Professor fired for using hypotheticals about pregnancy, immigration loses First Amendment case

A professor who used hypothetical situations to challenge her students’ thinking in a business law class has lost her long-running legal battle with Kean University in New Jersey.

Cheryl Borowski, an adjunct professor of business law, was fired in 2016 after students claimed to be offended by her teaching style. On July 1, a federal court ruled against her First Amendment lawsuit, saying her speech was not protected because it occurred in her role as a public university employee.

Borowski reportedly used the Socratic method to present controversial hypotheticals rooted in real legal debates. Among them: whether employers could legally favor male employees over pregnant women for productivity reasons, or refuse to hire pregnant women to avoid exposing them to hazardous materials.

She also addressed the issue of illegal immigration and the need for international workers to have green cards, according to her legal complaint.

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Despite stating these hypotheticals were not her personal beliefs but thought experiments, Kean claimed her approach violated the New Jersey State Prohibiting Discrimination in the Workplace Policy. Judge William Martini agreed, ruling that classroom speech from public employees is not generally protected under the First Amendment.

Legal experts warned the decision sends a dangerous message to educators who rely on open inquiry in the classroom.

“This probably should have been a legitimate use of the professor’s academic freedom rights,” Graham Piro, an attorney with the Foundation for Individual Rights and Expression, told Campus Reform. 

As long as professors aren’t “targeting specific students,” Piro said, “academic freedom should protect difficult hypothetical questions.”

Borowski’s complaint stated she informed students each semester about her “devil’s advocate” style and that her prompts were based on textbook content and legal precedent. Nonetheless, students filed repeated complaints, interpreting her questions as based upon her personal views.

Borowski pursued multiple appeals before filing a federal lawsuit. However, Judge Martini cited the 2006 Supreme Court decision, Garcetti v. Ceballos, which limits public employees’ speech protections when speaking in an official capacity.

Piro also told Campus Reform that FIRE frequently sees universities cracking down on professors for unpopular or challenging speech. He pointed to the 2019 investigation of Laurie Sheck at The New School in New York City after she quoted a racial slur in a James Baldwin essay.

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Piro also noted that several justices in Garcetti acknowledged a potential academic exception, recognizing the need for faculty to speak freely in the classroom.

“We would just urge universities to allow professors to be mindful of academic freedom and the allowances,” he said.

Campus Reform contacted Kean University for comment. This article will be updated accordingly.