On Friday, FIRE joined the American Association of University Professors (AAUP) and the Thomas Jefferson Center for the Protection of Free Expression in filing an amici curiae brief with the United States Court of Appeals for the Fourth Circuit on behalf of University of North Carolina-Wilmington professor Mike Adams. The brief argues that the U.S. District Court for the Eastern District of North Carolina, Southern Division erred in analyzing Adams' First Amendment claim.
UNC-Wilmington denied Adams a promotion to full professor in 2006, and, with the backing of the Alliance Defense Fund, the conservative Christian professor filed suit against the university in March of 2007. In his lawsuit, Adams, an associate professor of criminal justice and columnist, alleged that the denial was due to his political and religious views, and that the university's treatment of his application amounted to both religious discrimination and retaliation for protected speech in violation of his First Amendment rights.
This past March, the district court found against Adams, granting summary judgment to UNC-Wilmington. With respect to his religious discrimination claim, the court held that Adams had failed to meet his evidentiary burden in establishing that he had been subjected to discrimination on the basis of his faith, and that the university had offered "legitimate, non-discriminatory reasons for the denial." The district court further found that Adams' First Amendment retaliation claim was without merit because Adams had included his conservative columns in his application, rendering the content of the columns speech "made pursuant to his official duties." Citing the Supreme Court's ruling in Garcetti v. Ceballos, 547 U. S. 410 (2006), in which the Court held that public employees do not enjoy First Amendment protections when engaging in speech pursuant to their official duties, the district court concluded that Adams' columns could not be grounds for retaliation in violation of his First Amendment rights.
In our brief, we argue that the district court misapplied Garcetti by failing to note the Supreme Court's specific, explicit reservation of the question of whether academic speech should be analyzed under Garcetti's exacting standard. Writing for the majority in Garcetti, Justice Anthony Kennedy unequivocally declined to extend the ruling to academic speech:
There 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.
But in the district court's ruling, this important distinction is ignored, and Garcetti is applied without any consideration of the fact that Adams' case presents precisely the question the Supreme Court did not reach in Garcetti. What's more, by incorrectly treating academic speech as indistinguishable from every other type of public employee speech, the district court tramples on decades of precedent establishing the crucial importance of academic freedom and reaches a result that, if uncorrected, could chill speech in the academy. As we write in our brief:
Because academic speech under the First Amendment is neither governed by Garcetti nor susceptible to the "official duties" analysis reflected in Garcetti, the scope of First Amendment protection for academic speech should be governed by more than a half-century of decisions, beginning with Sweezy v. New Hampshire, 354 U.S. 234 (1957), that recognize the vital role that academic speech by college and university professors plays in our society and the First Amendment interest in that speech. Further, granting the University of North Carolina-Wilmington summary judgment on Adams' First Amendment claims sets a dangerous precedent by prematurely judging the matter, a step that another appellate court has noted may be inappropriate in First Amendment retaliation cases.
The illogical application of Garcetti to this case undermines some of the basic principles of academic freedom, a freedom that is "of transcendent value to all of us and not merely the teachers concerned." Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). The district court's decision could destroy First Amendment protection for all speech made by university professors pursuant to what the court deems to be their official duties. This decision, if allowed to stand, would have a chilling effect on research, innovation, and discourse within a public university - a place whose primary purpose is the development of knowledge through discussion, debate and inquiry.
FIRE has been closely monitoring Garcetti's impact on academic speech in the collegiate context since the decision's release, and as we've reported here on The Torch before, the AAUP has been particularly vocal in opposing the threat presented by broad, uncareful readings of Garcetti. We're pleased, therefore, to join the AAUP and the Thomas Jefferson Center in standing up for academic freedom in this appeal.
Though we take no position on Adams' promotion in our brief, longtime FIRE supporters may remember that we defended Adams back in 2001, when his private correspondence was investigated by UNC-Wilmington following a debate between Adams and a student regarding the United States' role in the September 11 terrorist attacks.