Michael Fischler is an award-winning professor emeritus of education at Plymouth State University, a public institution in Plymouth, New Hampshire. He founded its Counseling and Human Relations Center, led it for four decades, and ultimately saw it officially renamed in his honor.
But that honor has now been stripped, his attorneys say, and he is being asked to complete Title IX training before he is again allowed to teach––unlawfully so, they claim, as a punishment for constitutionally protected speech.
Last year, Fischler was contacted by a lawyer representing one of his former students, Kristie Torbick, a high-school guidance counselor in her late 30s. She had been arrested and stood accused of a shocking crime: engaging in sex acts with a 14-year-old to whom she was providing therapy.
The mother of three had yet to admit guilt and it was unclear if she would contest the charges. Would Fischler be willing to submit a letter to her defense lawyer setting forth his recollections of his former student?
He obliged, offering impressions formed over a three-year period a decade earlier. Everything he wrote was explicitly presented in the context of her performance in her course work and as a graduate assistant. He offered no opinion as to her guilt or innocence, and concluded with a passage assessing her character as he had experienced it.
Kristie, through her performance as a student and trusted partner in the delivery of two academic courses, earned my unequivocal support. She performed said ‘roles’ exceptionally well, consistently demonstrating behavior that reflected selflessness; compassion; reliability; self-effacing humor, mindfulness and wisdom. Her commitment to facilitating the intellectual and emotional growth of others was exemplary. Thus, she has earned and receives my unconditional support.
Torbick would later change her plea to guilty. Before the imposition of a sentence, her former professor’s words and 22 other statements were presented to a judge, who sent her to prison for two-and-a-half to five years. Suddenly, all 23 statements were part of the public record—many of them read in open court before sentencing as the victim sat listening. (Fischler was not among those who attended the hearing.)
The scene upset many observers.
The defense submitted 23 “glowing letters” from “current and retired professors from Plymouth State University, high school guidance counselors, lawyers and psychologists,” the New Hampshire Union Leader reported, dubbing it an attempt “to influence the sentencing of the admitted child sex offender.” The newspaper added that the perpetrator’s “support from the education and medical professions has sparked outrage.”
That outrage was fueled in part by a sentencing hearing that included many more defense than prosecution witnesses. It also came in response to a letter from Nancy Strapko, an associate professor emeritus and former graduate school health education coordinator at Plymouth State, who wrote, “Kristie takes full responsibility for her actions with her ‘victim.’ I put this in parentheses because I am aware that her ‘victim’ was truly the pursuer in this case.”
The outrage might’ve been constructive had it been confined to objecting to the wrongheaded proposition that a 14-year-old can bear blame for a 37-year-old’s sex crimes, or to how the sentencing hearing was run.
Alas, outrage extended to mere participation in the aspect of the criminal-justice system that probes the character of the guilty aside from their crime, as though taking part in that inquiry is akin to excusing criminality. Outrage extended even to participants like Fischler who submitted a defensible statement yet was targeted by a righteous mob.
He soon felt compelled to email colleagues what was already obvious to observers applying common sense or basic charity: “None of the comments in my ‘statement’ represented my support of Kristie as a ‘child molester,’” he wrote.
My support for Kristie, as framed in the letter, was restricted to the context within which I knew and worked with her … my “unconditional support” was directly related to the behavior she demonstrated while under my supervision ... My “unconditional support” is not and was never meant to support the terrible damage she had done to a child. My heart goes out to the victim and family for the irreparable damage done, and to all those touched by this tragic situation.
But by then it was too late. His statement was already a matter of public record in a culture where a rising faction sees virtue rather than vice in taking extreme umbrage at tiny verbal missteps—going so far as to target the livelihoods of folks accused of wrong-speak—rather than taking into account intentions, long-stated beliefs, and longstanding reputations. Call-outs are in—and fair-mindedness is out.
Excessive umbrage sometimes dies out without doing much harm. Mobs have short attention spans. Their anger is as fleeting as it is heated, full of passionate intensity about matters that many participants themselves scarcely remember a month hence. And initially, Plymouth State pointed out that its faculty members who wrote on behalf of the defense were engaged in constitutionally protected speech.
The university’s role should’ve ended there. Alas, the obligations that the First Amendment confers on public institutions are frequently violated by administrations staffed with more PR professionals than free-speech champions.
Amid public pressure, PSU released an August 1 statement that read (in part):
Dr. Nancy Strapko will not be rehired as an adjunct teaching lecturer or employed in any other capacity at Plymouth State University. In PSU’s opinion, portraying a 14-year-old sexual assault victim as a “pursuer” is legally wrong and morally reprehensible.
It may well be both—but it remains constitutionally protected speech. The statement continued:
Before returning to teach at PSU, Professor Emeritus Michael Fischler and Professor Gary Goodnough have agreed to complete additional Title IX Training and to work closely with PSU faculty, students, and staff to address the issues and the concerns created by their letters.
But how did Fischler’s statement transgress in any way against Title IX? It would appear that PSU’s administrative leadership, rather than its embattled faculty members, need remedial Title IX training.
PSU now stands credibly accused of violating federal law.
“By imposing penalties on these professors, PSU runs afoul of the First Amendment and its own academic freedom policies,” the Foundation for Individual Rights in Education declared in a condemnatory statement. “Although adjunct professors are without the benefits of tenure, public universities may not refuse to rehire them over protected expression, as such an act is retaliatory in nature and violates their First Amendment rights.”
On Monday, a PSU spokesman told me that the university would respond to FIRE’s letter by the deadline that the civil-rights organization suggested, but that it would defer commenting publicly until then. He declined to say whether Fischler, who no longer agrees to Title IX training, will be barred from teaching until he completes it.
PSU’s actions are additionally damaging insofar as they add to a chilling effect that is likely to dissuade others from participating in future criminal procedures on behalf of people accused of serious crimes.
Mark Fischler, Michael’s son, is an associate professor of criminal justice at Plymouth State. “Can a faculty member now never speak on the character of an ex-student when they are in trouble with the law or facing some kind of disciplinary hearing?” he asked, in an email. “What of a current student? … For a Judge to render a just verdict they must hear freely from the prosecution and the defense in terms of aggravating and mitigating factors. Who at Plymouth State will ever enter into being a part of our most sacred democratic process and what will that do to a court's promise to bring justice?”
Attorneys retained by the elder Fischler were equally scathing in a letter to PSU demanding that all of its sanctions be reversed. It stated, in part:
The requirement that Prof. Fischler take a Title IX class and “work closely” with others to address their concerns about his alleged misdeeds is Orwellian in concept, and uncomfortably reminiscent of the re-education camps utilized as part of the Chinese Cultural Revolution. It is not Prof. Fischler who needs to be educated. He has as much understanding of and commitment to Title IX as any other member of the PSU community, and a longer record of working against discrimination.
What is really needed is a greater appreciation of the right to free expression. It is also worth considering the precedential significance of these requirements on academic discourse in general. Controversial speech is the lifeblood of academia. But who is going to be willing to express an unpopular opinion if in response to public disapproval, he or she is forced to take a class, and satisfy the concerns of their critics as a condition of continued teaching. That approach is not consistent with a school that values academic freedom.
Nor is it consistent with PSU’s faculty handbook, which explicitly affirms that “faculty members are entitled to pursue knowledge wherever it lies, to freedom of discussion in their areas of academic competency, and to their rights and responsibilities as citizens,” later adding that “college or university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free of institutional censorship or discipline.” No speech is more closely tied to the role of citizen than earnest participation in the state’s attempt to justly try and sentence a fellow citizen.
Perhaps the sentence ultimately handed down was too light. (If so, blame ultimately rests with the judge in the case.) Regardless, if noisy, umbrage-taking mobs succeed in this case, and others like it—if the overly broad social stigma that they callously wield discourages more and more citizens from offering honest, accurate information about those accused of serious crimes—the harms done are very likely to exceed any benefit gained, and to fall most heavily on marginalized Americans.
As Zach Greenberg of FIRE put it:
Members of the public are undoubtedly free to conclude, and to express their conclusion, that a faculty member’s opinions—whether they concern a criminal defendant, the justice system, or any number of subjects—are unwise or unfounded. If, however, the court of opinion is permitted to dictate whether those who share their opinions with a court of law are to remain employed, it will cast a chilling effect that will ultimately inure to the detriment of defendants in the criminal justice system.
Thankfully, noisy mobs can’t themselves fire or sanction anyone at their place of employment. Unfortunately, too many institutional leaders would sooner cave to the typically fleeting pressure that mobs apply than resolutely uphold even clear-cut legal obligations to the Constitution.
Flagrant free-speech violations ought to do more damage to PSU and its president than defending the right of faculty to honestly participate in criminal trials without being punished at work. But until authoritarian pressure by mobs on the ideological right and left and the deference that encourages their excesses are more consistently challenged, that won’t be the case.
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