Rutgers reexamines decision on racially charged Facebook posts made by history professor

Rutgers is reexamining its determination that James Livingston, a professor in the Department of History, violated the University's discrimination and harassment policy following a series of racially-charged Facebook posts. 

In a letter dated Aug. 29, University President Robert L. Barchi informed School of Arts and Sciences Executive Dean Peter March that he has remanded the report finding Livingston's comments in violation of the University Policy Prohibiting Discrimination and Harassment to the Rutgers Office of Employment Equity (OEE).

"I have remanded the report to the Office of Employment Equity and have asked the Office to more rigorously analyze the facts and assumptions underlying its conclusions," Barchi said according to the letter.

The letter, obtained by The Daily Targum, began with Barchi acknowledging the posts made by Livingston, and complaints received by the University about said posts, which led to an investigation by OEE into whether the professor's Facebook comments violated the University Policy Prohibiting Discrimination and Harassment.

Barchi also said the report was released to March and Livingston before Barchi had been made aware of its contents, according to the letter.

The original investigation found that Livingston’s comments were in violation of the policy, as reported by the Targum. The 10-page report was made public by the Foundation for Individual Rights in Education (FIRE) and dated July 31.

On Aug. 10, Livingston’s appeal for the University to reevaluate its decision was denied. In a letter detailing the University's findings, Harry M. Agnostak, associate vice president for Human Resources for Rutgers Labor Relations, wrote, "You have provided no cognizable evidence or basis by which to disturb the findings of the investigator ...”

On Aug. 20, FIRE wrote to University administrators demanding they reverse their decision against Livingston and protect faculty members’ constitutional right to speak as private citizens on matters of public concern, according to TheFire website.

In the letter, Marieke Tuthill Beck-Coon, director of Litigation for FIRE, argued that in accordance with Supreme Court precedent, an employee’s speech is protected if they are speaking as a citizen, it involves matter of public concern or the government lacks "adequate justification" for treating the employee differently than the general public. 

OEE looked at two rubrics in determining whether Livingston violated University policy in its original investigation: First Amendment speech protections and the University’s policy, according to the report. Should his speech fall beyond protected speech, the question turned to whether the statements rose to the level of harassment or discrimination.

The original report found that Livingston’s comments fell outside of First Amendment protected speech, because they inflicted damage to the University’s reputation.

While his statements satisfied two prongs of the OEE analysis — public concern and speech made outside of his job duties — his speech was not afforded blanket protection and was weighed against its impact on the University’s mission, according to the report.

“It is reasonable to predict that the University’s core function of educating a diverse student body may be disrupted by Professor Livingston’s public statements,” the report stated. “Indeed, the disruption has already been felt, as the University has received numerous complaints about Professor Livingston’s 'racism.' His views have likewise been publicized and criticized by prominent media outlets." 

The report then considered Livingston’s statements against the University’s policy and found him in violation of it.

Barchi said in the letter that he has also asked the Rutgers Office of the General Counsel, a legal advisor to the University, to assemble an advisory group to provide guidance on alleged policy violations that involve First Amendment and academic freedom questions, according to the letter.

The group will consist of First Amendment and academic freedom scholars, attorneys and Rutgers faculty, according to the letter. It will provide guidance to the Office of Employment Equity during its review of Livingston’s comments.

“Like many in our community, I found that Professor Livingston's comments showed exceptionally poor judgment, were offensive, and, despite the professor's claims of satire, were not at all funny,” Barchi said in the letter. “At the same time, few values are as important to the University as the protection of our First Amendment rights—even when the speech we are protecting is insensitive and reckless.”

No statement has been made at the moment as to what punishment, if any, Livingston will receive.