Chicago State University's president goes away—after a lawsuit doesn't

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Now former Chicago State University president Wayne Watson
Yesterday, upon the stair,
I met a man who wasn't there.
He wasn't there again today,
I wish, I wish he'd go away . . .

There's an undeniable frisson to these old lines by Hughes Mearns, but that doesn't mean the paradox is easy to grasp. Having recently read some legal documents, I have a better idea of how it works.

Wayne Watson, president of Chicago State University, is a man whom many of his teachers and students wished would go away. They didn't welcome his appointment in 2009, and the faculty senate voted last November that it had no confidence in his administration. With a year and a half to go on his contract, Watson recently resigned under fire.

But before he agreed to go away he was very much around. He personally doesn't illustrate the concept. Here's what does.

Fifteen months ago, professor Phillip Beverly received a "cease and desist" letter from CSU. Beverly is chairman of the faculty senate; but he was written by general counsel Patrick Cage in his capacity of publisher of a blog, CSU Faculty Voice, that was highly unfriendly to Watson. Cage told Beverly the blog's "unauthorized use of CSU's trade names and marks" was sowing confusion. So the university told Beverly to cut it out.

And while he was on the subject of the blog, Cage thought he'd add a "moreover." Your blog lacks "any content civility standards," he complained, and "the lack of civility and professionalism expressed on the blog violates the University's values and policies requiring civility and professionalism of all University faculty members."

So Beverly and his collaborator, history professor Robert Bionaz, tweaked their blog. CSU deemed the tweaks insufficient and repeated its warnings. And last July Beverly and Bionaz sued Watson, Cage, and Cage's associate general counsel in federal court. The defendants were accused of waging an "ongoing campaign to silence Plaintiffs' criticisms of how the University is run." Fresh evidence of this was the new Cyberbullying Policy CSU could now wield as a tool "for restricting Plaintiffs' speech."

CSU's Cyberbullying Policy had been adopted in May by the board of trustees, its purpose being "to protect members of the CSU family from bullying through any form of electronic communication." This sounds high-minded, and perhaps the policy was ratified with only the best intentions. But the plaintiffs complained that it slung around terms such as harm and harass without defining them, which gave CSU "unbridled discretion" to make them mean whatever suited the university's purposes. Likewise with an older document, CSU's Computer Usage Policy, which forbids the usage of CSU computer systems "to embarrass or humiliate any member of the community" and requires computer users to "respect the mission of the University in the larger community." Though the computer usage policy explicitly covered only CSU's own "computing facilities," which the blog didn't use, the plaintiffs feared CSU would "arbitrarily" inflict the policy on them anyway.

In reply, CSU suggested the suit be laughed out of court. Beverly and Boniarz, it began, "challenge two CSU policies that have never been enforced against them, have never been threatened against them, and have no reasonable probability of being enforced against them." This "bizarre . . . vast overreach . . . is not only baseless, it also deprives this Court of subject matter jurisdiction. . . . Any allegation that the Challenged Policies will be enforced against Plaintiffs is entirely hypothetical, speculative, and conjectural."

In other words, the plaintiffs had been scared silly by a man who wasn't there. The suit was baseless and the court should dismiss it.

It's true—neither the cyberbullying policy nor the computer usage policy was named by the cease and desist letter (or by a follow-up letter from CSU insisting that "it is not the University's intention to censor or inhibit the professors' speech"). But were those policies lurking on the stairs regardless? It was up to federal judge Joan Gottschall to decide, and she saw their shadows. On January 13 she refused to dismiss the suit. She didn't rule that the bloggers were right about their fears—but she respected them.

She respected those fears judicially because she had to—"At this stage in the proceedings, the court must draw all reasonable inferences in the plaintiffs' favor," Gottschall wrote. But this inference was easily drawn. The cease and desist letter had asserted the blog's "lack of civility" violated CSU's "values and policies." It was "eminently reasonable" to conclude those policies were the ones Beverly and Bionaz claimed they saw on the stairs, so to speak, even though CSU insisted there was nothing there.

Gottschall noted that the cease and desist letter complaining of incivility had been sent to Beverly one business day after the blog had accused CSU's acting provost of partially falsifying her resume. And she noted how gratuitous that complaint was. It was, after all, "a letter ostensibly about alleged trademark violations."

If the suit had gone away, perhaps Watson wouldn't have. But it didn't, and he has.

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