The Developing Law of Academic Freedom in Public Colleges and Universities

In 2006, the U.S. Supreme Court clamped down on public employee free speech.  But its decision, strangely, may have opened the door to greater legal protection for teaching and research by members of the faculties of public colleges and universities. Greater legal protection?  Haven’t college faculty members enjoyed greater legal protection in what they had to say—in the name of academic freedom—than other public employees?  Not like you might think, and not like most college faculty members have always thought.

Sure, public colleges are dedicated, as a moral or philosophical matter, to the idea of academic freedom as an extra, special protection for the speech of faculty members.  The bedrock document on academic freedom is 1940 Statement of Principles on Academic Freedom and Tenure adopted by American Association of University Professors and of the Association of American Colleges.  It said:

“Teachers are entitled to full freedom in research and in the publication of the results . . . [and] Teachers are entitled to freedom in the classroom in discussing their subject . . .”

But as recently as 2000, a federal court of appeals stressed the limited legal protections:  “‘Academic freedom’ is a term that is often used, but little explained, by federal courts.”  Urofsky v. Gilmore, 216 F.3d 401, 410 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).  At issue was a Virginia statute that banned the use of state-issued computers by state-paid employees to access sexually oriented websites.  Could that ban be applied to professors at Virginia’s public colleges?  An argument based in the notion of academic freedom went this way:  this ban may be a reasonable infringement on the free speech rights of public employees generally, but it is unconstitutional when applied to college faculty members.  The federal appeals court shot the argument down, saying this:

“Significantly, the [United States Supreme] Court has never recognized that professors possess a First Amendment right of academic freedom to determine for themselves the content of their courses and scholarship, despite opportunities to do so.”

A different federal appeals court said a similar thing in 1999.  In that case the professor had been instructed to stick more closely to the subject matter of the course he was teaching—introduction to educational media—and leave off his discourses on religion and morality.  The professor sued, in the name of academic freedom, for the right to teach his course in the way he saw fit.  The court said that “a public university professor does not have a First Amendment right to decide what will be taught in the classroom.” Edwards  v. California State University of Pennsylvania, 156 F.3d 488, 491 (3rd Cir. 1998), cert. denied, 525 U.S. 1143 (1999). The upshot of decisions of this type was that public college faculty members surely enjoyed the same First Amendment free speech protections as other governmental employees, but it was highly questionable whether they enjoyed any greater legal protection in the name of academic freedom. Then, in 2006, came the Supreme Court decision severely limiting the kinds of free speech claims that public employees can make.  It has never been the case, of course, that a public employee could get away with saying just anything at just any time.  Instead, the federal courts (and most notably the Supreme Court) have, over the years, imposed a couple of direct restrictions on public employees’ exercise of free speech.  First, for public employee speech to be protected, it must be centered on a matter of public concern.  Expressions of private or personal concern are simply not protected free speech.  Second, the employee, in speaking out, must not have caused turmoil or disruption or otherwise significantly interfered with the ability of the governmental employer to get it work done.  As it is commonly said, the balance of interests must rest in the employee’s favor. The 2006 decision, Garcetti v. Ceballos, 547 U.S. 410, added a new restriction.  If the public employee was speaking as part of her job duties, then the speech is simply not protected by the First Amendment at all—no matter that it is speech on a matter of public concern and no matter that it causes no turmoil or disruption.  If the employee is speaking as part of the job duties, she is speaking as an employee doing the work she is paid to do, and not as a citizen exercising constitutionally-protected rights.  This new restriction makes it much harder for public employees to win free speech cases. So what about public college teachers?  When they talk in class or when they conduct their research, they are most assuredly acting within their job duties.  Does that mean that in-class speech, for example, is never constitutionally protected?  Exactly that question bothered then-Justice Souter, who, in dissent, noted that university professors make statements in the classroom as part of the jobs they are paid to do.  He expressed his “hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to their officials duties.’” The majority opinion—which was, of course, the opinion that imposed the new limitation on public employee free speech—acknowledged Justice Souter’s concern, saying:

“Justice Souter suggests today's decision may have important ramifications for academic freedom . . . 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."

Perhaps, the majority was saying, there is something different about scholarship and classroom teaching that should afford it greater legal protection—something sort of like academic freedom, maybe?  Maybe the door is opened a bit for increased legal protection for academic freedom. It has now been four years and we are beginning to see cases make their way through the federal courts testing this idea.  In one, in 2007, a tenured professor made comments, as part of his faculty responsibilities in the shared-governance system at the university, expressing his concern about the quality of new hires in the department and the proportion of lower-level classes being taught by non-tenure-track instructors.  When he did not receive a pay raise, he sued, alleging that he was being punished for his speech, in violation of his free speech (and academic freedom) rights.  The federal district court vehemently disagreed, saying that his statements :

“were made pursuant to his official duties as a faculty member and therefore do not deserve First Amendment protection.  [The university] is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”  Hong v. Grant, 516 F. Supp. 2d 1158, 1168 (C.D. Cal. 2007) (emphasis added;  citations omitted), aff’d, WL4561419 (9th. Cir. 2010: “It is far from clearly established today, much less in 2004 when the university officers voted on Hong's merits increase, that university professors have a First Amendment right to comment on faculty administrative matters without retaliation.”)

Unfettered discretion!  Clearly there was no academic freedom protection in the eyes of this court, no reason to take up the opening the Supreme Court hinted at. But in another decision, in March 2010, an Ohio federal court directly took up the opening, directly “[r]ecognizing an academic freedom exception” to the 2006 decision.  In that case, a public medical school faculty member taught a certain point of view in his obstetrics class regarding vaginal forceps deliveries versus Cesarian sections.  When he was, in effect, demoted, he sued, alleging that his department chair had disagreed with his obstetrics teaching and had demoted him because of it, in violation of his rights to free speech and academic freedom.  The Ohio court found that academic freedom protected him.  Legally recognizing academic freedom “is important to protecting First Amendment values,” the court said.  “Universities should be the active trading floors in the marketplace of ideas.”  Kerr v. Hurd, 694 F. Supp. 2d 817, 844 (S.D. Ohio 2010) In its 2006 decision, the Supreme Court clamped down on public employee free speech, but it left a door open for developing new protections in law for academic freedom for college teachers.  We will see in the next few years how willing courts are to walk through that opening.