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Ari Fleischer U.

June 15, 2009, 3:08 pm

Okay, before I get started, let me make absolutely clear that I did not write this post in pursuit of my official duties. You’ll see why.

The other day, faculty members at the University of California, Davis, received a memorandum from the Committee on Academic Freedom and Responsibility concluding,

In light of the present deep economic recession and dramatic cuts under discussion at UC Davis, faculty participating in shared governance are in a position in which they may voice strong views and concerns that could lead to lawful but punitive reaction by the administration, including denial of merits and even dismissal. Given the legal and policy realities at hand, we highly recommend that you use caution, restraint, and judgment in your speech and actions in all job-related duties.

Where did that come from? you might ask. Well, it seems to have gone like this.

1. Mr. Ceballos blows a whistle and gets a demotion.

On March 2, 2000, Richard Ceballos, a deputy district attorney for Los Angeles County, wrote a memorandum complaining of inaccuracies in an affidavit for a criminal case. Afterward, he claimed, his superiors subjected him to retaliatory personnel measures, including denial of promotion. He sued, saying among other things that his First Amendment rights had been violated.

The case went to the Supreme Court, whose majority decided, in its 2006 opinion Garcetti v. Ceballos, that

When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Why public employees, particularly?

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v. Churchill, 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign”). Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick, supra, at 143, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (“[G]overnment offices could not function if every employment decision became a constitutional matter”). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.

These restrictions don’t touch all of a public employee’s speech, the Court goes on to say, just speech produced in pursuit of official duties.

The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy…. That consideration–the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case–distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold 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.

So if in the course of doing his duty a DA discovers a flawed affidavit containing inaccuracies, he daren’t mention it unless he’s sure his superiors will be happy to hear about it.

In a dissent, Justice Souter wrote, among other comments, that this troubled him because of its potential application to university professors.

This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to 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 official duties.” See Grutter v. Bollinger, 539 U. S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition”); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967) (“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’ ” (quoting Shelton v. Tucker, 364 U. S. 479, 487 (1960))); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (a governmental enquiry into the contents of a scholar’s lectures at a state university “unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression–areas in which government should be extremely reticent to tread”).

Responding to Souter for the majority, Justice Kennedy noted,

Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12-13. 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.

Which is to say, well, wait and see.

2. Mr. Hong doesn’t get a merit increase.

In 2006, Professor Juan Hong, a full professor in the department of Chemical Engineering and Materials Science at the University of California, Irvine, sued the UC, alleging that he had been denied a “merit” because he had criticized the administration. You see, in the UC, even after tenure, professors are reviewed by their departments and administrators to determine if they’re eligible for an increase of pay owing to merit. For full professors, the interval is normally every three years. If an application for a merit is successful, the professor goes up in “step”—i.e., in the case of Professor Hong, from Professor Step III to Professor Step IV.

According to the court’s opinion, the reviewing faculty found that Hong’s “research activities [were] not at the level commensurate with the rank of Full Professor, Step IV”, and administrators did not overturn the faculty.

But Hong believed he had been denied his merit because he’d criticized the administration and his department, amongst other things objecting because he “felt it was the department’s obligation to its students to staff courses with experienced faculty, rather than younger, transient lecturers”.

In Hong v. Grant [pdf], Judge Cormac Carney ruled that it didn’t really matter why Hong had been denied his merit, because even if he had been denied on account of his statements, rather than on account of a modest research record, it would have been acceptable under Garcetti v. Ceballos.

Mr. Hong is under professional obligation to actively participate in the interworkings and administration of his department, including the approval of course content and manner of instruction.

If I follow the logic correctly, Hong is obliged to participate in the administration of his department. But the definition of “actively participate in the interworkings and administration of his department” appears here to be, “say only those things which won’t lose you a merit increase.”

Now so far, the implication of the case seems to be, don’t say anything bad about how the administration runs the university. None of this seems to touch utterances in the classroom or research. But it doesn’t exclude them, either. As Carney notes, “In the University of California system, a faculty member’s official duties are not limited to classroom instruction and professional research.” Which is to say, official duties include serving on committees and suchlike in addition to classroom instruction and professional research. The clear implication of this sentence is that classroom instruction and professional research would be covered under Garcetti, unless they were specifically exempted by such precedents as Souter cited.

The AAUP is involved in the Hong appeal, as is the Thomas Jefferson Center for the Protection of Free Expression.

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