As The Chronicle of Higher Education reported this week (subscription required), professors are campaigning for their universities to preserve their academic freedom in light of a recent spate of federal court rulings denying legal academic freedom rights to professors. These federal cases have misconstrued a Supreme Court case, Garcetti v. Ceballos [PDF], 547 U.S. 410 (2006), as restricting First Amendment protections of professors’ speech.
The facts in Garcetti involve a deputy district attorney who was reassigned, made to transfer courthouses, and denied a promotion after he raised questions about misrepresentations in an affidavit. Following his punishment, the deputy district attorney brought a First Amendment claim, alleging that he was improperly subjected to retaliation after engaging in speech on a matter of public concern. However, the Supreme Court held that when public employees speak pursuant to their official duties, the First Amendment does not protect that speech from employer retaliation.
Justice Anthony Kennedy’s majority opinion, responding to an argument made by Justice David Souter in his dissent, identified the speech of public university professors as a potential exception to its ruling, but declined to resolve whether the holding issued in Garcetti "would apply in the same manner to a case involving speech related to scholarship or teaching." While the Supreme Court has not yet returned to this issue, lower federal courts in some cases have already interpreted Garcetti not to include an academic freedom exception, as we have detailed here and here.
In the article, the Chronicle highlights the unfortunate outcomes of these lower court decisions:
Among the most recent such rulings, a U.S. District Court last month rejected claims by a University of South Alabama faculty member that the First Amendment protected her complaints about a lack of diversity in hiring decisions. A separate U.S. District Court held in March that two professors of nursing at Medgar Evers College, in New York, were not protected by the First Amendment when they complained about the management of their academic department to a union representative, a grievance officer, and administrators there.
[T]he U.S. Court of Appeals for the Seventh Circuit ruled in 2008 that a tenured associate professor at the University of Wisconsin at Milwaukee was not protected by the First Amendment when he complained that administrators there had mishandled a grant. The U.S. Court of Appeals for the Third Circuit held last year that a Delaware State University professor was not protected when he spoke about job-related activities not specifically covered by his contract. Pending before the U.S. Court of Appeals for the Ninth Circuit is a case dealing with the question of whether the First Amendment protected a professor at the University of California at Irvine from repercussions over statements he made in connection with personnel decisions in his academic department.
Read the article in full (subscription required) for many more examples of post-Garcetti decisions negatively impacting the right of professors to speak their minds.
Fortunately, professors are taking action to protect their professional academic freedom, even where the courts refuse to provide them with academic freedom as a legal entitlement that trumps Garcetti’s speech-restrictive holding. As we’ve mentioned here on The Torch before, the American Association of University Professors (AAUP) has implemented a campaign called "Speak Up, Speak Out: Protect the Faculty Voice on Campus" to encourage professors to educate themselves about their respective universities’ policies and to seek greater protections for their speech about academic issues when those policies fall short of fulfilling the values of professional academic freedom.
Further, the Modern Language Association (MLA) has issued a statement that identifies the potential negative consequences of Garcetti on professors’ legal academic freedom:
As a result of [lower court] rulings, faculty members at public universities can now face disciplinary action for statements they make in the course of their official duties. Notably, this includes statements faculty members may make while serving on academic committees or while addressing university procedures and policies; indeed, it conceivably covers everything a faculty member might do or say in the course of his or her working day.
Such disciplinary action against professors who speak out about academic issues could include their demotion, denial of tenure, or even their being fired.
The Chronicle article notes that the AAUP campaign and the MLA statement have inspired professors at universities such as Auburn University, Oakland University, and the University of Wisconsin at Madison and in university systems such as the University of Illinois and the University of California to advocate for the institution of new academic freedom-protective policies. They aim for such policies to be based on a University of Minnesota policy introduced last year, which grants professors "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."
FIRE praises the University of Minnesota for this policy and is heartened by the AAUP’s and the MLA’s concerted efforts to preserve professors’ right to free speech. While we wait for a Supreme Court ruling that makes clear that Garcetti does not apply in the academic setting, we hope that professors are encouraged by the efforts of their peers to take matters into their own hands as lower courts continue to chip away at their speech rights.