Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 124 of 139
issuing disciplinary measures where appropriate and remove, by termination if appropriate, the employee(s) if there is a failure or refusal to comply with the mandate.” Id. In support of their argument, Defendants distort this mechanism as one which “reserve[es] punishment to only examples where an employee refuses to correct prohibited teaching.” ECF No. 52 at 39, in Case No.: 4:22cv304-MW/MAF. But as the regulation’s plain language states, removal—including termination—may also occur if there is merely a “failure” to comply with the university’s mandate. This “failure” requires no affirmative knowing or willful act on the professor’s part. Instead, a professor may mistakenly overstep the State’s viewpoint ban in a good-faith attempt to teach “objectively”—and can be fired as a result.
As this Court noted in Honeyfund, things are not as simple as Defendants portray. See 2022 WL 3486962, at *13 (“To start, few terms are as loaded and contested as ‘objective.’ And many would suggest that it is impossible to discuss a concept—or anything for that matter—‘as perceived without distortion by personal feelings, prejudice, or interpretation.’ This is especially true when discussing concepts rooted in historical phenomena, like systemic racism, critical race theory, white privilege, and male privilege.”). “As Justice Stevens observed, ‘[i]t is hardly a novel insight that history is not an objective science … . The historian must choose which pieces to credit and which to discount, and then must try to assemble them into a coherent whole.’ ” Id. (quoting McDonald v. City of Chi., 561 U.S. 742, 907
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