Daniel Ravicher started and runs a successful entrepreneurship clinic (the “Startup Practicum”) at the University of Miami School of Law. His office happens to be in the same pod as mine, so back in the days when people saw people I would see him from time to time. Like an increasing number of the people who teach students in law these days, Ravicher is not a tenured member of the faculty, and indeed was not hired for his scholarship. Instead he was hired for his skills, and has a term renewable contract.
He’s recently taken to social media – and even Fox TV – to claim he’s been fired for his pro-Trump tweets and other speech, or is about to be, or may not have his contract renewed when it expires. As far as I have been able to ascertain, at least the first two of these claims are simply false. The fate of the third lies well in the future.
While Ravicher has behaved badly – lying about your employer counts as behaving badly in my book – the University has, with one exception (discussed rather far below) [Update: as described in more detail below, according to the Dean, even this wasn’t anywhere as bad as the story that had been going around], behaved quite well, and held, so far at least, to its fundamental commitments to academic freedom.
But first, some lengthy background.
1. The Applicable Rules
The University of Miami, which has substantial powers to dictate rules regarding the terms of faculty employment to the law school, has an extensive Faculty Manual, which describes various rights and duty of the faculty. As regards freedom of speech and academic freedom, the Manual makes no distinction between tenured and non-tenured faculty, although its provisions do not in many cases apply to “staff” who are hired in a different manner and in some cases have fewer rights against dismissal for various reasons.
The UM Faculty Manual provides in § C.8 that
“Faculty members shall have full freedom of expression as teachers, researchers, scholars, and/or artists; this includes freedom to present their work, to advocate solutions to human problems, and to criticize existing institutions. This freedom does not abrogate faculty members’ responsibility to perform their academic duties or obligations they may have assumed in accepting support for research. Research activities are also subject to University policies such as those on patents, copyrights, and inventions as set forth in the Faculty Manual.
“Faculty members shall have freedom in the classroom in discussing the subject but should avoid persistently introducing material that has no relation to that subject.
“When speaking or writing as members of society, faculty members retain all the rights shared with other members of society and shall be free from University censorship or discipline. It should be remembered that the public may judge a profession and the University by public utterances by faculty members. Faculty members thus should make every effort to indicate whether they are acting as spokespersons for the University or are speaking in a private capacity.”
That is a nice statement, and a pretty absolute rule. But wait, there’s more.
More recently – very recently – the UM administration amended the Faculty Manual to add the following additional language, effective 11/03/2020:
The University of Miami (“University”) is committed to the principle of free expression, and academic freedom, including the exchange of political viewpoints and ideas, for all members of its community. The University encourages its faculty, staff and students a to fully participate in their rights of citizenship, including exercising the right to speak, vote, campaign, and otherwise engage in the political life of our community, state, and nation. In addition to the provisions contained in this policy, employees within the University of Miami Health System have guidelines provided in University of Miami Hospital and Clinics’ Social Media Policy.
Nothing in this policy is intended to limit the rights of faculty, staff or students to express personal opinions or engage in political activity in their individual capacities and as private citizens.
The University acknowledges that social media may be used to further the University’s mission by providing channels of interaction and engagement between the University and students, faculty, staff, and the community. However, certain types of partisan political activities by the University or by University employees, in their official capacities, are incompatible with the University’s tax-exempt status under the law.
This policy describes the limitations on University involvement in partisan political campaign activities and the use of University social media sites.
This policy applies to all University faculty and staff who are employed by the University in any capacity. The guidelines also apply to others, such as volunteers and appointees who use internally managed University computing resources. This policy may apply to employees outside of work hours and while using personal accounts when use of social media affects an individual’s professional responsibilities, violates an applicable law, or constitutes a violation of University policy:
The purpose of this policy is to encourage the use of social media by University faculty and employees while making sure usage is in line with applicable state and federal laws and regulations, and to provide protection to the University’s reputation and other members of its community. This policy primarily focuses on social media accounts that are University-owned and University-controlled, however, it also provides guidance when the University’s name or logo is displayed/used by a faculty member or a staff member on their personal social media account. More information about the University’s social media can be found here.
The University is exempt from federal income tax pursuant to Section 501(c)(3) of the Internal Revenue Code, and therefore prohibited from directly or indirectly participating or intervening (including the publishing or distributing of statements) on behalf of any political party or in any political campaign on behalf of or in opposition to any candidate for elective public office.
Additionally, the purpose of this policy is to define certain limitations that preserve the University’s tax exempt status and to protect against any conflicts of interest or commitment that may infringe on the ability of University personnel to perform their official duties and meet their responsibilities with maximum effectiveness and objectivity.
I. PERSONAL SOCIAL MEDIA SITES
There are no restraints upon the personal political activity of faculty and staff, provided the employee is acting as a private citizen, is not representing the University, and is not using University resources in connection with partisan political activity.
- Faculty and staff members may not use University name, logos, letterheads, symbols, or other identifiable marks of institutional affiliation, including pictures, for the purpose of endorsing or promoting political parties, campaigns or candidates.
- A faculty or staff member endorsing or opposing a candidate for political office, or taking a position on an issue must make it clear they are speaking as an individual and are not stating a University position.
II. UNIVERSITY SOCIAL MEDIA SITES
- On any University-owned and University-controlled social media sites, an employee’s posts must protect the University’s institutional voice by remaining professional in tone and in good taste. No individual University department or unit should construe its social media site as representing the University as a whole.
- The University’s trademarks are intended to present a positive image of the University, and may not be altered in any way. Nor can the University’s trademarks be used in the name of a business or logo, or in promoting services or a product in a way that could state or imply an endorsement of the University.
- An employee is prohibited from posting confidential or proprietary information about the University or its students, employees, or alumni. Employees must follow the applicable federal requirements such as FERPA, HIPAA, and NCAA regulations; and adhere to all applicable University privacy and confidentiality policies.
III. POLITICAL ACTIVITIES
Faculty and staff are welcome and encouraged to participate or intervene in a political campaign in their individual capacity as a citizen. However, while all members of the University community are free to express their political opinions and engage in political activities to whatever extent they wish, it is very important that they do so only in their individual capacities and avoid the use of University trademarks, logos, and imagery in faculty and staff social media posts that are electoral or partisan in nature, or otherwise would imply the University’s endorsement of the views expressed in the post.
- Certain activities such as certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity under Section 501 (c) (3) of the Internal Revenue Code for tax-exempt organizations. In addition, other activities intended to encourage participation in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity, if conducted in a non-partisan manner.
- Voter education or registration activities with evidence of bias that would favor one candidate over another; oppose a candidate in some manner; or have the effect of favoring a candidate or group of candidates, will constitute prohibited participation.
Violation of the provisions in this policy may lead to disciplinary action up to and including termination of employment.
If I were the University’s lawyers, I’d want to emphasize protecting its trademarks and non-profit status too. Sensitivity to these issues is why I’ve always hosted this blog on an off-campus server that I pay for myself, and made clear that the opinions here are just my own.
2. Ravicher’s Speech & the Reaction to It
If you had asked me to name five Trump supporters on the full-time teaching faculty, I might not have been able to do that, but Ravicher’s name would have headed the list. He was the only gleeful person I met in the week after Trump was originally elected. But as far as I know, nobody made anything of that at the time, or indeed any relevant time until about the last week or so.
Similarly, although it’s all unsystematic hearsay, I am given to understand that political matters played basically no role in Ravicher’s teaching, and that there was no hint of any racial or political tinge to his teachings or grading. Indeed, almost everything I heard from students about his program was either positive or wildly positive. He was, I believe, nicer to staff than some other people I can think of, which I often take as a marker of virtue.
Ravicher, like many of us, has a Twitter account. Last week he posted some things I would characterize as dumb and/or in bad taste, but not in violation of either the original University policy nor the policy as amended. There were a number of standard modern Republican tropes relating to the recent election, the role of Hispanic and Black voters, and so on. I thought some of the stuff about the election was quite obviously wrong. I thought the suggestion that Black voters would lose clout as time passed because their relative numbers would suffer from a high abortion rate in the Black community to be tasteless (and, sadly, unoriginal), and easily misunderstood as supporting eugenics, and for that reason a really stupid thing to post in the nuance-free form of a tweet. But again, it was nothing more than what for many years has come out of the conservative echo chamber. He also posted that he was going to Walmart “to get what I need to protect my family from “peaceful protesters” who can’t accept the result of an election.#SecondAmendment #StandYourGround”. In a world where the threats of post-election violence seemed to come from right-wing types like the Proud Boys, this seemed more than a bit odd, but it did come shortly after news reports of business in various (other) cities boarding up storefronts for fear of….something, so there did appear to be paranoia in the air.
Overall, to be brutally frank, the tweets gave the impression of someone who had been reading a lot too much echo chamber media, had no ear for how some people could easily read a subtext that might not be there, and generally was getting a little unglued between the stress of a pandemic and a tight election. But again, nothing violative of University policy.
It turns out, however, that students sometimes read what we write. And a number of students understandably got upset by Ravicher’s tweets; some took their concerns to the administration.
And here’s where I think the U made a mistake. After [S]everal students complained about what they saw (I’d say predictably) as “racist undertones” in some of the tweets[.] , the law school responded by telling them that they could withdraw from Ravicher’s course without penalty. Our usual rule is that late withdrawals are memorialized on the student’s transcript. In an ordinary year, I would say that it was an error to let students circumvent that rule in the absence of any evidence of faculty wrongdoing (recall, in my view the tweets at that point were not in violation of any University policy, just of good sense). But this is the year of COVID, and all along the administration has urged us to bend over backwards in the face of student stresses to their physical and mental well-being. In the circumstances, therefore, I can understand the reaction even if I’m not certain it was the best one. I have considerably more trouble accepting what happened next. I gather that the Provost’s office instructed the law school to reach out to students who had not complained – some of whom had not even heard of the controversy – and offer them a chance to withdraw from the class too. Apparently, the Provost’s office thought the law school should do this in order to treat all members of the class equally.
[Update (Nov. 15): Dean Anthony Varona wrote to me to correct an error in the text above. He writes, “The Provost wisely advised us to reach out to Dan’s current students to offer support and flexibility should they have concerns. We did just that, first in an email to his students from me on Friday evening, Nov. 6th, inviting them to contact me directly with any concerns. Several did, asking for various forms of assistance. Shortly after I sent out my message, Prof. Ravicher himself sent a message to his students saying that if any of them are no longer comfortable in his class, that they should contact the law school’s administration “to withdraw.” At my request, Vice Dean Dawson has been working with several students in the Practicum who reached out to us for assistance. He also, after consulting with Prof. Ravicher, reached out to his students early last week with an offer to switch to Pass-Fail grading for the Practicum, individually, should they wish to do so.” I’m happy to say that I much prefer this version to the one that I had been hearing previously. That said, I’m still somewhat unhappy about the Dean writing proactively to all the students in a professor’s class and inviting the students to express “concerns” in the light of complaints received — but that is nowhere as bad as inviting them to withdraw, given there was no actual reason to suspect anything amiss about the class’s grading.]
Meanwhile, a group of law faculty published a carefully measured open letter in the Miami Hurricane. (“While Ravicher’s unprofessional behavior may be defended as a matter of academic freedom or free speech, academic and free speech norms do not insulate lawyers from critique. To the contrary, the principles of academic freedom and free speech compel us to speak out against Ravicher’s promotion of disinformation, invocation of violence and racially derogatory commentary.”) The letter didn’t directly call for Ravicher’s head. The signers did express their revulsion at his speech, which is what academics – and other citizens – should do when confronted with speech they find revolting. That said, the suggestion of “unprofessional” conduct has an undertone that may not be evident on first reading, since unprofessional conduct is a grounds for firing, even de-tenuring (after much process!), faculty.
Ravicher’s response was partly to cheerfully acknowledge the free speech rights of his critics, and also of the creator(s) of a parody Twitter account, and partly to double down.
He insisted (falsely) that he had been fired, or was about to be fired, and speculated that if not, he would be non-renewed. In support of these claims he published private emails from the Dean of the School of Law which Ravicher claimed supported his story, but in fact by any fair reading do the opposite, and actually paint the Dean as responding appropriately and helpfully.
Since Ravicher is still employed by the law school, we know his claims of being fired are false. To the extent that we rely on the written record he’s made available, I think it’s also fair to say that his claims of looming termination are also utterly unproven, and likely false. (For an outsider’s view that broadly agrees with this conclusion see here.) As to the renewal of his contract, that’s far away, and we’ll see.
Then Ravicher worked hard to make at least one of his predictions come true, by repeating his false claims about his employment status in a wooden interview on Fox TV, and doubling down on offending people. He expressed support for a really loathsome proposal floated by Florida Governor Ron DeSantis, that Florida’s already broad ‘stand your ground’ law should be extended to allow store owners to shoot suspected looters and rioters even when the shooter is in no personal danger. (The proposal is loathsome because in addition to creating a de facto death penalty for property crimes, and demonstrations that cause “impairment or interruption of business,” it makes the shooter judge jury and executioner.) He repeated other ‘own the libs’ stuff from the paleoconservative hymn book.
But, again, loathsome as it all might be, none of it violated the University’s policies. Which is why he hasn’t been fired (yet).
3. What Now?
From the narrow perspective of keeping his job, Ravicher’s biggest problem is that he’s going around saying something false about his employer, which damages the enterprise’s reputation. I’d put the rest of his statements under rubrics of bad taste, stupidity, and error, but none of that is a firing offense, at least if you do it on your own time and in your own name.
From the broader perspective, it looks to me like Ravicher’s problem is that he’s bought into a narrative in which he is, or wishes to become, the heroic victim of the PC Police. Unfortunately for him, and fortunately for all the rest of us, the University has failed to actually martyr him. And, so far, other than lying about it, he’s not, in my free-speech-supporting view, done anything else to trigger it.
I’m not Ravicher’s buddy, but if I were then I’d tell him that when you are in a hole, you should stop digging. He ought, I think, to take a week or two off Twitter to allow himself, and everyone else, to calm down.