Academic Freedom Critical to Unanimous Ninth Circuit Opinion Protecting Professor’s Speech

May 24, 2010

Yesterday’s unanimous Ninth Circuit opinion in Rodriguez v. Maricopa County Community College District, holding that three contentious e-mails sent by a professor to his coworkers were protected by the First Amendment, provided critical judicial endorsement for the value of academic freedom. The federal appellate court’s safeguarding of a college district’s ability to be intellectually diverse and open-minded comes at a time when it is much needed, after Harvard Law School recently attempted to sanitize its campus from exploration of unpopular ideas.

Unlike Harvard Law, the Maricopa County Community College District (MCCCD) appreciated the rights of one of its faculty to express unpopular ideas in an open e-mail forum, and the Ninth Circuit approved. We offered an overview of the facts and holding of Rodriguez here. In brief, a group of Hispanic employees of the MCCCD sued the district for failing to punish a math professor who sent racially charged e-mails to all of his coworkers. The professor’s e-mails, which some employees found offensive and racially insensitive, described "the superiority of Western Civilization" and criticized America’s current "multicultural stupor." These e-mails sparked a debate among coworkers and a student protest, and ultimately led to a lawsuit against the MCCCD.

The Ninth Circuit held that the defendants were not liable for failing to punish the professor, since his speech did not constitute unlawful harassment. In doing so, the court elevated academic freedom both for professors and for the institution as a whole.

First, the court noted the importance of permitting professors to articulate non-mainstream, provocative, and offensive views in order to facilitate a diversity of ideas on college campuses. The panel, which included former Supreme Court Justice Sandra Day O’Connor, sitting by designation, quoted a prior Ninth Circuit opinion for the principle that "the desire to maintain a sedate academic environment . . . does not justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms." Adamian v. Jacobsen, 523 F.2d 929, 934 (9th Cir. 1975).

In addition to recognizing professors’ academic freedom, the court of appeals upheld the MCCCD’s institutional academic freedom. The court deferred to the MCCCD’s methods of handling e-mails that offend employees. Universities cannot be required to police their employees whenever their language or unmeasured views are deemed offensive. Fear of lawsuits would lead to hiring the least controversial professors and ultimately to a university environment that is sterile instead of intellectually vibrant. According to the Ninth Circuit,

The academy’s freedom to make such decisions without excessive judicial oversight is an "essential" part of academic liberty and a "special concern of the First Amendment." If colleges are forced to act as the hall monitors of academia, subject to constant threats of litigation both from professors who wish to speak and listeners who wish to have them silenced, "many school districts would undoubtedly prefer to ‘steer far’ from any controversial professor and instead substitute ‘safe’ ones in order to reduce the possibility of civil liability and the expensive and time-consuming burdens of a lawsuit." To afford academic speech the breathing room that it requires, courts must defer to colleges’ decisions to err on the side of academic freedom. Otherwise, schools will inevitably reassess whether hiring a lightning rod like Kehowskior, for that matter, Larry Summers or Cornel Westis worth the trouble. [Internal citations omitted.]

The Ninth Circuit’s eloquent articulation of the value of both individual and institutional academic freedom should ease the concerns of administrators who wish to hire professors outside of the mainstream, in any direction. As the court of appeals noted, "[w]ithout the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched."

FIRE congratulates the MCCCD for braving a lawsuit rather than stifling a professor for expressing unpopular but protected speech.