Faculty members sometimes say intemperate things. Their tendency to express themselves forcefully and, on occasion, provocatively is one of the defining characteristics of university culture. "A professor," observed a recent report from the American Association of University Professors, "may well experiment with modes of presentation meant to shock."
In keeping with well-understood principles of academic freedom, faculty members are typically given substantial latitude to teach courses within their expertise and domain. But faculty members "speak," metaphorically, in many other ways—by engaging in research and creative activities and publishing the results, by serving on university committees, and by representing their universities when performing public service or service to their professional fields.
To what extent does academic freedom protect faculty speech in those contexts?
For decades we had a workable answer in the form of a 1968 U.S. Supreme Court decision, Pickering v. Board of Education. The court enunciated a straightforward two-part test for balancing a faculty member's free-speech rights against a university's countervailing right to discipline the faculty member—as it would any other employee—for insubordination or disruption in the workplace. Faculty members were deemed to have engaged in constitutionally protected free speech if, first, the speech addressed "matters of public interest in connection with the operation of the [institutions] in which they work"; and, second, their interest in speaking out outweighed "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
In Pickering, the justices struck the balance decisively in favor of a public-school teacher who had been fired for writing a letter to a local newspaper criticizing school officials. The court rejected the notion that "teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work."
The decision ushered in almost four decades of lower-court decisions largely supportive of faculty free-speech rights. But new uncertainty arose in the wake of the Supreme Court's 2006 decision in Garcetti v. Ceballos, a case that did not involve faculty members or universities directly but nevertheless contained an unsettling digression that left the effect of the law on employee speech uncertain as applied in the higher-education context.
In Garcetti, a prosecutor had written an internal memorandum sharply critical of his supervisor's decision to proceed with a criminal prosecution. After the prosecutor was reassigned and denied promotion, he filed suit claiming that his supervisor had retaliated against him for having written the memorandum. The court, in a ruling that rejected the prosecutor's claim, held 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."
The decision featured an unusual colloquy between Justice Anthony Kennedy, author of the majority opinion, and Justice David Souter, who dissented. Justice Souter expressed his hope that the decision in Garcetti "does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to... official duties.'" In response, Justice Kennedy added a sentence for the majority: "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."
Garcetti, in short, flagged but reserved judgment on the open question of whether faculty members at public colleges and universities enjoy protection against institutional retaliation for speaking out on matters of internal governance or public concern. For seven years, lower courts have grappled inconsistently with the question reserved in Garcetti. In an early post-Garcetti case, decided in 2008, a federal trial court in California alarmed proponents of faculty free-speech rights by upholding a university's right to deny a faculty member a merit increase for criticizing the department chair at a faculty meeting.
One year later, another federal court ruled that a faculty member had not spoken on a matter of public concern and was hence not entitled to First Amendment protection, when he published letters and made comments to a local newspaper reporter critical of university plans to merge two colleges.
Those and other cases prompted the AAUP in 2009 to issue a report observing that "the lower federal courts have so far largely ignored the Garcetti majority's reservation, posing the danger that, as First Amendment rights for public employees are narrowed, so too may be the constitutional protection for academic freedom at public institutions, perhaps fatally."
In the past two years, however, the tide appears to have turned. Two recent decisions by federal appellate courts explicitly hold that the Garcetti standard does not apply in faculty-free-speech cases. In 2011, in Adams v. Trustees of the University of North Carolina-Wilmington, a faculty member accused university officials of discriminating against him by denying his application for promotion after he expressed opposition to various university policies and positions in radio and television commentaries and a highly critical book. The court rejected the university's effort to dismiss the lawsuit on Garcetti grounds, holding that "Garcetti would not apply in the academic context of a public university as represented by the facts of this case."
Just a few weeks ago, in Demers v. Austin, another federal appellate court reached the same conclusion in a carefully reasoned decision allowing a professor at Washington State University to proceed with a retaliation claim after he distributed a pamphlet and a book manuscript advocating an academic-reorganization plan opposed by university administrators. Once again the holding was unequivocal: "We conclude that Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed 'pursuant to the official duties' of a teacher and professor. We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering."
The trend is encouraging. As a legal principle and sound postulate of institutional governance, academic freedom should be deemed to protect the expression of faculty views even when they are deemed by some to be unhelpful or provocatively stated. This is especially compelling given the uniqueness of our universities as marketplaces of ideas where we seek to discover new knowledge and understanding and make it available to others.
To the extent that Garcetti created any confusion about the academic-freedom rights of faculty members, nothing prohibits a university from embracing academic freedom of its own accord without waiting for the definitive judicial guidance that has so far been slow to come.
Some universities have taken matters into their own hands by importing Pickering free-speech standards into their institutional policies and collective-bargaining agreements.
(Note: Each of us worked on one of the exemplars described in this paragraph.) At the University of Minnesota, a board-adopted policy on academic freedom and responsibility, enacted several years after Garcetti, accords faculty members "the freedom, without institutional discipline or restraint, to... speak or write on matters of public concern as well as on matters related to professional duties and the functioning of the University." At the University of Delaware, the same standard is incorporated into the faculty collective-bargaining agreement in the form of an academic-freedom article—collegially renegotiated after Garcetti—declaring faculty members' "freedom to address the larger community with regard to any social, political, economic, or other interest" and to do so "without institutional discipline or restraint."
The lower federal appellate courts since Garcetti have teed up squarely the question of faculty-free-speech rights. It is now time for the Supreme Court to address the issue with clarity and, following the lead of Adams and Demers, limit Garcetti's reach by rejecting any threat it may pose to the academic freedom of the professoriate.
Thomas Sullivan is president of the University of Vermont and former provost at the University of Minnesota and former dean of its law school. Lawrence White is vice president and general counsel at the University of Delaware. The comments and opinions expressed here are the authors' own and should not be taken as statements, opinions, positions, or an endorsement by the universities at which the authors are currently or were formerly employed.