To Protect Academic Freedom, Look Beyond the First Amendment

Jordin Isip for The Chronicle

October 31, 2010

Professors in public colleges and universities have long cherished the belief that the First Amendment protects our academic freedom as we publish, teach, and participate in decision making within our institutions—and, of course, as we exercise our sacred right to criticize the university administration.

In reality, the First Amendment does not apply to those forms of speech, or at least it may not. And that is a good thing.

In Garcetti v. Ceballos (2006), the Supreme Court declared that when public employees speak or write as part of their jobs, that expression is not covered by the First Amendment.

Since public-university professors are public employees, that appears to include us. Uncertainty arises, however, because Garcetti also states:

"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."

This passage, known as the Garcetti reservation, leaves two key questions unresolved: whether the First Amendment protects "speech related to scholarship or teaching," and whether this formulation encompasses faculty speech about such matters as promotion, tenure, hiring, and administrative competence.

Several lower courts, ignoring this reservation, have decided academic-freedom lawsuits as if Garcetti unquestionably applies. In cases involving uncertainty about the reasons for disciplinary action, these courts have ruled that even if professors were indeed penalized for their speech, the First Amendment provides no remedy.

These post-Garcetti decisions—its "progeny," in legalspeak—have aroused widespread alarm. Garcetti, we are told, is the worst thing that has ever happened to academic freedom. But that may not be the case.

Despite the stirring rhetoric of a few mid-20th-century Supreme Court decisions, administrative authority trumped faculty rights in most cases even before Garcetti. Moreover, courts generally concede that they are not qualified to make academic judgments, such as whether a teacher is competent—but such judgments are essential to the responsible exercise of academic freedom.

In reality, faculty academic freedom has always been more firmly rooted in professional norms than in legal decisions. This is readily apparent in private colleges and universities, to which the First Amendment does not apply. The vigorous free speech that exists in many private institutions, including those in the top tier, reflects the shared vision of administrators and faculty regarding the need for an open marketplace of ideas and the importance of faculty participation in institutional decision making. The same is true of public universities, although that fact is less widely recognized. Public-university faculty may have been emboldened by their belief in First Amendment protection, but in practice the legal outcome of most pre-Garcetti cases left a vacuum that was filled by the expectations and customs of the profession.

One response to the wake-up call that the Supreme Court delivered in Garcetti would be to seek to bolster First Amendment protection for academic freedom. But even if that approach were successful—and there is no guarantee that it would be—it would not represent the best long-term solution, because the First Amendment itself is not a good fit for academic freedom.

If academic freedom is defined in terms of the First Amendment rather than as a professional standard, its scope and application will be determined by courts unfamiliar with the college and university environment. That approach has never worked well and is unlikely to do so in the future.

Moreover, the function of the First Amendment is to prevent the government from abridging the free speech of individuals. Its protection does not depend on whether that speech is original, well reasoned, or well informed. By contrast, academic freedom as a professional norm upholds the authority of the faculty as a whole to establish and maintain academic standards and to share in institutional governance. It poses no obstacle to penalizing individual faculty members for scholarly speech that is judged to be professionally incompetent, even if the First Amendment would protect the expression of those same ideas by a citizen on the street. The applications are different because the fundamental purposes are different.

Rather than focusing on the First Amendment, public institutions would do better to expand, update, and revitalize campus policies in recognition of their crucial role in defining and protecting academic freedom. Indeed, Garcetti itself encourages government-run institutions to establish their own free-speech regulations.

Several institutions, including my own, have crafted post-Garcetti language to replace earlier academic-freedom statements typically drawn from the AAUP's 1940 Statement of Principles. A selection of such policies appears on the AAUP Web site. Process and product are both important, as faculty senates, administrators, trustees, and faculty unions grapple with the purposes and scope of academic freedom.

Courts interpret the First Amendment, and university policies cannot conflict with applicable legal decisions. That is a long way, however, from the traditional view that the First Amendment provides the best, and perhaps the only, protection for academic freedom in public universities. In declaring that administrators may penalize faculty speech, courts have not said that they must do so.

Nothing prevents public universities from shaping their own academic-freedom policies as private universities do. Collective-bargaining agreements provide the strongest legal enforceability, but even if that avenue is unavailable, there is much to gain by forging a commitment to academic freedom reflecting the values and purposes of the institution. Whether in a collective-bargaining agreement, a faculty handbook, or a set of institutional bylaws, this is a far more nuanced approach than the courts' one-size-fits-all application of public-employee law.

The widespread dismay following Garcetti has sparked productive discussions about principles of academic freedom that are no longer complacently regarded as sufficiently protected by the First Amendment. Garcetti and its progeny have also drawn attention to the value of free speech in shared governance, as well as in teaching and scholarship. If these developments galvanize faculty and administrators into taking responsibility for academic freedom, then far from being a catastrophe, Garcetti might provide the greatest boost that academic freedom has enjoyed in decades.

Joan DelFattore is a professor of English and legal studies at the University of Delaware. She is the author of Knowledge in the Making: Academic Freedom and Free Speech in America's Schools and Universities, just published by Yale University Press.