The Ivory Tower Under Siege: A Constitutional Basis for Academic Freedom
46 Pages Posted: 29 Dec 2008 Last revised: 26 Dec 2010
Date Written: December 27, 2008
In Garcetti v. Ceballos, the Supreme Court held that public employees who speak within the scope of their jobs are not protected by the Pickering balancing test. The Court reserved the issue of whether academics, who may make controversial speech within the course of their academic work and suffer retaliation, are subject to the Garcetti rule. This paper outlines the current thinking of how the various academic freedom claims within the First Amendment play out, and then offers a new way to resolve such a case. Essentially, the university is seeking authority to breach the employment agreement because the professor was in compliance with the employment agreement. Judicial sanction of such an action eviscerates contract.
Keywords: academic freedom, First Amendment, Contract Clause, public-employee speech, Garcetti, Pickering
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