A federal court ruling at the beginning of April offered some tentative good news on the First Amendment rights of faculty members at public colleges and universities. The case was the most recent to wrestle with how a 2006 Supreme Court decision, Garcetti v. Ceballos, affects the rights of faculty members in public higher education to speak on a variety of issues.
Private employers are largely unhampered by the First Amendment when it comes to control over their employees’ speech while carrying out duties on the job. Public institutions generally have greater obligations under the First Amendment than do private businesses – but in Garcetti, a narrow majority of the Supreme Court held that when public employees speak “pursuant to their official duties,” they are not protected by the First Amendment.
The Court acknowledged, however, that there are “additional constitutional interests” at stake when it came to “expression related to academic scholarship or classroom instruction speech,” and therefore declared that it was not deciding whether its “official duties” analysis also applied to “speech related to scholarship or teaching.”
Since then, a number of courts have tackled the question of First Amendment rights for public-sector faculty members. While some have recognized Garcetti’s reservation for academic speech, a number have concluded that a variety of kinds of expression – including service on faculty committees, criticism of institutional decision-making, and student advising – are nevertheless unprotected. Some rulings have simply ignored the reservation entirely.
This history underscores the importance of the early April decision in Adams v. UNC-Wilmington, in the US Court of Appeals for the Fourth Circuit.
Michael Adams is a tenured associate professor of criminology at the University of North Carolina-Wilmington. He joined the Department of Sociology and Criminal Justice in 1993, winning several awards and earning strong teaching evaluations. In 2000, he became a self-described Christian conservative and an active conservative commentator on a variety of social issues, causing tension with his colleagues and drawing complaints from the university community and the public.
In 2004, Adams applied for a promotion to full professor. After a majority of his department voted against his promotion application, Adams filed suit in federal court, claiming that the university had violated his First Amendment rights by retaliating against him for his speech and discriminating against him on the basis of his viewpoint.
Relying on Garcetti’s “official duties” approach, but not mentioning its possible exception for speech related to scholarship or teaching, the trial court ruled against Adams. Because he had included citations to his columns and other extracurricular writings in his application for promotion, the court held that he had essentially transformed them into unprotected speech, and even suggested that no materials in a promotion file would be protected by the First Amendment.
Adams appealed the decision and the American Association of University Professors (AAUP) filed a “friend of the court” brief, along with the Thomas Jefferson Center for the Protection of Free Expression and the Foundation for Individual Rights in Education.
On April 6, the Fourth Circuit reversed the district court decision. The appeals court reached two important conclusions: first, that there was no support for the proposition that Adams’s speech was “transformed” into unprotected speech when he included it in his promotion application; and second, that at least under the facts of this case, the Garcetti analysis “would not apply in the academic context of a public university.” The court did not rule on whether Adams should have been promoted, but it had a lot to say about his freedom of speech.
The court reasoned that Adams’s commentary should fall within the reservation for speech related to scholarship or teaching. Although UNC had argued that Adams’s speech should be unprotected under Garcetti precisely because the university paid him to be a scholar and a teacher, the court noted that if Garcetti were applied so strictly, a wide range of public speech and service by public-sector faculty members would be left unprotected by the First Amendment. In the court’s words, this outcome “would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.”
The court also expressed concern about the impact that the university’s argument would have on the “additional constitutional interests” that the Supreme Court identified in Garcetti. The appeals court therefore held that while faculty members will naturally “engage in writing, public appearances, and service within their respective fields,” that involvement was too “thin [a] thread” to leave Adams’s speech unprotected under Garcetti.
The Fourth Circuit therefore remanded the case to the district court, and instructed it to consider whether Adams’s interest in speaking on these matters outweighed the university’s interest in “providing effective and efficient services to the public,” and whether the speech was actually a substantial factor in the decision not to promote him.
This decision suggests some important principles, and also leaves open a few questions.
First, the court clearly stated that when a faculty member at a public college or university speaks on a matter that is of general interest to the public, he or she is protected by the First Amendment – just as any public employee should be. The panel also rejected the suggestion that because the scope of faculty members’ duties on the job can be broad, any speech related to those wide-ranging duties is unprotected.
Nevertheless, the appeals court appeared to rest its decision at least in part on the fact that Adams’s speech did not, in fact, arise from his assigned duties. As the court put it, the commentary was “intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams’s assigned teaching duties at UNCW or any other terms of his employment….” Although the court also clearly recognized that penalizing speech related to a faculty member’s duties would be at odds with Garcetti and with important constitutional interests, subsequent courts might wrongly conclude that where a faculty member’s speech is related to his or her specific university-assigned duties, it is not protected.
In addition, the court speculated that where a faculty member at a public university has “assigned duties” that include a “specific role in declaring or administering university policy,” speech related specifically to those duties might not be protected by the First Amendment. This passage (which is not binding) should apply only to those faculty members who are appointed to administrative positions in which they are expected to speak or act on behalf of the university administration. The vast majority of faculty members who take part in shared institutional governance have not been directed to “declare or administer” university policy. Thus, for instance, criticism by a faculty member of administrators’ salaries, budget decisions, or town-gown relations – whether acting on his own or as a member of the faculty senate, an AAUP chapter, local union, or a faculty committee – should remain squarely protected by the First Amendment. Nevertheless, it remains to be seen how later courts will interpret this aspect of the decision.
The Adams decision will encourage other courts to recognize the heightened interests in free speech, open debate and criticism at public colleges and universities. With a post-Garcetti landscape that is still unsettled, however, public-sector faculty members do not yet have the clear-cut affirmation of their rights that they need and deserve.