An article published earlier this week in The Michigan Daily, a student newspaper at the University of Michigan, highlights recent efforts by the university's leading faculty governance body to strengthen the expressive rights enjoyed by faculty on campus. Just as encouraging, the move appears to have some support on the Michigan campus, as seen in a subsequent editorial in the Daily.
In a report to be presented at this month's Board of Regents meeting, the university's Senate Advisory Committee on University Affairs (SACUA) calls on the university to uphold and protect the right of faculty members to publicly criticize and dissent from university decision-making without fear of punishment. In the report, SACUA argues that the right to speak out on matters pertaining to the operation and governance of the university—and to remain free from administrative retribution when doing so—should be protected by traditional notions of academic freedom.
The report is timely because recently FIRE has seen a tendency on the part of courts to shortchange the expressive rights of university faculty when they weigh in on such issues. As previously discussed both on The Torch and in The Chronicle of Higher Education, a number of court decisions have held that public colleges and universities may lawfully take action against faculty members for speech made pursuant to their official duties. These decisions have extended the Supreme Court's holding in Garcetti v. Ceballos, 547 U.S. 410 (2006), which governs public employee speech generally, to the higher education setting. In Garcetti, the Supreme Court held that when a public employee speaks pursuant to his or her official duties, such speech is not protected by the First Amendment and may legally be cause for punishment. In so holding, the Court broke with long-standing jurisprudence protecting the rights of public employees to speak on matters of public concern. (For a more thorough review of this jurisprudence, with specific attention to how it treated faculty at public universities, please see the "Faculty" section of our October 2008 Policy Statement on Political Activity on Campus.)
The Garcetti rule is based on the idea that the average public employee, when speaking pursuant to his or her official duties, is speaking for the government. Because the government has a right to regulate its own speech, Garcetti allows for the punishment of public employees when speaking pursuant to their official duties. However, Garcetti explicitly reserved the question of whether the same analysis applies to a public university professor's speech, identifying such speech as potentially requiring a different approach in light of the university's unique status in our society as a marketplace of ideas. Since the Court has long recognized that the university is an important First Amendment institution requiring unfettered freedom of expression to fulfill its unique purpose, it seems likely that the Court would reject the Garcetti approach if faced with the issue of professorial speech pertaining to institutional matters. This would logically follow from the fact that professors are hired not to speak for the government or to endorse institutional views, but to pursue truth and knowledge in a broad sense. Unlike other public employees, professors are generally understood to speak for themselves, and this holds true even when they weigh in on important matters related to university policy-making and governance. Moreover, faculty members may often possess unique insight into institutional matters that other parties cannot offer.
Nonetheless, as the first Daily article highlights, court decisions in the wake of Garcetti have ignored the distinction between professorial speech and the speech of other types of public employees. The article discusses the Seventh Circuit Court of Appeals' 2008 decision in Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008), in which the Seventh Circuit upheld the University of Wisconsin at Milwaukee's decision to punish a professor after he protested the school's use of federal grant money. Rejecting the professor's argument that his speech related to an obvious matter of public concern, the Seventh Circuit held that his complaints were not protected by the First Amendment because he had made them as part of his official duties as a professor. Also of note is the case of Hong v. Grant, 516 F. Supp. 2d 1158 (C.D. Cal. 2007), which Kelly wrote about previously. There, a federal district court granted summary judgment to the University of California at Irvine after a professor alleged that he had been retaliated against for his critical review of other faculty members and of his department's reliance on lecturers to teach courses, once again applying the Garcetti rule to faculty speech and overriding his academic freedom. The case is currently on appeal to the Ninth Circuit Court of Appeals, and FIRE is closely monitoring the case.
The first Daily article quotes a University of Michigan professor and SACUA member, Bruce Frier, on the dangers presented by decisions such as Renken and Hong:
Frier said if a university can punish a professor for disagreeing with administrators at the university, then faculty will likely not express their true concerns.
"If, for instance, I was in a dispute with an administrator over, for instance, a grant or something like that and the administrator had the capacity to say at the end of the day 'If you don't go along with me, I will lower your salary,' that makes a considerable difference to the discussion," he said.
The editorial in the Daily likewise speaks eloquently of the importance of allowing faculty to speak freely about matters of university governance:
All professors have a right to academic and intellectual independence — more than that, professors have a responsibility to their profession and their students to share these opinions. Turning a critical eye to university affairs is every professor's duty when a university administration makes a poor decision. The ability for faculty members to speak up is one of the safeguards for ensuring that a university is running properly and ethically.
Given the potentially deleterious effect that restricting faculty speech regarding important policy matters would have on campus dialogue, the initiative taken by SACUA to put its report before the University of Michigan's Board of Regents is an encouraging, positive step.
It should be noted, moreover, that SACUA is not alone in its efforts. The article in The Chronicle of Higher Education discusses a similar initiative within the University of Minnesota system:
In a move that the AAUP is citing as pointing the way for other public colleges, faculty leaders and administrators in the University of Minnesota system are working to revise its policies to broadly protect speech related to faculty jobs. Their proposed policy change, which has yet to be approved by Minnesota's Board of Regents, expands the system's definition of academic freedom to cover speech "on matters of public concern as well as on matters related to professional duties and the functioning of the university."
This, too, is a commendable effort and will hopefully result in greater protection for faculty members to speak about institutional matters. The success of these initiatives, and of similar ones at other colleges and universities, would do much for the cause of academic freedom and faculty expressive rights in higher education. Both the Michigan and Minnesota initiatives are therefore well worth following in the weeks and months ahead, and we'll cover all the developments here on The Torch.