Diverse Docket: Morehead State Unanimous Winner on Appeal

Morehead State University didn’t violate First Amendment rights or commit disability discrimination when it denied tenure to an assistant professor of art history, a unanimous federal appeals panel has ruled.

The evidence showed that Morehead denied tenure to Braden Frieder based solely on his “poor student ratings and disorganization,” the 6th Circuit Court of Appeals said in refusing to reinstate a retaliation and discrimination suit.

The university’s action wasn’t based on the fact that Frieder made an obscene gesture ― a “one-finger salute,” as Judge Jeffrey Sutton wrote ― in class, and it was unaware of his bipolar disorder when it made its tenure decision, the court said.

Frieder began a tenure-track position in 2006, it said, and had difficulty teaching, although he excelled at service and professional achievement. “The reviews of his introductory art history class were consistently abysmal,” and advice from his evaluators on how to improve “did not stick.”

The provost and president agreed with the evaluators’ vote against tenure.

The suit accused the university of wrongfully denying tenure based on his “idiosyncratic teaching methods” and argued that using his middle finger during a lesson about a painter who used birds to symbolize sexual sin in class was constitutionally protected speech.