Public colleges and universities must be vigilant and do more to protect academic freedom, particularly in the wake of court decisions limiting the free-expression rights of public employees, says the American Association of University Professors.
AAUP, the nation’s largest group that represents academics, has launched a campaign it calls “Speak Up, Speak Out: Protect the Faculty Voice on Campus." The group recently issued a detailed report, “Protecting An Independent Faculty Voice: Academic Freedom After Garcetti v. Ceballos.”
In Garcetti v. Ceballos (2006), the U.S. Supreme Court ruled 5-4 that public employees have no First Amendment protection for speech made in the course of their official job duties. The case involved an assistant district attorney, Richard Ceballos, who wrote a memorandum to his superiors criticizing the handling of a case. Ceballos alleged that his superiors demoted him and took other retaliatory actions in response to his memo.
The Garcetti decision led to a significant lessening of constitutional protection for public employee free-speech rights. Previously, courts asked whether the employee’s speech touched on a matter of public importance, then balanced the employee’s free-speech rights against the employer’s interests in an efficient, disruptive-free workplace.
In his majority opinion, Justice Anthony Kennedy cautioned 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.” However, Kennedy added that the Court need not determine whether its rationale applied to academic speech.
Justice David Souter in his dissenting opinion was more forceful, warning that the Court’s opinion could “imperil First Amendment academic freedom in public colleges and universities, whose teachers necessarily speak and write pursuant to ‘official duties.’”
Although the U.S. Supreme Court did not say whether its decision applied with full force in the academic context, several lower courts have applied to reject the constitutional claims of university professors.
For example, the AAUP report cites the case of Juan Hong, a tenured chemical-engineering professor at the University of California, Irvine. Hong alleged that university officials denied him a pay increase after he criticized the appointment of other faculty members and complained about what he believed to an over-reliance on adjunct instructors to teach courses.
In September 2007, a federal district court in California tossed out Hong’s lawsuit in Hong v. Grant, basing its decision in part on Garcetti. The court said Hong’s critical comments about faculty promotion and the use of adjuncts fit within Garcetti’s meaning of “official job duty” speech. “As an active participant in his institution's self-governance, Mr. Hong has a professional responsibility to offer feedback, advice and criticism about his department's administration and operation from his perspective as a tenured, experienced professor,” the court determined. “UCI is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities. Regulation of this professional speech does not strip Mr. Hong of any liberties he enjoys as a private citizen.”
Hong’s case is on appeal to the 9th U.S. Circuit Court of Appeals. AAUP views the case as a prime example of the dangers of Garcetti to academicians. It urges faculty members to become involved in its awareness campaign to ensure that colleges and universities recognize and protect the rights of faculty members to speak about institutional matters.
AAUP recommends that universities adopt statements and definitions of academic freedom that “clarify that academic freedom protects faculty speech about institutional academic matters and governance as well as teaching, research, and extramural statements.”
Robert O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression and chair of the AAUP subcommittee that produced the report, said the awareness campaign also would educate faculty members about the perils of Garcetti.
“Yes, there is a lack of awareness by many faculty members about Garcetti,” he said. “Just as fish are the last to discover water, it is often that faculty are the last to discover academic freedom.”
O’Neil pointed out that what happened to Juan Hong at the University of California, Irvine, could “happen to anybody, at any time.”
“It is my hope that many institutions of higher learning may recommend changes to academic freedom policies and reduce the likelihood of a Garcetti-like approach,” he said. “I also hope that many university counsels and governing boards will be persuaded that protecting faculty speech on institutional matters is good policy in general.”