A Matter of Public Concern

A professor who accused Auburn University officials of retaliating against him for blowing the whistle on the athletics program intervening in academics prevailed in court last week—in part. An Alabama jury awarded Michael Stern $645,837 in damages, finding after a two-week trial that Stern’s former dean illegally punished him for speaking out. The jury did not agree with Stern’s similar claims against two former provosts, however.

Stern, an associate professor of economics, said Friday, “I was very pleased with the outcome of the trial, and I believe strongly in our jury system. The First Amendment and academic freedom are the cornerstones of higher education.”

Stern was removed as chair of his department in 2018 but has remained a professor at Auburn. He said he looks “forward to working with Auburn University, charting a new and positive path toward achieving our educational mission.”

Auburn said in a statement that it “remains committed to protecting and supporting the free speech rights of all employees. While we disagree with the [trial’s] outcome, the university respects the judicial process. Beyond that, it is our policy not to discuss specific personnel matters publicly.”

‘Pretty Low Odds’

Stern first sued Auburn in federal court in 2018. According to the original lawsuit, Stern became something of a thorn in Auburn’s side in 2008, when he worked with a local reporter on a story alleging that Auburn was accepting money from the Charles Koch Foundation in ways that undermined the economics department’s academic integrity. In retaliation for Stern’s internal and external activism, Auburn in 2009 suddenly moved the department of economics out of the College of Business and into the College of Liberal Arts, the lawsuit said. Around this time, Stern’s new dean allegedly opposed his tenure bid, as did the provost, contradicting the positive recommendation of his department. Stern’s tenure was granted by appeal, in 2010.

Later that year, Stern was elected chair of the economics department. He eventually developed a good rapport with his new dean, but that dean was “run off” in 2013 over a then-quiet dispute about whether to keep the public administration major open at the behest of Auburn’s athletics programs, according to the lawsuit. A new dean, Joseph Aistrup, was appointed.

Relatedly, in 2014, Auburn’s faculty athletics representative delivered a presentation to the University Senate asserting there was no clustering of Auburn athletes in any major, the lawsuit said. Stern challenged this idea, arguing that an unusual number of students on the football team seemed to be studying public administration. Following the meeting, Aistrup, the dean, allegedly told Stern he couldn’t “believe you mentioned our program [meaning public administration]. I’m going to hear about this.”

The next day, the then chair of the political science department—which houses the public administration major—called Stern to ask him about what he’d said at the Senate meeting, Stern alleged. The chair then told Stern that the department had attempted to discontinue the public administration major, but that Auburn’s then provost “wouldn’t let them,” according to the lawsuit. That evening, Aistrup emailed Stern a message on “diplomacy” that Stern thought was intended to intimidate him, and which he shared with news media.

A few weeks later, during Stern’s annual performance review, Aistrup allegedly said that he wanted to replace Stern as chair with an “externally hired” department head, funded by the provost. Stern said that the dean pushed him to step down as chair, even though he’d been re-elected by his colleagues, and that he declined.

Stern remained quiet about the public administration issue for the remainder of the year, the lawsuit said. Football player and mathematician John Urschel, who at the time was playing for the NFL’s Baltimore Ravens and who has no connection to Auburn, raised the issue in late 2014, however, arguing in a blog post that that the high density of Auburn players majoring in public administration only had a one in three undecillion chance of occurring randomly.

"A stunning 23 out of the 48 upperclassmen student athlete football players are enrolled in public administration," Urschel wrote. "Logically, it must be a fairly common major, right? This is where things take a turn for the worse. As of last spring, only 88 of the 11,402 upperclassmen in the whole university were majoring in public administration!" 

In other words, Stern's lawsuit said, “pretty low odds" that this was random.

In 2015, Auburn’s faculty athletics representative again presented to the Senate and continued to “intentionally deceive” about the public administration major, Stern alleged. Stern said he challenged the representative once more, citing Urschel’s blog, and that soon other concerned faculty members began speaking with him—even “leaking” documents related to the attempted closure of the public administration major. Stern requested documents of his own from the university counsel via public records requests and attempted to speak to the Senate about it. He was denied a platform, however—allegedly because the Senate’s steering committee feared the provost at the time, Timothy Boosinger. Stern alleged that Aistrup tried to intimidate him into silence, confronting him multiple times at an arts and sciences retreat later in 2015 and suggesting that life could get “tough” for Stern in the college.

Going Public

Stern’s freedom of information request turned up evidence that the athletics program had in fact advocated against closing the public administration major going back to 2012, despite a curriculum committee recommendation that it be shuttered. Stern shared some of this information with The Wall Street Journal, which published an explosive article just ahead of 2015’s football season. The article said that in 2013 about half of students majoring in public administration at Auburn played sports, including nearly all the top players on the football team. The Journal quoted emails from athletics officials internally lobbying for the major, as well. In one case, an official wrote that “If the public administration program is eliminated, the [graduation success rate] numbers for our student-athletes will likely decline.” In another, an athletics official seemed to be offering money to fund the public administration program, which Stern considered an “institutional bribe.” Stern was quoted in the Journal as describing Auburn athletics as a “second university” in its power.

That fall, Stern received a 1 percent raise and 1 percent merit bonus, which he said was “extremely small.” The next spring, he was unanimously re-elected as chair of economics. But Aistrup allegedly left his formal reappointment up in the air, despite the fact that Stern received a positive five-year review as chair.

In the fall of 2016, with his reappointment still an open question, Stern said he received another low raise and merit bonus relative to his peers. He said he appealed to Auburn’s then president, George Jay Gogue, for help, and that Gogue in 2017 proposed a new administrative structure in which Stern would report not to Aistrup, the dean, but an associate provost. Another part of his plan involved making the economics department an independent division, apart from arts and sciences. As Stern was working on the independent school proposal, his most recent merit raise was increased, but he was informed that he would not be receiving an annual evaluation for 2016. No reason was given.

Boosinger, the provost, allegedly objected to the independent economics division plan in a meeting with Stern and Gogue in mid-2017. But Gogue, who was retiring, said that the plan should move forward under the next president, according to the lawsuit.

Within days of Gogue’s departure, however, Boosinger indicated that he would be keeping economics in arts and sciences. Stern met with the new president, Steven Leath (who has since left Auburn), to discuss the matter. But he said Leath was distracted by the breaking Chuck Person scandal, in which a former Auburn assistant basketball coach was accused and eventually convicted of taking bribes to steer top players toward a financial adviser who was actually a government informant.

In the meantime, the economics department, which was in administrative limbo, needed a new hire authorized and guidance on how to proceed with tenure and promotion applications.

Frustrated, Stern again began talking to news media about what was happening at Auburn. He also continued to speak internally about the public administration major.

‘Substantial Victory’

In May of 2018, Stern said, Auburn cut off his access to the administrative computer system. Aistrup also allegedly “stormed into” Stern’s office and demanded that he sign an unusual-looking annual evaluation, and promptly removed Stern as chair of economics. The dean also allegedly removed the economics department’s graduate program officer at the same time.

Stern accused Auburn of retaliation for exercising his First Amendment rights. He later amended his complaint to name individual administrators, including Aistrup and Boosinger, and to allege conspiracy among them.

Aistrup, who is currently serving as a professor of political science, did not respond to a request for comment.

A federal judge dismissed Stern’s claims of conspiracy in 2021, but his First Amendment retaliation claim survived.

Jurors found that Stern’s statements about the clustering of athletes in the public administration major were a motivating factor in Aistrup’s decision to remove Stern as chair, and that Aistrup’s actions damaged Stern. They awarded Stern nearly $146,000 in lost wages and benefits and an additional $500,000 based on the finding that Aistrup acted with malice or reckless indifferences to Stern’s federally protected rights.

Public administration remains an active major within the political science department at Auburn.

Jonathan Turley, J. B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University, wrote about the case on his blog, saying, “The decision is a substantial victory for free speech. It amplifies earlier cases affirming a ‘public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.’”

While courts have ruled that “a public employee’s right to freedom of speech is not absolute,” he said, the U.S. Supreme Court has decided that the state must strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’”

Turley added that “there seemed little balance struck in this case and the jury responded by hitting Auburn with punitive damages.”