A Troubling New MO? (opinion)

Recent events suggest that university leaders may be falling into a troubling new pattern: firing tenure-line faculty first before settling with them later. While this approach may serve institutions’ short-term needs, it inflicts profound harm on the faculty who are affected—and it also promises to cause long-term damage to the universities themselves.

In fall 2025, academics were among the many types of workers who discovered that their workplace speech rights were not what they had seemed to be when a number of professors (as many as 40, according to one estimate) lost their jobs for social media commentary discussing the assassination of conservative political activist Charlie Kirk.

But—unusually for such workplace speech freedom disputes—the list of affected workers also included individuals in the general labor force. Besides academics, the post-Kirk terminations also affected a literacy nonprofit worker in Wisconsin, a paramedic and firefighter in Texas, a cybersecurity professional in New York, a respiratory therapist in Kentucky, a burger restaurant manager in Illinois, a flight attendant in Georgia and a restaurant worker in California, among others.

The terminations drew national attention because of their sheer number—in November, Reuters estimated that more than 600 people had been fired, suspended, investigated or disciplined by their employers for Kirk-related commentary—along with their wide range across industry lines and political contexts. Nevertheless, within academia, what was actually unusual about the post-Kirk terminations was how they unfolded—not the simple fact that they occurred.

That’s because academia is no stranger to workplace speech controversies. Despite university commitments to academic freedom as well as public perceptions that academics are immune from workplace discipline, professors have long been disciplined and even terminated for their expressive activity. This has happened for decades and across ideological perspectives. Immediately before the Kirk terminations, some professors were punished—and at least one tenured professor, Maura Finkelstein, was fired—for speech relating to Israel/Palestine. Earlier in the 20th century, during the aftermath of the Red Scare, educators were fired for refusing to swear loyalty oaths.

In fact, tenure as an employment protection is itself deeply imbricated with the long history of restrictions on academic speech. The usual story of tenure’s origins is that the practice was invented by the American Association of University Professors in 1940 after a series of events in which faculty were fired for their expressive activity. The most famous of these events involved the economist Edward A. Ross, the philanthropist Jane Stanford and disagreements between the two on issues ranging from the “free silver” movement to presidential candidates. In 1900, Ross was terminated from his Stanford position at Jane Stanford’s insistence; Ross’s termination prompted his colleague Arthur Lovejoy to quit Stanford, move to Johns Hopkins University and co-found the AAUP.

Forty years after the Ross incident, AAUP published the Statement of Principles that underpins the practice of tenure as we know it today.

(As I’ve argued elsewhere, this origin story is true but partial: “The idea of tenure may have emerged from academic freedom disputes, but it became an industry practice because it was used to recruit and retain skilled knowledge workers.”)

Notwithstanding this long history of curtailing academic speech, the post-Kirk terminations mark a watershed moment because, in part, many of these terminations involved nothing that can be reasonably characterized as due process.

Consider the example of Joshua Bregy, a climate scientist hired by Clemson University, in South Carolina, as an assistant professor. On the day Kirk was assassinated, Sept. 10, 2025, Bregy reposted someone else’s comment on his Facebook account. The comment that he reposted criticized Kirk’s well-known willingness to accept gun deaths for the sake of protecting gun rights, while simultaneously expressing sympathy for Kirk’s family and friends. The account from which Bregy reposted the comment was a personal one that he did not use “to interact with current students or university colleagues” and was set to allow “only ‘friends’ to view his posts.”

Bregy made his post private within a few hours and deleted it on the morning of Sept. 11 at the request of Clemson officials—but it was already too late. Sometime after Bregy had deleted the post, Clemson College Republicans shared it via X, tagging ​​@LibsofTikTok as well as the official X accounts of Clemson University and Clemson’s president. Soon, Bregy’s post, along with a montage of other photos taken from his social media presence, reached “millions of users.”

Over three days, Clemson issued three statements via X. On Sept. 12, the Clemson account called for civility but defended the First Amendment right to free speech. On Sept. 13, under pressure from state lawmakers, the university promised a “full review” of the situation. On Sept. 15, Clemson announced that it had “terminated an employee due to their social media posts” and that “two faculty members now have been removed from their teaching duties.”

That same day, Bregy was fired via a “5-minute-long telephone call” with Clemson’s provost. On Sept. 16, he received a termination letter that justified his dismissal on the grounds of “blatantly unprofessional conduct” that was “seriously prejudicial to the University.”

The entire ordeal lasted six days from beginning to end.

Bregy may have been pretenure at the time he was terminated, but he was still entitled to certain protections by law.

To begin with, as a professor at a state university, Bregy was a public employee protected by the First Amendment. Even though First Amendment protections for public employee speech have narrowed over the years, a court was likely to find that Bregy’s commentary on a current events issue via a personal social media account was still constitutionally protected expression. Bregy did not post his comment “pursuant to his duties” as a professor of climate science. And the content of his post did not fall within any generally applicable exceptions to the First Amendment, such as defamation or a true threat of violence.

Moreover, most pretenure faculty qualify as “just cause” employees because they are employed via definite-duration contracts that last one, two or three years. These relationships can be easily ended simply by declining to renew the contracts at their natural expiration—and, for pretenure faculty who are unsuccessful in their tenure bids, this is precisely what happens. (The additional year of affiliation that many but not all institutions offer in these scenarios is a customary practice rather than a legal entitlement.)

Unlike nonrenewal, in-service termination of a just cause employee requires the employer to articulate (and if challenged, to defend in court) some type of just cause for the dismissal. That requirement is why Bregy was told he was being fired for “blatantly unprofessional conduct” that was “seriously prejudicial to the University.” But—although it’s impossible to be certain about this as an outsider to the litigation—it seems likely that Clemson would have faced some challenges in defending its position on just cause.

Bregy’s complaint notes that, as far as anyone can tell, Clemson officials “did not contact or consult with any of Dr. Bregy’s students or colleagues regarding the impact, if any, of his Facebook post.” It goes on to describe how “a member of the Clemson College Republicans who [was] also [a] student of Dr. Bregy’s even reached out to Dr. Bregy by email to explain that he opposed the views expressed in the Facebook post but still thought it would be wrong if he got in trouble for his speech.”

It wasn’t surprising that Clemson settled with Joshua Bregy. It wasn’t even surprising that Clemson put itself into a position where it had to settle with Joshua Bregy. But what will be surprising is if university leaders, especially their general counsels, continue to pursue a strategy that is unlikely to succeed.

Of the hundreds of workers in the general labor force who were fired or punished for Kirk-related commentary, few to none have regained their jobs or won settlements. But of the few dozen professors who were fired for the same reason, those who were tenure-stream or tenured seem be having success in court. Although this tracking is difficult to achieve, by mid-January, it appears that “at least three fired professors have reclaimed their jobs, and three more have had suspensions lifted or investigations concluded in their favor.” Among these, Darren Michael, a tenured professor of theater at Austin Peay State University in Tennessee, was reinstated to his position and awarded a $500,000 settlement.

Firing faculty in violation of their legal rights is expensive because, after all, litigation is not cheap—and neither are settlements. But it is also bad crisis management because it is shortsighted. Universities that are known to adopt a “fire first” policy are likely to lose some employees who decamp for safer, if not greener, pastures, and they are guaranteed to lose the goodwill of employees who stay. That goodwill is what keeps faculty in place, recruiting the best students and colleagues, and fulfilling the academic mission.