s treatment of the protestors, NEIU vice president Melvin Terrell launched into her, claiming that a student had filed charges of “stalking” against her and that she was being investigated by campus police.

“I was shocked and stunned into silence,” said Capeheart. The slanderous allegations were completely unfounded, but were serious enough that Capeheart became concerned about the damage they could cause to her reputation. Her union local asked the Administration for an explanation of Terrell’s outrageous insinuations.

“Over spring break, Provost Frank called me and said that a student had filed some charges and had misidentified me as one of the people involved,” she said. “I found out that a student aide working in Terrell’s office had made a complaint about some people from the Socialist Club ‘watching’ and ‘following’ her and incorrectly identified me as the person who allegedly tried to chase her down while she was passing out some flyers denouncing the Socialist Club. But her original complaint was not, in fact, a stalking charge. I was told that she withdrew her complaint a couple of days after Terrell’s attack on me.” Despite this, Terrell refused to formally apologize or retract his damaging claims.

The Hahs administration’s recriminations against Capeheart did not stop at slanderous statements in faculty meetings. In the summer following Terrell’s outburst, the chair of the Department of Justice Studies resigned and the department elected Capeheart to the position. Frank then announced that he’d refuse to appoint her. Eventually, the department was placed into receivership and managed from the Provost’s office. At around the same time, Capeheart learned that she had been passed over for an annual merit award despite a record of scholarly achievement surpassing that of many of the faculty who did receive awards.

Dangerous Precedents

During the Fall of 2007, Capeheart worked through the university’s established grievance procedure in an effort to get an apology from the Administration for Terrell’s slanderous statements. They refused. By March 2008, she reluctantly filed a defamation lawsuit in federal court. Besides highlighting Terrell’s false and defamatory claims, the suit accused administrators of violating her First Amendment right by retaliating against her for anti-war activism and her criticism of the university’s hiring policies.

NEIU’s lawyers—Franczek Radelet, a notoriously anti-union, Chicago-based law firm—responded by invoking the Supreme Court’s 2006 decision in Garcetti v. Ceballos  to argue that Capeheart’s political activism on campus was 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 NEIU’s reasoning. In February 2011, it threw out Capeheart’s suit, reasoning that the speech for which the university was punishing her was part of her official responsibilities as a member of the faculty.

The implications of the district court’s ruling for the academic freedom of faculty at public institutions of higher education are alarming, to say the least. As the American Association of University Professors (AAUP) commented, “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 AAUP, Capeheart filed an appeal with the 7th Circuit Court of Appeals and is currently awaiting a decision in the case. At the same time, Capeheart’s lawyers decided to pursue a state defamation claim in Cook County Court.

Unbelievably, on June 19, 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. Ironically, 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 violated the CPA, she is now liable to pay NEIU’s legal expenses, estimated at some $80,000. Since Capeheart has already gone in debt to finance her appeals, having to pay NEIU’s attorney’s fees would be a crippling financial blow. “This is precisely what the Illinois Citizen Participation Act was enacted to prevent,” remarked Héctor Reyes, a professor at Harold Washington College: “If this decision is left to stand, the CPA has been shred to pieces, with the additional damage of granting government officials license to crush any citizen with impunity.”

Oppressive Climate

Meanwhile, as Capeheart’s various legal cases have been wending their way through the courts, the political climate at Northeastern Illinois has grown steadily more repressive. 

In the fall of 2008, President Hahs proposed a draconian new policy restricting the right of protest and political speech on campus. The Policy Concerning Demonstrations on Campus, Distribution and Display of Visual Communications and Solicitation of Signatures on Campus—or DDS for short—would have required anyone planning to hold a demonstration, distribute literature, put up posters or gather signatures on a petition, to get permission from the administration at least one week in advance and include copies of all “visual communications” (such as protest signs) they intended to use.

Not only that, but all outdoor demonstrations would have to be over by sunset and the use of an amplification system would be restricted to Tuesday and Thursday between 1:40 PM and 2:55 PM. Fortunately, staunch faculty opposition to DDS forced Hahs to withdraw the proposal.

Then, on June 29, 2012, the NEIU Office of Student Leadership Development (SLD) seized control of the student-run radio station, WZRD, declared the radio club “inactive” and barred both student and nonstudent community staffers from the premises.

The grounds for this summary action—laid out in a memo from the SLD—amounted to vague, unsubstantiated charges of bullying and station mismanagement. The station—which has, for years, been a major Chicago outlet for alternative broadcast news such as “Democracy Now” and “Free Speech Radio News”—is currently being run by a skeleton crew under the direct control of the SLD. This pattern of blatant contempt for democracy and free speech led to a November 2011 faculty vote of no confidence in Hahs and her Administration—some 68 percent of the faculty voted no confidence.  

As NEIU Associate Professor of Political Science Russell Benjamin explained in a statement read at a recent press conference on Capeheart’s case, “The Administration is determined to have a campus wherein the students, faculty, and staff are not able to object to anything the campus overlords—and that is how they see themselves—do.” 

The Struggle Continues

The stakes involved in Capeheart’s struggle for academic freedom and First Amendment rights could not be higher. Fortunately, an increasing number of faculty and labor activists are rallying to her cause. At Rutgers University, the faculty union passed a resolution supporting Capeheart’s fight and donated to her legal fund. The faculty senates at the University of Texas-Austin, Harper College and the Cook County College Teachers Union (AFT Local 1600) also approved resolutions of support.

Currently, the Justice for Loretta Capeheart Campaign is circulating a petition protesting the most recent Cook County court ruling and is planning a major push in the fall to expose the huge amounts of money NEIU has spent to silence one of its faculty. Everyone interested in preserving the right to dissent at our universities should get involved in the fight. 

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Steve Macek is president of the AAUP Chapter at North Central College in Naperville, Illinois where he teaches media criticism and urban studies. For more information: justice4loretta.com.