LAWRENCE ROSENTHAL, Chapman University - School of Law
Email: Rosentha@chapman.edu

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because "his expressions were made pursuant to his duties." The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.

The article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court's prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices - and therefore are fairly held politically accountable for the operations of those offices. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative.

Part II considers the implications of this new law of managerial prerogative in another employment-related context - laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four Members of the United States Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment.

In Part III, the article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom - an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives.

MARTHA MINOW, Harvard University - Harvard Law School
Email: minow@law.harvard.edu

The occasion of the first Martin Luther King Jr. Day Speech at Lewis and Clark Law School, following on the heels of the Supreme Court's rejection of two voluntary racial school integration plans, warrants revisiting the conception of equality that called for school integration, the prospects for equal opportunity without education, and remaining arguments for integration. "Integration" here means more than terminating legally-enforced segregation, and more than sheer mixing of people with different races and identities in the same setting. As Dr. King described it, integration involves the creation of a community of relationships among people who view one another as valuable, who take pride in one another's contributions, and who know that commonalities and synergies outweigh any extra efforts that bridging differences may require. Before the disillusionment accompanying the apparent failure of judicially-mandated school integration, integration was inseparable from access to opportunity as a goal of civil rights reformers from the 19th century through the middle of the 20th. W.E.B. DuBois and Martin Luther King, Jr. separately emphasized that racially separate instruction by teachers who believe in their students' capacities would be better than racially-mixed instruction by teachers who disparaged African-American children - but integration would be still better. Opposition to court-ordered desegregation remedies and judicial retreat occurred just as approval of racial mixing and even integration succeeded as cultural and political ideals. Current educational wisdom identifies strategies for equal educational opportunity apart from integration. These include curricular and academic supports that demand high standards, prepare minority students to achieve in a sometimes hostile world, and craft for each student the social identity of an achiever who is a member of a community of learners. Focused school reforms aligning the curriculum with standards, more "time-on-task" with longer school days, initiatives to recruit and support effective teachers, and shifts in school finance guided by standards of adequate education and comparable opportunities can mitigate the disparities still associated with racially distinct school communities. But as even the good arguments for socioeconomic integration reveal, failure to pursue racial integration - including efforts to create truly inclusive communities of mutual respect - can recreate racial segregation through tracking, special education assignments, and students' own divisions in lunch tables and cliques. Racial integration informed by the demographic changes making this a multicultural and multi-racial society remains a distinctive goal apart from other efforts to ensure equal educational opportunities. Justice Kennedy's separate opinion in Parents Involved in Community Schools v. Seattle School District No. 1 along with the four dissenters create a fragile majority that would permit school systems and housing developers to local schools with the aim of encouraging racial integration, to develop programs designed to attract racially diverse groups of students, and to hold meetings and recruitment efforts to attract diverse groups of students and teachers. Contrary to the Court's majority opinion, pretending to have achieved color-blind as well as open opportunity - when we have not - disables individuals and communities from understanding what is going on and from becoming equipped to deal with it. In addition to the strategies for integration left open, families and students can choose integrated schools by their residential choices and by making their own lives look like the high-concept ads celebrating integration.

IRIS GOODWIN, University of Tennessee, Knoxville - College of Law
Email: goodwin@libra.law.utk.edu

Restricted purpose gifts potentially bear upon that portion of the university's endowment that can be used toward undergraduate financial aid and other tuition relief. In these remarks, I describe what a restricted gift is, the requirement under state common law that such restrictions obtain in perpetuity, the grounds for relief under the common law, and the grounds for relief and other relevant provisions of UPMIFA. The provisions of UPMIFA that are applicable to restricted gifts were drafted against the background of the common law doctrine and under UPMIFA common law relief is still available.

WILLIAM J. RHYNE, University of California-Davis, GSM
Email: bill_rhyne@yahoo.com

Using an "Issue Brief" approach, the author discusses the legal and political issues for faculty and administration staff at U.S. universities who are considering international cooperative degree programs in China and other countries. The author cites many Chinese and American sources of information from regulatory, accreditation, legal, trade, and lobbying organizations.