FIRE is pleased to note that the University of California (UC) Board of Regents has taken an important step to protect the expressive rights of its faculty. On July 18, it approved an amendment (PDF) to the Faculty Code of Conduct that gives professors the “freedom to address any matter of institutional policy or action when acting as a member of the faculty whether or not as a member of an agency of institutional governance.” The Code of Conduct guaranteed faculty free inquiry and the right to exchange controversial ideas related to their fields of expertise, but this amendment extends that right of expression to criticism of how the schools in the system are run. This amendment was four years in the making, in part because all 10 campuses in the UC system had to approve it. According to Inside Higher Education, its impetus was a Supreme Court decision, Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court ruled that public employees do not enjoy First Amendment protections when engaging in speech while discharging their official duties. Garcetti involved a prosecutor who was not promoted after he disclosed that one of his colleagues was withholding exculpatory evidence. Garcetti sued for retaliation, and when the case reached the Supreme Court, it held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S. at 421. Professors at public universities are public employees, of course. In dissent, Justice David Souter expressed concern that Garcetti would be used to stifle academic discourse. Justice Anthony Kennedy, who wrote the court’s opinion, attempted to address Souter’s point: 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. 547 U.S. at 425. As my colleague Will Creeley explained previously: Justice Kennedy thus specifically and explicitly declined to extend Garcetti’s analysis to bear on cases involving the speech of public university faculty, reserving the question. Unfortunately, in application, Justice Kennedy’s careful carve-out has been largely disregarded by courts, and Garcetti’s impact on faculty speech has been so significant in recent years that the American Association of University Professors (AAUP) mounted a campaign to push back against Garcetti and what it has deemed “judicial hostility or indifference” to academic freedom. FIRE has chronicled the damage that Garcetti has done to faculty free speech rights since it was handed down. Given the willingness of courts to ignore Justice Kennedy’s explicit reservation about faculty expressive rights, the action taken by the UC Board of Regents is an important step. If college and universities, in their role as employers, make clear that academic freedom covers discourse about the administration of the school itself, rather than just the material taught in its classrooms, then the courts should follow suit. Congratulations to the faculty of the UC system for prevailing in their long and hard fight to secure this important right. And thank you to the Board of Regents for approving the amendment protecting academic freedom.
College administrators should eliminate speech codes and defend free speech in all cases. No hypocrisy. No double standards.