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Faculty speech rights at public universities
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Faculty members are often shocked to learn that many of the same rules that apply to employees of the postal service also apply to professors at public universities.
The following selection is excerpted from ĂŰÖĎăĚŇ’s Guide to Free Speech on Campus.
The nation’s public universities function primarily as educational institutions, as places dedicated to the pursuit of knowledge, understanding, and the free exchange of ideas. In pursuing this mission, however, the university — like any public institution — also functions in a secondary capacity as an employer. Courts have been called upon to determine when the government’s interest in maintaining a harmonious and efficient workplace trumps the rights of government employees to speak on matters related to the workplace, or, indeed, to speak even on matters beyond the workplace.
Faculty members — critical participants in the university as a marketplace of ideas — are often shocked to learn that many of the same rules that apply to employees of the postal service also apply to professors at public universities. While faculty members do enjoy certain academic freedom rights (discussed later in this section) that postal workers do not have, they both operate under the same legal framework governing the speech of government employees. This doctrine does not apply to students as students, but since the vitality of your college or university depends in great part on the freedom of your teachers to speak freely, including to speak freely with you, this issue matters for students.
In the landmark case of Garcetti v. Ceballos (2006), the Supreme Court held that government employees may be dismissed or disciplined for speech uttered in their role as employees. Garcetti concerned a deputy district attorney who faced negative employment consequences, including the denial of a promotion and a punitive reassignment, after he brought attention to misrepresentations in an affidavit. After suffering through his various punishments, the deputy district attorney brought suit, arguing that he had been subjected to unconstitutional retaliation for speaking out on a matter of public concern. In deciding against the deputy district attorney, the Court 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.”
The Court’s ruling in Garcetti represents a departure from its longstanding precedent holding that government employees are protected from retaliation for speaking out on a matter of “public importance.” In Pickering v. Board of Education (1968), the Court applied this doctrine specifically to teachers at public schools, holding that the state’s interest in limiting the ability of its employees to contribute to public debate “is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” (A free nation itself, of course, has an almost immeasurable interest in having citizens contribute to public debate.)
While lower courts continue to determine the precise contours of Garcetti’s exception for faculty speech “related to academic scholarship or classroom instruction,” faculty speech rights may not be fully accounted for until the Supreme Court specifically takes on the question it declined to answer in Garcetti.
Without proof that the employee knowingly or recklessly made false statements, “a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” And in Connick v. Myers (1983), a case involving the free speech rights of a state-employed attorney, the Court found that when government employees spoke on a matter of merely “personal” rather than “public” concern (that is, a matter of “political, social, or other concern to the community”), they did not enjoy First Amendment protection from discipline. But Garcetti effectively removed the “public concern” exception altogether, granting the government far more leeway in disciplining employees for their speech as employees.
As of this writing, Garcetti’s impact on faculty members of public institutions continues to evolve, as courts determine how Garcetti squares with the longstanding academic freedom rights of faculty members. Crucially, the majority opinion in Garcetti effectively carves out an exception for public university faculty. Writing for the majority, Justice Anthony Kennedy found that “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.” Kennedy explicitly declined to resolve whether the Garcetti holding “would apply in the same manner to a case involving speech related to scholarship or teaching.”
Thus far, courts have interpreted Garcetti’s faculty exception in divergent ways, with some essentially ignoring the apparent carve-out for faculty rights. Invoking Garcetti, the U.S. Court of Appeals for the Seventh Circuit against a tenured faculty member at the University of Wisconsin–Milwaukee who had suffered a pay cut after he complained about his department’s handling of grant funds. Also citing Garcetti, the U.S. Court of Appeals for the Third Circuit no First Amendment violation in the case of a professor dismissed after criticizing the university president. Similarly, a federal district court in California that a professor at the University of California Irvine was not the victim of unconstitutional retaliation after he was denied a raise and assigned a heavier workload following his criticism of other faculty members and the department’s use of lecturers.
FIRE's Guide to Free Speech on Campus
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However, other courts have recognized the faculty exception and put it to use. For example, in Adams v. Trustees of the University of North Carolina – Wilmington (2011), the U.S. Court of Appeals for the Fourth Circuit reversed a federal district court’s ruling that the University of North Carolina Wilmington had not violated the First Amendment rights of Professor Mike Adams by rejecting his application for tenure. Adams had argued that his application was denied in part because of his conservative views, expressed in columns Adams had written for outside websites. The district court held, however, that because Adams had included the conservative columns in his application for promotion, the content of the columns became speech “made pursuant to his official duties” — and thus not protected by the First Amendment, per Garcetti. But the Fourth Circuit reversed this holding, pointing out that the district court had failed to consider the carve-out for public faculty speech: “[T]he district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university.” The Fourth Circuit noted that professors need breathing room:
Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.
While lower courts continue to determine the precise contours of Garcetti’s exception for faculty speech “related to academic scholarship or classroom instruction,” faculty speech rights may not be fully accounted for until the Supreme Court specifically takes on the question it declined to answer in Garcetti.
Public college and university faculty who face a threat of sanction by their institution or have been punished for expressive activity — whether it’s instruction, scholarship, or speaking on issues of public concern — can submit matters to ĂŰÖĎăĚŇ’s Faculty Legal Defense Fund for assistance. They can do so through FLDF’s dedicated 24-hour hotline at 254-500-FLDF (3533), or submit a case online. Our staff will quickly review the matter and, if it falls within FLDF’s mandate, connect the faculty member with an experienced First Amendment attorney for free legal help.
To learn more about your rights, explore ĂŰÖĎăĚŇ’s Guide to Free Speech on Campus.