January 11, 2015; Marie Corfield
SLAPP suits are a favored tactic of the powerful who want to shut up their critics. The acronym stands for “strategic lawsuit against public participation,” but in New Jersey, a charter school advocacy group is giving the anti-free speech tactic a new anti-academic cast.
First, a primer on SLAPP suits from the First Amendment Project:
“SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
“Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they ‘succeed’ in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a ‘chill’ on public participation in, and open debate on, important public issues. This ‘chilling’ effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.”
In its suit against Julia Sass Rubin, the New Jersey Charter Schools Association has found a new mode of attack; they filed a complaint with the New Jersey State Ethics Commission against Dr. Rubin, an associate professor at the Edward J. Bloustein School of Planning and Public Policy at Rutgers University, charging she had violated New Jersey’s Conflict of Interest Law, its Uniform Ethics Code, and the Rutgers Code and Policies for faculty employees.
Rubin’s crime in the eyes of the NJCSA is that she co-authored a report with Rutgers graduate student Mark Weber entitled “New Jersey Charter Schools: A Data-Driven View – Volume 1: Enrollments and Student Demographics” in October 2014. It documents the fact that charter schools educate a smaller proportion of low income, special needs, and ESL kids than exist in the school districts in which the charters function. Specifically, the report found…
“Lower rates of economically disadvantaged, Limited English Proficient, and special education classified students in charter schools result in those students being concentrated at higher rates within the host district schools. This increases segregation and impacts the quality of education that districts can provide and the financial resources available to pay for that education.”
In its complaint, NJCSA claims that Rubin is pursuing a personal agenda, publishing her personal views under the guise of Rutgers University research, and speaking publicly and testifying about charter schools while identifying herself as Rutgers faculty.
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Here is the import of the NJCSA complaint for nonprofits concerned about academic free speech:
- First, this SLAPP suit (or SLAPP complaint, to be more specific) implies that academic research that goes against the positions of a powerful organization or interest group—in this case, the New Jersey charter school community, can be silenced on the grounds that the conclusions are personal biases, not research. Moreover, academics like Rubin who produce research could be silenced on the grounds that their employment at a university (or a public university, such as Rutgers, which is New Jersey’s state university system) gives their comments credibility in front of public bodies that they do not deserve, so if they speak on an issue, they shouldn’t identify themselves as university faculty. This tactic is somewhat new, aimed at constraining what faculty can say or conclude, given the NJCSA insinuation that research contrary to the Association’s beliefs must simply be research concocted by Rubin to support her personal beliefs or biases.
- Second, the NJCSA alleges that Rubin’s research and her testimony before public bodies creates the impression that she is speaking for—and lobbying for—Rutgers itself and therefore violating prohibitions against university personnel lobbying on behalf of Rutgers. That is what the NJCSA alleges, except that in its complaint, the NJCSA omits the words “on behalf of Rutgers” in its recitation of the lobbying prohibition, so that the impression is that the prohibition stops anyone from Rutgers lobbying about anything at all if they happen to identify themselves as employed at the university. In that instance, the NJCSA complaint is truly troubling for individuals who want to exercise their Constitutional rights as citizens to speak out, advocate, and lobby.
- Third, Rubin is a co-founder of Save Our Schools New Jersey, an advocacy group that has been supportive of traditional public schools and critical of charters. The notion that Rubin can both do research and be involved in public policy advocacy that is consonant with that research is incomprehensible to the Association: “The…conclusion and recommendations [of Rubin’s paper] are identical to—and clearly intended to provide the appearance of legitimate academic support for—the lobbying positions that Dr. Rubin and SOSNJ have zealously promoted for years,” the Charter Schools Association wrote in its complaint. “SOSNJ capitalizes on Dr. Rubin’s affiliation with Rutgers, which lends credibility to SOSNJ’s lobbying efforts and political agenda.” In a rational world, NJCSA could challenge Rubin’s research and try to find evidence that she had skewed her research to fit her personal beliefs or generate statistics that counter Rubin’s, but NJCSA’s approach is to assume that a faculty member’s research which supports an advocacy position must automatically be biased and untrue, and therefore should be shut down and removed from any connection to a home base such as Rutgers that gives it the imprimatur of professional credibility.
- Fourth, the paper that NJCSA is complaining about is only the first part of a series of papers that Rubin and Weber are producing. Two more are to come. The SLAPP suit, if it were to be successful in intimidating and deterring Rubin, would result in exactly what SLAPP suits do: shutting up the opposition. If the NJCSA did have legitimate data to counter Rubin’s work, it would be so much better to simply allow her to write—as a university professor—and issue its critical commentary for the public to examine and determine who is more right. But that isn’t its tack. Rather, according to Bob Braun, the former education editor of the Star-Ledger, the NJCSA can’t do it: “Because charter schools cannot refute the evidence on its merits, they have chosen to try to intimidate those who make the facts available to the public,” Braun writes. “To ruin their reputations and future job prospects.”
If nonprofits, both in New Jersey and nationally, sit by and watch a nonprofit association (NJCSA) try to intimidate both Rubin and SOSNJ, that would be a crime, not Rubin’s work. As education blogger Peter Greene notes, NJCSA’s complaint boils down to this:
“Her alleged unethical behavior is, as near as I can tell:
1) Saying things that the NJCSA doesn’t like.
2) Telling people what her job is when she speaks.”
In her blog, Diane Ravitch quotes Professor Rubin’s response, copied from her Facebook page:
“Their complaint is not only completely devoid of substance, it also demonstrated very unethical behavior by the NJ Charter School Association as the complaint distorts the Rutgers Lobbying and Advocacy Policy, including actually editing parts of that policy to change its meaning and omitting the list of communications that are expressly not considered lobbying. Of course, every example of my writing or testimony that they categorized as ‘lobbying’ [editorials, speaking at public events, etc.,] was actually on the list of communications that do not constitute lobbying. Aside from demonstrating the NJ Charter School Association’s stunning lack of morality, this also is a chilling attack on personal and academic freedoms. If Professors of Public Policy are not allowed to testify or write editorials that displease well-funded constituents, we are truly in trouble as a country.”
What if NJCSA were to somehow win this challenge against Rubin and compel her to give up her Rutgers identity when she speaks before public bodies or writes op-eds and letters to the editor? Or, even worse, what if the conclusion is that she violated Rutgers policies and, consequently, she has to “withdraw from her involvement in outside organizations including SOSNJ”? The damage to both academic and nonprofit free speech ought to be obvious. We’re waiting for state and national nonprofit associations to speak out against this travesty, as they should, and stand up for the core nonprofit value of free speech.—Marty Levine and Rick Cohen
Disclosure: Rick Cohen was an adjunct professor of City and Regional Planning at Rutgers three decades ago.