FIRE isn’t alone in celebrating the U.S. Court of Appeals for the Ninth Circuit’s decision earlier this month in Demers v. Austin, a case in which the federal appellate court ruled that the First Amendment protected the academic speech of Washington State University professor David Demers. As we wrote, the decision is a significant win for faculty speech rights given the legal landscape following the Supreme Court’s 2006 decision in Garcetti v. Ceballos. In Garcetti, the Supreme Court held that public employees may be disciplined for “speech made pursuant to the employee’s official duties” but left open the question of whether this holding applied to faculty members at public schools. Rejecting the application of this precedent in higher education, the Ninth Circuit decided in Demers that “Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.”
In a commentary published today by the The Chronicle of Higher Education, FIRE’s sentiments are echoed by Thomas Sullivan, president of the University of Vermont, and Lawrence White, vice president and general counsel at the University of Delaware. Sullivan and White take note of both the Demers case and the U.S. Court of the Appeals for the Fourth Circuit’s 2011 decision in Adams v. Trustees of the University of North Carolina – Wilmington, another significant victory for academic freedom that we’ve covered extensively.
In light of these cases, write Sullivan and White, “the tide appears to have turned” for faculty speech rights, post-Garcetti:
The trend is encouraging. As a legal principle and sound postulate of institutional governance, academic freedom should be deemed to protect the expression of faculty views even when they are deemed by some to be unhelpful or provocatively stated. This is especially compelling given the uniqueness of our universities as marketplaces of ideas where we seek to discover new knowledge and understanding and make it available to others.
To the extent that Garcetti created any confusion about the academic-freedom rights of faculty members, nothing prohibits a university from embracing academic freedom of its own accord without waiting for the definitive judicial guidance that has so far been slow to come.
It’s great to see two leaders at public universities speak so unequivocally about the importance of protecting academic freedom and faculty speech rights. American academia could use some more perspectives along these lines, especially when threats to First Amendment rights can come from within the ranks of faculty themselves.
You can check out the article by Sullivan and White in the Chronicle today.