By William H. Honan
The New York Times, September 17, 1994
A Federal judge found yesterday that the University of New Hampshire acted wrongly when it suspended a professor for sexual harassment after seven female students complained about comments he had made during a writing class.
The judge, Shane Devine of Federal District Court in Concord, N.H., ordered the university to reinstate the professor, J.Donald Silva, who has not been allowed to teach there for two years.
The case of Professor Silva had been widely discussed because his academic freedom was pitted against a university’s rules on sexual harassment. Codes to limit offensive speech have been drafted at many educational institutions around the country in recent years, and many of those codes have been challenged, as in the Silva case, on First Amendment grounds. The results from the courts have been mixed.
The Silva case centered on two comments by the professor, who is also a longtime pastor at a New Hampshire church, during a class on technical writing. One was: “Focus is like sex. You seek a target. You zero in on your subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one.”
Later in the lecture, when discussing similes, Professor Silva paraphrased the way the belly dancer Little Egypt had once defined her vocation. “Belly dancing,” the professor said, “is like Jell-O on a plate with a vibrator under the plate.”
In his ruling yesterday, Judge Devine found “legitimate pedagogical reasons” for the professor’s choice of language and said the university had violated his constitutional right to free speech by punishing him for exercising that right.
Judge Devine, nominated to the Federal bench by President Jimmy Carter in 1978, granted Professor Silva an injunction ordering his reinstatement. The decision has no bearing on the back pay or the damages that the professor also seeks from the university, and so the case will proceed to trial if the parties do not settle.
“I’ll be tickled pink to go back to teaching,” said Professor Silva, a 59-year-old tenured professor of English and writing at the Thompson School of Applied Science at the university, in Durham.
His lawyer, Paul McEachern, said: “What’s important about the ruling is that by sending my client back to school, the judge has ruled it’s likely that Professor Silva will prevail when it comes to a hearing. Also, the judge ruled decisively on the First Amendment question.
Wilbur A. Glahn III., a lawyer for the university, said that he was considering whether to appeal the ruling but that Professor Silva would be reinstated pending the outcome of any appeal.
Professor Silva’s problems began two years ago, soon after he made the classroom comments in question. When seven women in the class complained, he was suspended with pay.
Then, last year, a student-led university tribunal found that the comments had indeed violated the university’s policy on verbal sexual harassment, and hs pay was cut off as the suspension continued. He was ordered to apologize to the students and to undertake university-approved-counseling.
Instead, last October, he filed suit, seeking not only reinstatement but also $42,000 in back pay and damages for an unspecified sum.
Asked after yesterday’s decision whether his experience would prompt him to speak guardedly in the future, Professor Silva said: “A writing class should be a place where all sorts of language can be used. I stood tall for academic freedom and the First Amendment, and I intend to continue.”