For decades, the Pickering-Connick test controlled how courts interpreted the First Amendment free speech rights of public employees.1 In 2006, the U.S. Supreme Court's ruling in Garcetti v. Ceballos introduced a new standard: Even when speaking on issues of public concern, public employees did not enjoy free speech rights when speaking pursuant to their official duties.2 But how would the Garcetti standard apply in the context of university teaching and research? Would the decades old tradition of academic freedom be annihilated?3 Writing for the majority, Justice Anthony Kennedy acknowledged that special considerations should be considered in the university setting.4 However, since Garcetti there has been confusion as to whether public university professors’ speech is protected, and when.5 Even today, nearly twenty years after Garcetti, courts have been split when applying that landmark decision to faculty—particularly when faculty have been punished for speech made outside of the context of teaching and research.The responsibilities of a university professor do not rest solely in the classroom, the laboratory, or on the pages of academic journals and books. Professors are called upon to participate in shared governance, offering their opinions on matters related to campus policy and among peers in their disciplinary area of expertise. In those spaces, faculty at public universities appear to be the most legally vulnerable considering recent court rulings. I propose that in jurisdictions where able, public university faculty should advocate that the work they perform outside of the teaching and research context—namely via shared governance structures (e.g., faculty senates, which are only advisory and non-binding on university administrations)—be protected contractually via university policy and/or seek legal shelter via labor unions so that any speech related to shared governance falls under the ambit of protected concerted activity. Because the National Labor Relations Act does not govern public institutions, the availability and scope of collective bargaining rights for public university faculty are determined by each state's public employee relations laws.6 Therefore, the application and success of this proposal will depend significantly on the legal frameworks specific to each state (See Appendix A listing the states with collective bargaining for faculty).To set the stage for this proposal, in Part II I will provide an overview of the triumvirate cases of public employee free speech: Pickering-Connick-Garcetti. In Part III, I will discuss the birth of the notion of academic freedom in U.S. courts and trace its application and interpretation to contemporary times.7 In Part IV, I will provide an overview of post-Garcetti cases that pertain specifically to faculty speech outside of the teaching and research context. In Part V, I will further outline my proposal advocating for public university faculty to utilize the law of collective bargaining to better protect their extramural speech.Famed jurist Oliver Wendell Holmes once notoriously said of public employees that they have “a constitutional right to talk politics, but . . . no constitutional right” to be employed.8 Over the next century, the free speech rights of public employees—whether it be to discuss politics, religion, or other matters of personal and public concern—have been continuously refined. Today that doctrine is controlled by three cases, each applying the principle of public employee free speech rights in different contexts. The first is Pickering v. Bd. of Educ., where the plaintiff was a school teacher who had been fired because his letter in the local newspaper criticizing a proposed school board tax was deemed “detrimental to the efficient operation and administration of the schools of the district”.9 The Court sided with the teacher, establishing a balancing test between “the public interest in having free and unhindered debate on matters of public importance—the core value of the Free Speech Clause of the First Amendment”10 and the interest of public employers “in promoting the efficiency of the public services it performs through its employees.”11Conversely, in Connick v. Myers the Court refined its stance, holding that a public employee did not enjoy First Amendment protections when speaking in the workplace on issues of a personal matter, rather than issues of public concern.12 In that case, an assistant district attorney who was being transferred to a different division was fired after circulating an interoffice survey with questions critical of office procedures and critical of management.13The Pickering-Connick line stood for decades as the test for determining the extent of a public employee's free speech rights. In 2006, Garcetti v. Ceballos posed a new conundrum: What if the speech relates to an issue of public concern but is done not as a private citizen, like Pickering, but pursuant to one's official duties?14 In that case, Richard Ceballos, a deputy district attorney, raised questions internally regarding the voracity of an affidavit utilized in bringing forward a criminal prosecution.15 Afterward, Ceballos claimed retaliation and sued. He lost his First Amendment claims, with the Court noting 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.”16With the newly established standard that a public employee could be penalized for speech made pursuant to their official duties, the question remained as to how Garcetti would be applied in the university setting.17 Justice Anthony Kennedy, writing for the majority, addressed this concern: 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. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.18As important as preserving academic freedom seemed to be to Kennedy and the Garcetti court, the naissance of academic freedom in the United States was as a “professional norm that prioritized the preservation of faculty members’ autonomy as individuals against interference by their institutional employers.”19 The concept stems from the Germanic principles of Lehrfreiheit and Lernfreiheit and was first introduced to the United States via the 1915 AAUP Declaration of Principles.20 The American Association of University Professors (AAUP) was formed by a number of influential faculty at the time, of which included John Dewey, in response to a number of politically motivated firings.21 Speaking of the need to avoid institutional intrusion on the teaching and research functions, the AAUP statement indicated that It is highly needful, in the interest of society at large, that what purport to be the conclusions of men trained for, and dedicated to, the quest for truth, shall in fact be the conclusions of such men, and not echoes of the opinions of the lay public, or of the individuals who endow or manage universities.22More than forty years later, the notion of academic freedom first entered American jurisprudence in Sweezy v. New Hampshire, a case in which the U.S. Supreme Court struck down a state law aimed at weeding out Communist subversion on campuses.23 There, a professor was fired for failing to answer questions about past lectures. In his concurring opinion, Justice Frankfurter famously laid out the four essential freedoms of the academy: “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”24As the framework of academic freedom has been applied by courts, the question of whether academic freedom is solely the provenance of the faculty, or if it belongs to the institution, has been hotly debated.25 Though the initial 1915 AAUP Declaration of Principles was designed to insulate faculty from interference from university governing boards, courts quickly began to extend the legal framework of academic freedom to institutions themselves. This first occurred in the affirmative action in admissions case Regents of the University of California v. Bakke,26 in which Justice Powell utilized the First Amendment right of who may be admitted to study to extend to the university's right to utilize race in admissions.27 Institutional autonomy to decide who should be admitted to a university was once again affirmed in Justice O'Connor's majority opinion in Grutter v. Bollinger, the case upholding the University of Michigan law school's affirmative action plan.28While the U.S. Supreme Court has not decided cases pitting faculty rights against institutional academic freedom, some circuit cases have weighed in on that divide.29 The most notable of these is the Fourth Circuit's ruling in Urofsky v. Gilmore, finding that a Virginia statute forbidding faculty from accessing sexually explicit materials on state-owned computers was not a constitutional violation and that any assertion of academic freedom belonged to the state, which had “purchased” the speech.30Justice Warren in Sweezy v. New Hampshire stated for the majority, “To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”31 But more than sixty years after Sweezy, do courts still hold college and university professors in the same high regard as “leaders” of their institutions? More specifically, is the role of faculty as intellectual leaders contained to the pages of academic journals and textbooks and within the lecture halls in which they work, or is this necessary freedom Warren spoke of extended to policy making and professional decision making in avenues such as faculty senates and campus committee meetings?After Garcetti, confusion continues as to whether academic freedom is solely the provenance of individual faculty members and whether it supersedes the decision rendered in Garcetti. Particularly, does the carve-out for academic freedom mentioned in Garcetti extend beyond the teaching and research functions and apply when faculty are functioning as university citizens in the course of shared governance and service functions? Several federal appellate and circuit-level cases would indicate that the answer is “no”.The Third Circuit Court of Appeals was the first to address this question, three years after the Garcetti ruling. In that case, a public university professor claimed he was retaliated against by the university president for openly being opposed to his hiring and for later rescinding an invitation to him to attend a prayer breakfast. Additionally, the professor claimed he was retaliated against for serving as an advisor during the disciplinary proceedings of a university student-athlete. The court sided with the university, finding that serving as an advisor to the student-athlete was enabled precisely because of his stature as a department chair and professor—so, part of his official duties à la Garcetti—and that the other actions in question did not equate to an issue of public concern.32A professor at the City University of New York filed a retaliation suit after being removed as department chair for what he claimed was his support of a colleague's sexual harassment complaint against another faculty member. The Second Circuit ruled that the speech, along with discussions the plaintiff had with campus police and university attorneys was “pursuant to his official duties” in light of his legal obligation to report allegations of sexual misconduct.33When faculty were disciplined for openly criticizing management decisions, their legal challenges failed. In Renken v. Gregory, a professor complained to his academic department regarding the manner in which funds from a National Science Foundation grant were being utilized. As a result, the professor's pay was reduced, and the university ended the cooperative agreement that enabled him to participate in the grant project. The professor lost his claim because the court found that his participation in grant activity, and any subsequent speech related to it, fell within his regular scope of employment, per Garcetti.34The same circuit took up a similar issue in 2010 in Abcarian v. McDonald. In that case, chief of surgery at a public university-run hospital spoke out on governance issues there. Later when a malpractice lawsuit was filed against him, he claimed the university hospital took that as an opportunity to discredit him. The plaintiff's claims were dismissed; the court looked to Garcetti and found that his speech had been made during the course of his employment.35That same year, the Ninth Circuit ruled similarly. In Hong v. Grant, a professor complained about staffing and governance issues at a public university. When he was denied merit increases, he filed claims of retaliation for protected First Amendment speech. The circuit court upheld summary judgment in favor of the university, finding that Garcetti applied and that the professor's speech was not protected under the scope of academic freedom.36Several federal trial courts have also heard cases related to faculty speech made outside of the teaching and research context to determine if it was protected via the First Amendment. Like the appellate rulings reviewed above, the answer appears to be no. In one instance, a federal district court in New York rejected claims brought by two faculty members at a public university who alleged retaliation after criticizing their department chair's process for conducting faculty evaluations. The court ruled that this speech was not protected, per Garcetti, as the faculty speech was “employee, as opposed to citizen, speech” and that their concerns related to personnel decision did not equate to an issue of public concern.37In Miller v. University of South Alabama, a tenure track assistant professor filed suit for retaliation after not being recommended for reappointment following accusations she made that the department engaged in discriminatory hiring practices. The court utilized the standards set in Garcetti, finding that the speech in question had been made at a department meeting and, thus, was part of the plaintiff's regular employment duties. Though the court recognized a potential public interest in diversity, the court found that the professor was not speaking as a private citizen at the time of her comments.38A researcher at a public university in Louisiana publicly criticized the U.S. Army Corps of Engineers after Hurricane Katrina flooded New Orleans, claiming poorly engineered levees that were supposed to protect the city from the Mississippi River were to blame. The university administration ordered him to stop making public statements, removed him from his teaching assignments, and ultimately did not renew his contract after twenty years of employment with the university. The professor filed suit, claiming retaliation for protected free speech. The court noted what it deemed a misapplication of Garcetti to academic speech and stated that it: shares Justice Souter's concern that wholesale application of the Garcetti analysis to the type of could to a of to issues or opinions that are or an to teaching and research to the of the for their to to the established by university will in time do more than the professor and the university its out of court for notable from this was the decision in v. There the Ninth Circuit to a different than it had in because the speech in question had been made via a and not in the of shared In that case, a professor took issue with governance of his department and like the one for the of the of In its the court the of academic freedom and, an academic freedom out from Garcetti, indicated that Pickering was more in this because the speech in question related to an issue of public its the court academic writing is not to academic writing of But in the course of their academic duties, also and other addressed to such as a and faculty on its scope and such writing may address matters of public concern under Fourth Circuit has on cases related to faculty who claimed they were by because of In v. an professor claimed that he was denied because of the he as a via his and The court on Pickering in its ruling and stated that the professor's were protected speech, as they were done outside of his scope of employment and made as a private in v. of of the Fourth Circuit in rejected claims brought by a public university professor who claimed he was retaliated against for protected extramural speech. In during a department meeting the professor complained about the of a that was to be on course evaluations. In in an to the professor criticized a who was the for an for among the a who had been fired from his for Later that year, on a personal he called one of the of his disciplinary the which one of his had been to as the next claiming that the and academic For these a in his personnel him a and his department a letter him for a of The department later a letter to the professor from his he the among his faculty and with faculty and to address their concerns regarding his the professor was removed from his department and In its to Garcetti, the Fourth Circuit found that his speech was not related to an issue of public concern and that has his speech did not within the of teaching and The free speech Foundation for and the that such rulings to stated in this the of Garcetti solely to public colleges and as action is for principles to be However, my proposal that faculty utilize the of collective bargaining to protect their extramural speech one in that faculty at public institutions may only to the extent that state law faculty at private institutions are by the National Labor Relations a listing of states with recognized collective bargaining Appendix Because the to on these state in for collective bargaining and in the scope of protected concerted activity, I state that the federal law and analysis so I one principle the collective bargaining protections should be through the of state and that federal the Garcetti and considering concern its application in the university an AAUP a report how institutions and faculty could the recommended institutions policy that would protect speech made in the course of shared governance, court decisions, which to apply to academic freedom cases, this each to its to its individual and The on further to that faculty labor unions an role in in collective bargaining to protect this type of Ninth Circuit Court in its ruling in set a argument for the at the the faculty to campus governance when it stated that the work of outside of teaching and research address matters of public The AAUP that noting that academic to public have been and to be a part of our the interests of a may it to employee speech that its or the of those in universities the and how the is be by The same and institutional that the role in institutional its right to institutional and actions when that speech is not in a governing from faculty on issues related to the public in different and in different application of Garcetti and and noted that be writing in or speaking through other In a the between and speech be universities on the work of shared governance to it is to and new governing to and make to academic and or the functions necessary to the of academic work, faculty in the shared governance process is not only a tradition but also an essential The AAUP noted this when Institutional or for faculty participation do not to in a they the faculty as a of individual and collective should be be in some matters institutional may be or actions on college or of the be for or the case law reviewed in this I advocate that faculty utilize their collective to advocate that their institutions policy to protect the speech made pursuant to shared an more legal shelter would be for faculty to on collective bargaining and the notion of protected concerted that is not for professional employees like faculty and should be to and acknowledged the by some that by principles of American labor law will participation in may be the most I have been a part of a faculty collective bargaining and the between the administration and the committee was beyond senates, which may on academic and faculty labor with and work of U.S. colleges and speech is at a in the United In to university their campus speech But beyond the most related to academic freedom has been on public university states have that would or at public is to that professors at institutions are being for what they by and The cases reviewed in this that public employee speech made in with the workplace is legally vulnerable and to by those who with This to and The in were to the federal who ruled against a professor who to the in v. were by a president and that and academic freedom should be upheld at Would have sided for and would have ruled against should not on First Amendment principles to protect speech that is made outside of the teaching and research speech that may be as in this politically they to state public employee labor and institutional policy that may provide more and in the private university context under the they are to most public public college faculty could their and legal to the of their state's public labor this the that this type of speech will be protected in the future is to utilize campus governance to for protections in policy statements via collective bargaining in to protections as as the protections to protected concerted under the
Joy Blanchard (Wed,) studied this question.