Free bird

Frieder v. Morehead State Univ., No. 13-6595 (6th Cir. Oct. 24, 2014).

Morehead State University hired Braden Frieder as a tenure-track assistant professor of art history. After a probation period, the faculty would vote on whether to grant him tenure. 

The student reviews of Frieder’s art history class were, in the words of the Sixth Circuit, “consistently abysmal.” At the end of the probation period, tenure was denied. 

Frieder sued, claiming that the University denied him tenure in retaliation against Frieder’s free speech—specifically, Frieder’s middle finger. For when telling his students about a painter who used birds as symbols of sexual sin, Frieder showed his students another kind of bird. Frieder says that this motivated the University to deny him tenure, thus violating his constitutional right of free speech. 

The Sixth Circuit says that even if the Constitution protected Frieder’s gesture as free speech, there’s no evidence that the University denied him tenure for making it. Frieder was not disciplined for showing his students the bird. At most, he was gently admonished to use his “professional judgment” when teaching. So, because showing students the bird didn’t motivate the tenure denial, the district court’s dismissal of Frieder’s claim against the University is affirmed.