Academic Freedom and the Post-Garcetti Blues
21 Pages Posted: 9 Apr 2011
Date Written: 2008
The Supreme Court's reasoning in Garcetti v. Ceballos, a significant public employee free speech case, raises troublesome questions because it appears to leave little breathing space for First Amendment protection for teacher speech in the classroom and for academic scholarship. In this Article, I argue for a normative approach to academic freedom in public elementary and secondary education and in higher education that takes account of Garcetti but is not over-determined by it. This normative approach is grounded on the self-government rationale of the Constitution's text and structure, including the First Amendment, and inquires into the purposes of education in a democracy. I then address the doctrinal implications of these educational purposes for academic freedom and the First Amendment. Painting with a broad First Amendment brush, I conclude that the scope of academic freedom in elementary and secondary education has not been changed by Garcetti: it remains quite limited. However, I also conclude that academic freedom in higher education should not be governed by Garcetti. Rather, as high-value speech in a democracy, it deserves maximum First Amendment protection.
Keywords: Garcetti v. Ceballos, Garcetti, Ceballos, public employee free speech, First Amendment, academic freedom
JEL Classification: K10
Suggested Citation: Suggested Citation