• September 3, 2015

U.S. Court Ducks Academic-Freedom Debate in Ruling Against California Professor

A federal appeals court has ruled against an emeritus professor who had accused the University of California at Irvine of trampling his free-speech rights, but the court did not take up the tough First Amendment questions that attracted national attention to his case.

In a terse, four-page decision issued on Friday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit said the various university leaders named as defendants in the lawsuit were shielded from its legal claims under the 11th Amendment, which has been interpreted as granting sovereign immunity to state officials.

Having declared the defendants immune, the three-judge panel declined to weigh in on the merits of the First Amendment claims made by the plaintiff, Juan Hong, an emeritus professor of chemical engineering and materials science. "We leave the question of whether faculty speech such as Hong's is protected under the First Amendment for consideration in another case," the judges said.

Mr. Hong alleged in his lawsuit that he had been denied a merit salary increase in 2004 because he had criticized the hiring and promotion decisions within his department at Irvine and had voiced concern about its reliance on part-time lecturers to teach lower-division classes. A U.S. District Court held in 2007 that Mr. Hong was not entitled to First Amendment protection for such speech because he had made the statements at issue in his capacity as a state employee.

Shadow of a Past Decision

In ruling against Mr. Hong, the district court cited a 2006 U.S. Supreme Court decision, in the case Garcetti v. Ceballos, which held that public agencies can discipline their employees for any speech made in connection with their jobs. That case involved a deputy district attorney, and the Supreme Court explicitly put aside the question of whether its logic would apply to speech made in an academic setting as well. Nevertheless, federal courts have applied the Garcetti ruling to several cases involving college faculty members, causing alarm among free-speech advocates who believe that letting colleges discipline faculty members over much work-related speech threatens academic freedom.

The Ninth Circuit panel could have denied immunity to the various university officials and administrators named as defendants in Mr. Hong's lawsuit if it concluded that they had violated a clearly established constitutional principle. But, the panel's decision said, "it is far from clearly established today, much less in 2004 when the university officers voted on Mr. Hong's merit increase, that university professors have a First Amendment right to comment on faculty administrative matters without retaliation."

Although the Ninth Circuit's decision is clearly a setback for Mr. Hong, it could have represented a much bigger setback for academic-freedom advocates if the judges had explicitly affirmed the lower court's application of the logic of the Garcetti decision to the dispute.

"The important thing for us is that the court does recognize that this is not a closed question," said Rachel Levinson, senior counsel for the American Association of University Professors, which had joined the Thomas Jefferson Center for the Protection of Free Expression in filing a friend-of-the-court brief urging the Ninth Circuit not to decide the case based on the Garcetti precedent.


1. 12071647 - November 12, 2010 at 05:16 pm

"it is far from clearly established today, much less in 2004 when the university officers voted on Mr. Hong's merit increase, that university professors have a First Amendment right to comment on faculty administrative matters without retaliation."

So much for faculty governance at any public university.

2. rgregory - November 12, 2010 at 05:51 pm

Not necessarily. Faculty governance, within the context of an established adminstrative body of a university shouldn't require invocation of the first amendment. Unless someone designing the rules really screwed up, discussion and criticism within such a body would be considered necessary for the governing body to do its job - otherwise, the state legislatures would be much calmer places!!

3. david_brown - November 12, 2010 at 06:42 pm

Meaningful faculty governance extends far beyond the context of a faculty senate (many of which have long been rendered impotent). Can ALL faculty feel free to question, discuss and debate administrative priorities and decisions at all levels from their department to the president's office?

4. sharryfloyd - November 13, 2010 at 12:57 pm

Actually, the court's reasoning closely parallels that of the Tennessee court for the Scope's trial. Scopes could be dismissed because as a public employee he was a servant to his master. Unless one estalishes faculty as a protected class in public institutions they will be not only subject to administrative actions but to the political preferences and policies of others in the heirarchy.

5. cewatt - November 13, 2010 at 06:35 pm

I have come to believe that there is no first amendment for faculty or for staff. Higher education is now a state political football and, as such, comments made are political, regardless of context and regardless of merit. Because we are public employees, even if we are not speaking in any "official capacity," it is taken as such because the press can easily find out who we are and any committee we serve.

Certainly is dead in my neck of the woods. Hopefully others have more positive thoughts.

6. ciceronow - November 14, 2010 at 01:25 pm

Is it not clear from the FSU case reported recently in the Chronicle? There an arbitrator found that the administrators had acted arbitrarily and capriciously when they fired some Anthropology professors based on fabricated "cost cutting" rationale when the real reason was because the provost had a personal history with the anthro. dept. If it were not for the fact that some of those FSU professors were unionized, the administration would have gotten away with it. Then they rehired the non-unionized professors because they didn't want to look like the jerks they were being and didn't want to be sued in court for differential treatment. The union was the only thing that changed this situation and protected faculty.

Why the ranks of the AAUP is not swelling is beyond me. The treatment that the FSU profs and Prof. Hong got is going to happen to all of us soon enough. It will happen to YOU sooner if you are involved in anything critical. Higher education is being transformed into a non-unionized corporate workplace before our eyes (with Dole Bayh and Garcetti) and we stand around and do nothing while it happens. In the Hong case he made remarks his department chairs and deans didn't like so he got slapped by denial of a raise. This happens all the time and since faculty are all a) isolated by divide and conquer self interest, and b) not supported by Supreme Court decisions, there is no free speech and we cannot express freedom of speech in the workplace, we have to work in fear that some cabal of administrators will use their power to go after people they don't like. Talk about facist control over the workplace. Its like 8th grade bullying or Lord of the Flies supported by the Supreme Court and regressive employment law. Most of us think we can just keep our heads down and do our functional jobs and that this does not concern us. Or we just have a few more years to retirement. What about our profession? As budgets constrict, supreme court decisions regress, corporate behavior increases, the "crisis" mentality will be used by administrators to make decisions that are undemocratic and deleterious for the profession. Faculty workplace governance, shared decision making, workplace democracy will die by a thousand paper cuts as the pot slowly comes to a boil with us in it.

Join the AAUP and form a union and if you can't join anyway and get their $1 million legal insurance policy for when it happens to you. End the" living in fear" cultures of our universities now. Universities may be gone later. Then Congress will have to treat Universities like national parks to protect them from extinction, but since we sometimes criticize the politicians, they won't stand up and do what is right. Universities and professors can't do their job without freedom of speech in and out of class. Universities are an institution that, like the media. stand as an independent institution among others like the capitalist economy or religious institutions and protect freedom. University administrators are part of an elite class aligned with wealthy corporate and political interests that want to squash free speech and any opposition to total control. Look at who appoints higher education governing boards and who is on them and who chooses Presidents.
How many more stories like FSU and Hong will it take for you t get involved?

Come on faculty (and students), wake up!

7. johnny6 - November 15, 2010 at 04:44 am

ciceronow is more than correct in advocating for faculty unions as the very last protection in a violently changing academic workplace. Forget about having academic freedom protected (and there have never truly been such definitive protections in the academic world).

ciceronow is also correct that the main thing standing in the way of unions are tenured, mainline faculty who don't care about the rest of us.

My fondest dream is for every faculty member to wake up one day and have their tenure and tenure track protections removed and to be placed on short or long term contracts just like in the "regular" workforce. It will serve them all right because these putzes never advocate for contingent faculty and most are reluctant to unionize or do anything except preen. Harsh but, in so many cases, true.

8. profurban - November 15, 2010 at 08:54 am

A contrary opinion is that the AAUP has contributed to this problem by protecting faculty who come to campus once or twice a week to teach. Most faculty are outstanding hard workers who are intrinsically motivated for scholarship and teaching. But we all know that many departments have semi-retired faculty forever. At our university the AAUP is peopled by those with low scholarship and poor teaching ratings. If you want to protect academic freedom contribute to the appropriate political campaigns and work to support hirer education. Ask your union to establish and demand fare workload policies (the majority of our AAUP Members -I'd bet would like to make the semi-retired faculty work harder but the union refuses to ask. They defend the union member regardless of the situation).

And, is it clear that this professor in fact got a low merit increase because of his comments? Or is it because he deserved low merit and ALSO made comments?

9. 11223435 - November 15, 2010 at 11:41 am

"hirer education" is a hilarious Freudian slip.....interpret it any way you want!

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