Like Freddy in Friday the 13th? Garcetti’s back!

August 16, 2011

The FIRE has an interesting post on the latest developments in the Garcetti situation. Briefly, a number of cases are bubbling up toward the Supreme Court that concern the limits of academic freedom in public universities as a result of the Garcetti v. Ceballos decision. My non-lawyerly interpretation of the decision is that the Court ruled that an attorney, who criticized a warrant, had no First Amendment free speech protection in doing so, since he made these statements as a public employee.

This logic has been the basis of a number of decisions at the appellate level where the applicability to free speech in public universities has been uneven as outlined in the FIRE piece.

There is, however, a possible mechanism for handling Garcetti. At the University of Minnesota we have been concerned about the implications of Garcetti for some time.  See: Trust Me, I’m a Lawyer. Our provost, the lawyer and former law school dean, Thomas Sullivan, was initially skeptical about the applicability of Garcetti to academic freedom.  To his credit, however, he and faculty members agreed on a revised statement on academic freedom that was approved by the Board of Regents.

SECTION II. ACADEMIC FREEDOM.
[Emphasis mine]

"Academic freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the University." (June 12, 2009)

Faculty and administrators at public universities may wish to consider developing such statements for approval. This would remove any doubt that public criticism of universities by their faculty is protected speech.

Of course having such a policy and enforcing it are different matters.