Recent (and troubling) State Court Decision Involving Faculty Speech

This past month, a state court in Idaho dismissed the suit of Habib Sadid, a tenured professor at Idaho State University (ISU), who claimed that he was retaliated against for criticizing the actions of university officials.  Among his claims, Sadid argued that the university’s actions violated his First Amendment rights.  A copy of the decision can be found on the American Association of University Professors' (AAUP) website.

The case marks yet another decision in which a court has relied on Garcetti v. Ceballos, 547 U.S. 410 (2006), to hold that a professor had not engaged in speech protected by the First Amendment.  In Garcetti, the Supreme Court held that a public employee engaging in communication pursuant to carrying out his or official duties does not engage in speech for purposes of the First Amendment.  But, the Court left open the question of whether the decision applied to speech by faculty members.  Still, several courts have applied Garcetti to faculty speech with no reasoned consideration of the extent to which, if any, that the case should apply to such speech.  In Sadid’s case, for example, the court relied for persuasive authority on a federal district case, Hong v. Grant, 519 F. Supp. 2d 1158 (C.D. Cal. 2007), where the court also reflexively applied Garcetti. 

The interesting (and troubling) twist in Sadid’s case involves the court’s determination that he did not write newspapers articles critical of the university as a private citizen.  The court held that the “tone” of the letters was that of an employee, deeming it especially important that he identified himself as an ISU employee.

The case was another example of how several courts have used Garcetti in faculty speech cases with no consideration of the fact that the Supreme Court left the door open of whether the decision should even apply to faculty speech.  Even proponents who argue that First Amendment protection for academic freedom should, at most, accrue to institutions versus individual professors have not embraced the idea of applying Garcetti to faculty speech.  The case especially touched a nerve with me since I wrote a recent article on the issue of individual academic freedom under the First Amendment with a special focus on the Garcetti decision.  Feel free to check it out if you’re so inclined.  The article is:  A Confused Concern of the First Amendment: The Uncertain Status of Constitutional Protection for Individual Academic Freedom, 36 Journal of College and University Law 145.

Comments

[Scott Bauries]

Troubling case, indeed, Neal. I adhere to my oft-stated position that these courts do not understand the meaning of the term "pursuant to" in the Garcetti decision. This court appears to believe that "pursuant to" one's employment means "but for" one's employment. It actually means "as a requirement of" one's employment duties. Apply that meaning to this case, and it goes the other way (as do all the others). The job of university professor does not require one to write op-eds. In this case, the court should have moved past Garcetti and conducted the more difficult and labor-intensive Pickering-Connick analysis.

Also, although I really like your article, in my view, this particular case does not present an academic freedom issue, but a simple free-speech issue. The academic freedom issue will arise when a professor is fired for his or her scholarship (which a professor does produce "pursuant to" his or her job duties). I continue to hope for a SCOTUS clarification on that matter.

[Neal Hutchens]

Thanks for the thoughts Scott. Yes, I think you are spot on regarding the "pursuant to" language. Now if only we could get some courts to listen. I also think you raise a good point about what exactly the term academic freedom should refer to in terms of First Amendment protection, which is a reason I fall back on the term faculty speech at times. Still, I tend to think that good grounds exist to protect faculty speech, intramural or extramural in nature, that does not deal specifically with scholarship. For instance, in Sadid's case, the court also determined that he had not spoken on issues of public concern. Thus, even if the court had determined that he had spoken as a private citizen, he still would not have satisfied the public concern requirement according to the court. In addition to scholarship concerns, then, I prefer an approach that also provides some type of protection for speech related to faculty participation in governance and teaching, as well as for speech related to scholarship. But I am not too tied to labels in how these protections arise. If extramural speech could qualify as made not pursuant to a faculty member's job duties and satisfying the public concern requirement, then I am okay with that. Of course that would still leave the issue of intramural speech, which would seem more likely to fall under the "pursuant to" category and satisfy Garcetti. Again, my preference would be provide protection to this type of speech.