Thoughts Prompted by Recent Chronicle of Higher Education Commentary on Academic Freedom

As someone whose research interests center on speech issues in higher education, I read with interest a recent commentary by Joan DelFattore in the Chronicle of Higher Education entitled "To Protect Academic Freedom, Look Beyond the First Amendment."  I recommend the commentary, and the author makes several good points regarding current debates over First Amendment protection for academic freedom.  For instance, and significantly, even if the Supreme Court ultimately decides that professorial speech receives some degree of constitutional protection, then any such constitutional safeguards for faculty speech will not be equivalent to professionally grounded protections for academic freedom, such as those provided through tenure.  As the commentary notes as well, problems arise in evaluating the quality or competency of faculty speech in relation to academic freedom concerns (though as dicussed below, I'm not sure the problem is as severe as the author suggests). 

                                                                   

However, the author’s positions regarding First Amendment protection for academic freedom are questionable on several fronts.  In general, the Garcetti v. Ceballos decision, which is discussed in the article, has been criticized for creating a bright line rule for public employee speech in general.  Under Garcetti, a public employee is not entitled to First Amendment protection for speech made pursuant to carrying out his or her professional employment duties.  Thus, the decision is worrisome in the creation of a standard that denies any hope of First Amendment protection to public employees in many circumstances.  The Garcetti decision, however, explicitly left open whether it applies to faculty speech.  For a discussion of Garcetti's application at the P-12 level, see Scott Bauries' recent posting and the accompanying comments.

 

I think that one problem with the commentary is not taking a broader view of Garcetti as a poor decision generally, one that I hope future Supreme Court decisions might carve out reasonable exceptions to in relation to public employees overall (including P-12 teachers) and not just for higher education faculty members.  I suggest, in contravention to the logic of the majority in Garcetti, that a place should exist for the possibility of First Amendment protection for speech by public employees in special circumstances.  Accordingly, I think the author is somewhat off the mark by only focusing on Garcetti in relation to faculty members and not considering  the decision in a somewhat broader context and the fact that Garcetti represented a poor decision in many respects in relation to public employees in general.   

                                                                                                                                                                    

Turning specifically to faculty, my stance is that a public college or university should not be able to invite and/or insist upon a faculty employee providing his or her honest views and opinions, and then be able to pull out the "speech rug" from under the employee and engage in retaliation for speech not pleasing to the employer.  While not arguing that some kind of forum has been created, I would argue that something somewhat analogous may be created by public employers for their employees.  If a college or university adopts an academic freedom policy that applies to faculty members, then it shouldn't also be able to rely on Garcetti to claim ownership of that speech when in an official policy it previously claimed that it wanted unfettered (independent) views and discussions from the faculty in teaching and research and institutional governance matters. While most public employers may not create such policies, they have been created at colleges and universities, and courts should not ignore them in relation to the applicability of the Garcetti standards.                                                                                                                                                               

Thus, I would argue that while the First Amendment is certainly no replacement for professional standards and legally enforceable protections in relation to faculty provided through such mechanisms as tenure, I still think that courts should be able to protect faculty speech in special situations, such as when officials clearly seek to quash speech, especially that taking place in the classroom or involving scholarship, with which they simply disagree and act without professional justification.  The author seems to suggest (at least to me) that courts would be left to evaluate the content of a faculty member’s speech if the First Amendment applies to faculty speech.  I actually think much of the inquiry could, instead, focus on whether school officials had acted in accordance with accepted professional standards and in alignment with official institutional policies and practices in taking action against a faculty member on the basis of his or her speech.

 

With faculty members, another issue not raised by the author concerns the difficulty in drawing the line between a faculty member speaking as a public employee or as a private citizen (where First Amendment protections would certainly apply).  When I give a presentation at a professional conference, am I speaking as a private citizen or as a public employee?  What about a blog posting that notes I am a faculty member?  As Robert O’Neil has pointed out, Garcetti, if applied to faculty members, would mean that they would often not enjoy at least the possibility of First Amendment protection for speech related to their areas of professional expertise.  To deny even the possibility of First Amendment protections in such circumstances seems somewhat strange indeed, especially when it may be difficult to classify when a faculty member is speaking as a private citizen versus as a public employee.

 

As a final note, the author doesn’t really address the changing nature of the faculty in the commentary.  The current reality is that public colleges and universities increasingly rely on faculty members hired off the tenure track, with more than half of faculty members now working in part-time positions, and many full-time faculty members also are employed without the possibility of tenure.  Many of these faculty members, especially those employed part time, work in an at-will capacity, with very limited legal protections.  And while the author mentions collective bargaining, what about those states that prohibit collective bargaining by faculty members in public higher education?  Institutions haven’t exactly embraced putting official policies and practices into place designed to protect faculty members employed off the tenure track. 

 

While I believe that we should certainly strengthen employment protections for non-tenure track faculty, including in relation to issues involving academic freedom, given the current employment reality for many of these faculty members, I hope that the First Amendment will continue to provide at least a minimum source of legal protection for them in relation to professional speech made in such contexts as the classroom.  I take this stance especially because college and university administrators, rather than seeking to work with faculty to bolster institutional policies and practices related to academic freedom in the wake of Garcetti, have, instead, tended to use the decision as a means to challenge speech claims by faculty members, including tenured ones, in legal decisions.  In such an environment, I believe it's critical to advocate for First Amendment speech rights for faculty.