As reported by the The Chronicle of Higher Education, a scientist alleging that Louisiana State University fired him due to comments he made as a private citizen has been allowed to proceed with his First Amendment retaliation suit. The ruling of the United States District Court for the Middle District of Louisiana against LSU’s summary judgment motion can be found here (.pdf). Professors Eugene Volokh and Paul Horwitz have already commented on the case, here and here.
Ivor van Heerden, an engineer for LSU at the Louisiana Geological Survey and the College of Engineering, had publicly criticized the U.S. Army Corps of Engineers for their design and construction of the levees that broke following Hurricane Katrina. LSU promptly fired him, and has claimed that his comments regarding the levees were work-related and therefore unprotected by the First Amendment.
In his ruling, Judge James J. Brady disagreed, noting that "LSU’s objective actions appear to have been calculated to disavow itself of van Heerden’s statements regarding the cause of levee failure." By telling van Heerden not to speak to the media, for example, LSU ensured that any such media contact was outside the scope of van Heerden’s employment, and thus "protected speech." University faculty, take note: If your university disavows your speech and tells you not to speak to the media, this decision suggests that your First Amendment right to speak as a private citizen is now strengthened.
At FIRE, we have blogged about Garcetti v. Caballos, 547 U.S. 410 (2006) many times before. In Garcetti, the Court held that when public employees engage in expressive activity pursuant to their official duties, that speech is normally not protected by the First Amendment. FIRE along with numerous commentators have shared the concerns raised in Justice Souter’s dissent in that case, namely that despite the majority’s carve-out from its holding for academic speech ("We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching"), courts would begin to apply Garcetti to defeat academic First Amendment claims like those of Ivor van Heerden.
Justice Souter’s concern has been validated in the past few years, as some federal district courts have mistakenly applied Garcetti in the academic speech context. In 2008, for example, we reported that the U.S. District Court for the Central District of California had applied Garcetti in the academic freedom case of Professor Hong at UC-Irvine.
Judge Brady has made no such mistake. In ruling in favor of van Heerden and against the summary judgment motion of LSU, he had these crucial points to make:
[T]he Court pauses a moment to make a final comment about Garcetti. The concerns about academic freedom raised, but not answered, in that decision are quite relevant here. "Academic freedom is not an easy concept to grasp, and its breadth is far from clear. It has generally been understood to protect and foster the independent and uninhibited exchange of ideas among teachers and students and the serious pursuit of scholarship among members of the academy." Emergency Coalition to Defend Educational Travel v. U.S. Dep’t of the Treasury, 545 F.3d 4, 15 (D.C. Cir. 2008) (Edwards, J., concurring). While van Heerden has not argued for an academic’s exception to Garcetti, neither have defendants pointed the Court to a decision of the Fifth Circuit applying Garcetti to an academic. The Court here shares Justice Souter’s concern that wholesale application of the Garcetti analysis to the type of facts presented here could lead to a whittling-away of academics’ ability to delve into issues or express opinions that are unpopular, uncomfortable or unorthodox. Allowing an institution devoted to teaching and research to discipline the whole of the academy for their failure to adhere to the tenets established by university administrators will in time do much more harm than good.
Judge Brady has it exactly right! Not only is his ruling in this case a win for academic freedom rights of university faculty in the face of the threat created by Garcetti and its progeny, he demonstrates a critical understanding of the stakes involved for faculty members, and for the academic life of a university. We at FIRE are therefore heartened by this ruling, and we hope to see more decisions like it in the future.