Rescuing Academic Freedom from Garcetti v. Ceballos: An Evaluation of Current Case Law and a Proposal for the Protection of Core Academic, Administrative, and Advisory Speech
45 Pages Posted: 15 Oct 2015
Date Written: 2014
Academic freedom is a conceptual chameleon. Sometimes it is thought to be about institutions; sometimes about individuals. When it is thought to be about individuals, sometimes it is thought to be about academics only, sometimes about academics and students. In both of those contexts, academic freedom is usually thought of as having weight, both with respect to what happens in the classroom and with respect to what is published in academic publications -- perhaps even to what is said in debates about academic policy at the institution at which the academic in question is employed, or about what is said in debates about local, national, or global policy by the academic in question. Sometimes, furthermore, it is thought to be a constitutional phenomenon and, for that reason, applicable only to governmentally run institutions and to academics (and to students) at those institutions, as private institutions lack the state-actor feature that is essential to the applicability of most constitutional mandates. Sometimes, however, academic freedom is thought to be a contractual phenomenon (either independent of, or in addition to, academic freedom as a constitutional phenomenon) and, as such, potentially applicable to academics (and perhaps to students) at both public and private academic institutions. Sometimes, finally, academic freedom is thought of (if only rarely by lawyers) as a cultural phenomenon; that is, it is of significant normative value to academics and students at both public and private academic institutions for reasons that are neither literally constitutional nor literally contractual, shielding those academics and those students from adverse action predicated upon their exercise of that freedom. This article focuses on academic freedom with respect to individuals-academics specifically. It engages constitutional and contractual questions regarding academic freedom for public university faculty.
Academic freedom is an essential component of vibrant public colleges and universities. Uncensored speech by university professors facilitates an uninhibited pursuit of truth and the advancement of knowledge, encouraging both innovative scholarship and instruction by enabling scholars to speak candidly about potentially unwelcome or unsettling concepts. Academic freedom's critical importance suggests that it be given constitutional protection under the First Amendment; however, current constitutional law does not reflect this understanding.
This paper is inspired by the leading case on free speech in the workplace, Garcetti v. Ceballos. In Garcetti, the Supreme Court held that the First Amendment does not protect the speech of governmental employees who speak out pursuant to job responsibilities, stating 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." However, the Court said in dicta that an academic freedom exception to this limit may exist, explaining:
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.
In the eight years since the Garcetti decision, the Court has declined to provide any guidance for this hypothetical academic freedom exception, or even to clarify whether it exists. Of those lower courts that have provided guidance or clarified whether it exists, few have agreed on the boundaries of the exception. These inconsistencies threaten to chill First Amendment freedom of speech by leaving educators in a state of doubt about the degree to which their controversial statements in publications, in the classroom, in the faculty lounge, and in the public sphere are protected. In order to allow academic speech to thrive in its fullest form, the Supreme Court should establish a clear academic freedom exception to the public employee speech doctrine articulated in Garcetti. There should be spaces and times in which a public university professor is assured the right to speak freely and without consequence to his position. This paper discusses the parameters of such an exception. Its primary mission is not to argue that an academic freedom exception should exist; although it addresses in context the necessity of an academic freedom exception to the "pursuant to official duties" standard, an extensive literature already details the need for an exception to the Garcetti holding for academics. This paper's mission, rather, is two-fold: first, to illustrate trends across circuits following Garcetti regarding the treatment of academic speech, distinguishing the treatment of speech within enumerated roles that public university faculty assume; and second, to argue for a distinction between the protection of speech related to the roles of teaching and researching from that related to the roles of administrator and advisor.
Part I outlines the relevant First Amendment law surrounding free speech in the workplace, ending with the Garcetti decision. Part II discusses the development of constitutional protections for academic freedom and the practice of shared governance in academia. Part III analyzes the application of Garcetti to the various roles that professors assume -- specifically, the roles of teacher, researcher, advisor, administrator, and citizen -- and the divergent approaches to Garcetti in the academic context. Part IV explains why an academic freedom exception is still relevant in light of contractual provisions in public college and university faculty contracts. Finally, in Part V, the paper develops the policy concerns implicit in strict public employee speech analysis, as applied to public college and university faculty. It distinguishes the imperative of protecting speech related to the roles of teaching and researching from that related to the roles of administrator, advisor, or citizen. It then offers two proposals for the protection of academic freedom, the first describing areas of speech that should be assured protection by the courts, the other suggesting areas of speech of which academics themselves are the most appropriate guardians.
Suggested Citation: Suggested Citation