Some excerpts from Judge Steven McAuliffe (D.N.H.) Monday in the relatively lengthy Fosu v. Univ. of R.I. Bd. of Trustees (D.R.I.) hint at many more details contained in the full opinion. Below is the backstory regarding the plaintiff.
[1.] The backstory about the plaintiff:
In 2018, the University of Rhode Island (URI) recruited and brought aboard Dr. Gifty Ako-Adounvo to serve as Vice Provost for Global Initiatives and Senior International Officer. Dr. Ako-Adounvo sought URI’s assistance in finding employment for Fosu, her domestic partner. When no external job options materialized, URI appointed him as a visiting professor for the 2019 spring term. URI then designated Fosu to a one-year faculty of practice position to teach within the Political Science Department for the 2019-2020 academic year. A faculty of practice represents a one-year appointment and is non-tenure track.
Fosu did not possess the academic credentials typically required to teach the department’s core curriculum courses in Political Science. The department chair, Professor Marc Hutchison, decided that Fosu could teach elective offerings as a faculty of practice. He was slated to teach a course on the Supreme Court and constitutional law, and he also proposed an advocacy course that received approval. Throughout the 2019-2020 year, Fosu taught elective undergraduate courses in constitutional law and advocacy and a graduate course….
[2.] The court examined several bases for not renewing Fosu’s appointment; here is a sample excerpt, though other factors were at play as well. It is noted that, because Fosu did not respond to the defendants’ motion for summary judgment, the court accepted the defendants’ presentation of the material facts as uncontested:
On October 26, 2020, Fosu sent an email titled “Declaration of Diversity” to URI President Dooley, with copies to numerous others including URI faculty and staff, URI students, law enforcement personnel, and government officials. In that message, Fosu again targeted the Chief Diversity Officer, Mary Almandrez, and he criticized the hiring process involving Dr. Sylvia Spears and Dr. Harry Alston. He accused URI’s faculty and staff of racism, collusion, unethical conduct, and violations of the law.
The email contained a boxed warning stating that “all parties mentioned in this letter and involved in the Dr. Harry Alston and Dr. Sylvia Spears interview process must not shred or destroy any documents, must not delete any emails or electronic messages from November 1, 2019 to present.” Fosu also asserted that he and others were invoking their Fourth Amendment rights.
In the email, Fosu informed President Dooley that his private company, Diversity Think Tank, was “headquartered” at URI and that its aim was “to directly target and expose URI’s indefensible and offensively prejudicial and discriminatory policies and the people who perpetuate intentional racism and normalized racist inequities through the machinations of white supremacy.” …
[Fosu attached a] “Declaration of Diversity” said to be issued by “organized URI students.” The Declaration began with a claim that “We as organized URI students hold these facts to be self-evident, that there is a deliberate and racist dehumanizing exclusion of highly qualified African-Americans/Blacks, Latinos/Hispanics and Native Americans from senior leadership and other positions throughout the university, including Administrative Staff, Deans, Department Chairs, Faculty, Functional Staff and Students.” …
The Declaration included 46 “complaints and demands,” one of which stated:
We students will create a White-list of all the white professors who define and list themselves as diversity initiative conveners, race experts and researchers while they are silent and benefit from white supremacy and racism at URI, which is evident from the fact that no African-American with slave ancestry and no Latino has ever been hired to a senior leadership position since 1892—and not a single white faculty member has raised a concern about this fact, and there are no Black faculty members in the Criminal Justice Department and only a few at the Harrington School. You white professors don’t need research to uncover systemic racism at URI—you are part and parcel of its creation and maintenance through your self-serving policies, unapologetic excuses, discriminatory behavior, and a culture of impunity. You should be ashamed, and we will help end this metastasized disease of racism. Your panel discussions about diversity and ethics should be our panel discussions, and we decide who should participate.
“The Declaration was signed by four URI students who were identified as Diversity Think Tank trustees, non-student trustees of Diversity Think Tank, and Fosu.”
As expected, tensions arose with other faculty members:
Several faculty members voiced concerns to the department chair, Professor Hutchison, about the email and the Declaration of Diversity… In a Political Science Department meeting, Fosu spoke over others and spoke about bringing in his army of lawyers. The faculty worried that if they disagreed with Fosu, he would label them as racist…. In a subsequent email, he criticized how he had been treated during the meeting and asserted that the faculty must take a stand against racism or they would be complicit in it. He also singled out individual faculty members to challenge their positions during the department gathering. To one female faculty member, Fosu wrote:
Racism and discrimination are not complicated to understand as you suggested in your job candidate example…. Perhaps you should reflect and recognize that the highly qualified Black person who interviewed as your search committee’s first choice likely declined the job to avoid anticipated racial conflict and marginalization in our predominantly white environment…. Step out of your defensive stance nurtured by white privilege and try to empathize with Black candidates who walk this campus…. I have experienced that subtle disrespect and suspicious questioning during our meeting on Friday.
In response to another faculty member’s discussion, Fosu wrote: “The main beneficiaries of Affirmative Action have been White women—not Black men and not Black women—cultural hegemony has been very successful at falsely convincing us that Blacks benefit most from Affirmative Action.” He further stated that “[w]hat I was discussing with [a male faculty member] at a deeper level before I was interrupted by [the female faculty member] is that we cannot rely on an institution that has been systemically racist for 128 years to produce progressive policies that advance racial equity.”
Hutchison testified in his deposition that Fosu’s email caused distress within the department. Faculty members worried they could be publicly accused of racism merely for teaching about race issues. Other colleagues told Hutchison that the department could not engage with Fosu because he would not entertain viewpoints other than his own. The targeted female faculty member told Hutchison that Fosu had created a hostile work environment and was bullying female colleagues….
[3.] There were also several student complaints; the court reviews the details, but here is a representative sample:
Kathy Collins, the Vice President of Student Affairs, summarized one student’s report as follows:
The Declaration for Diversity was pre-written by Mr. Fosu and brought to class in September 2020. Students could edit using a Google Doc, but none of their edits were accepted. The student I spoke with has not “seen the document since September.” When students asked if they could edit it, they were told, “no.”
A petition on change.org circulated in class, and students were pressured to sign at the start of a recent session. Students did not author the petition.
Several students asked Mr. Fosu to remove their names from documents, emails, etc. He told them they could not be removed, claiming they were “legally required to be named because” they had “reviewed the document.”
The student also reported that students were “very fearful about grades,” felt “uncomfortable in class”—notably because of “misogyny”—and described the course as filled with “extreme radicalism.” The student felt that Fosu viewed students as “collateral damage.”
Student 4 later met with Hutchison, reporting that Fosu intimidated students into going along with the Declaration of Diversity. The student stated that students didn’t have a voice. The same student described misogyny in Fosu’s treatment of female students, noted the use of “inappropriate and crude language in class” that made them uncomfortable, and cited inappropriate emails and requests. The student also reported that Fosu canceled classes without warning….
A little later, in December 2020 and continuing into January 2021, four of the six URI students who had signed the Declaration as Diversity Think Tank trustees resigned from the Think Tank. The students asked Fosu to remove their names from all Think Tank materials. In their resignation emails, the students explained that they no longer agreed with Fosu’s aims and actions and that he had sidelined their interests.
Fosu’s reply to the first student and to others on the list was a lengthy email in which he referred to the student as a white man and accused him of making a false statement that the people’s best interests were not his priority. He addressed the other resigners by name, extended a dismissal of them for “fabrications, ulterior motives and for the pusillanimity of [their] incoherent email,” and claimed that this “collective tantrum” stemmed from the fact that he had “shut down” the first student and would know how to respond to any Black/African American man of his caliber who disagreed with him. By the end of January, another student left the Diversity Think Tank, describing Fosu’s responses as “accusatory, disagreeable behavior.” …
[4.] The court concluded that the speech in question was not protected by the First Amendment under the government employee speech framework:
Under Pickering v. Board of Education (1968), courts weigh the value of an employee’s speech—balancing the employee’s own interests with the public’s interest in the information conveyed—against the employer’s legitimate interest in preventing disruptions or inefficiencies that interfere with the public service mission. …
Fosu’s concern with racism at URI and his worries about diversity in hiring and student enrollment are recognized as public issues. Yet, under the prevailing rule in the First Circuit, speech that is delivered in a vulgar, insulting, and defiant manner carries less weight in the Pickering balancing. The emails authored by Fosu and much of the Declaration of Diversity include personal attacks and derogatory remarks directed at Chief Diversity Officer Almandrez and other URI faculty and administrators, and such communications are generally given less weight for purposes of balancing interests.
On the other side of the balance, URI placed Fosu on administrative leave due to misconduct. The grounds included coercion, intimidation, and retaliation toward students restricting their freedom to learn; publicly expressed hostility, harassment, and disrespectful or threatening behavior toward colleagues and toward opinions that diverge from his own; and disruption of departmental processes and overt efforts to interfere with officially sanctioned university procedures…
Fosu was frequently late to class and canceled sessions. His students were intimidated and feared retribution for not aligning with his agenda and with his Diversity Think Tank. Faculty in the Political Science Department found him disengaged and disruptive. He expressed misogynistic views that intimidated both students and colleagues. …
Thus, the balance of interests overwhelmingly favors the defendants. Consequently, Fosu has not shown that his speech is protected by the First Amendment….
Steven M. Richard represents URI.
