Inside Higher Ed reports this morning that the American Association of University Professors (AAUP) is publishing a report and web page championing academic freedom today. The AAUP described its report as necessary "to preserve all elements of academic freedom even in the face of judicial hostility or indifference."
This "judicial hostility" comes in the wake of the Supreme Court’s decision three years ago in Garcetti v. Ceballos, 547 U.S. 410 (2006). In that case, which involved a deputy district attorney fired for criticizing a local sheriff, the Court limited First Amendment protections for speech by government employees. The opinion explicitly declined to address how the decision would affect professors at public universities and their academic freedom rights. In response to a concern in Justice Souter’s dissent, Justice Kennedy’s majority opinion stated that "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. 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."
According to the AAUP’s report, however, lower courts have ignored the portion of Garcetti, leaving open the question of whether its ruling applies in the university setting. Instead, professors being punished for legitimate criticisms of their universities are sometimes being left with no First Amendment recourse. As Kelly reported here on The Torch last May, this happened to Juan Hong, who claims he was denied a merit raise from the University of California at Irvine for commenting at a faculty meeting that the university was relying too much on part-time instructors. Hong’s lawsuit was dismissed by a federal district judge applying Garcetti, and the AAUP has filed a brief in his appeal. However, the AAUP believes that professors should not rely on an exception to Garcetti, and that universities should make their own policies to safeguard academic freedom. Inside Higher Ed reports:
Cary Nelson, national president of the AAUP, said that the association continues to believe that the courts that have applied Garcetti to public higher education have been in error, and said he expected that the association would continue to weigh in on the side of faculty members like Hong as their cases work their way through the legal system.
But Nelson said it didn’t make sense to rely on an appeal to the Supreme Court to resolve the issue. "One is only willing to play Russian roulette with a certain number of the chambers filled," he quipped.
Codifying an interpretation of academic freedom into college and university policies, he said, provides two defenses. For those who teach at those institutions, there is the protection of having their rights stipulated. But if the Supreme Court ever does consider this issue, Nelson said, there will be a clear record that speaking out on institutional issues is a standard part of academic life for faculty members. "If there is a case that comes before the court, there will be a history that arrives with the case," he said.
Although we believe that the Supreme Court must remedy the application of Garcetti to professors, we applaud the AAUP’s efforts to find other solutions to threats to academic freedom. We will have more to say about this important issue.