Subpoenas for All!

An Update on the Scott Gerber Case

Peter Wood

A year ago, I wrote a letter to Dr. Melissa J. Baumann, the president of Ohio Northern University, in which I urged her to intervene on behalf of Professor Scott Gerber, one of her faculty members, at ONU’s Law School.

Gerber was subjected to an unprecedented act by the Law School dean. In April 2023, he was forcibly removed from his class and taken to the dean's office under armed escort. Without any explanation, the dean demanded Gerber’s resignation. Gerber shared his ordeal on the op-ed page of the Wall Street Journal. In the following months, various academic freedom-minded organizations, including my own, sought to resolve the situation in Gerber’s favor. It soon emerged that President Baumann was supporting the dean's actions, leaving Gerber in a deeply unjust situation.

What had Gerber done to provoke such a departure from academic norms? Nothing more than to criticize the diversity, equity, and inclusion (DEI) regime that ONU had imposed top-down on the university. Gerber, who is a distinguished scholar by any measure of quality and quantity, and an outstanding and decorated educator, simply fell on the wrong side of a newly invented ideological litmus test.

I have never met Gerber, but as the matter lingered with no constructive solution in sight, I began to correspond with him and to write about his situation first in the form of letters and then as published articles. By my count, I commented on his situation seven times from May to December 2023. He and I also exchanged quite a few emails over this period. For a while, he was hard-pressed to find an attorney to represent him. He eventually acquired good legal representation but is still without a job. His case is before a local court in Ohio.

I had not heard much about it recently, but yesterday, a New York City sheriff was seeking me. At first, I didn’t know why, but then contacts in Ohio told me that the attorneys representing Ohio Northern University in the case have launched a fishing expedition to subpoena records from several individuals (and organizations) that have argued against the university’s position. To my knowledge, none of us who have been subpoenaed have had any involvement in the legal pleadings.

Yes, I regard the behavior of President Baumann, the ONU board, the law dean, and some of the other UNU functionaries as shabby. I believe they violated the law in terminating Gerber’s employment without just cause and likely also violated civil rights laws to implement DEI policies. But I have nothing material to add to the case.

In the fifteen years I have served as president of the National Association of Scholars, I have been involved in many cases in which a faculty member’s academic freedom rights have been abridged by aggressive administrators. I have written numerous letters and articles all within the collegial spirit of trying to resolve cases short of the involvement of the courts. That hope wasn’t realized in this instance, but what really stands out is that this is the first time the instruments of the law have been turned back against me.

I am not the victim here. Professor Gerber is and to some extent the students of ONU Law School who have been denied his services. But I take the subpoena as further evidence of ONU's recklessness in this matter. What kind of educational institution goes in search of a third party’s correspondence—a third party that is guilty merely of stating in public forums the plain facts of what happened?

The term much in circulation these days is “lawfare,” which means roughly to abuse the process of the law to torment one’s opponents. I don’t feel particularly tormented, at least not yet, but if it were possible for my opinion of ONU to sink further, it has done so.

May I suggest to President Baumann and to the members of the ONU board that you are doing your institution no favor by behaving this way. ONU is making itself nationally known as a college that responds to both faculty dissent and external criticism with pettiness and attempts to intimidate. Some might call that a loser’s mentality.

Photo by Tingey Injury Law Firm on Unsplash

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