Faculty Freedom of Speech
A public institution of higher education must tread carefully when it fires or refuses to hire a professor because of something he or she said, even when that speech is offensive, racist, or otherwise repugnant. For instance, a professor may express racist opinions while teaching a class or in his scholarship, or a professor may post on social media her discriminatory views relating to the education of mentally challenged students. What happens when the public university or college takes an adverse employment action against a professor based on that professor’s speech?
This article canvasses the history and current state of the law of faculty speech and recommends that public colleges and universities carefully consider certain factors before making employment decisions regarding professors on the basis of their speech.
Government Employee Free Speech Rights
In a line of cases beginning in 1968, the United States Supreme Court created, and then refined, the First Amendment analysis that applies when a government employee (such as a professor who works for a public institution of higher education) is disciplined because of his or her speech. As explained by that line of cases, the First Amendment protection of a government employee’s speech depends on a balance between the interests of the employee, as a citizen, in speaking upon matters of public concern and the interest of the government, as an employer, in promoting the efficiency of the public services it performs through its employees.
The Supreme Court has declared that when a government employee speaks pursuant to his or her job duties—except perhaps when a faculty member speaks in the scholarship or teaching context, as discussed in the next section—the employee is not speaking as a citizen on a matter of public concern and the Constitution does not protect him or her from employer discipline. In such circumstances, the government entity “should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”
By contrast, when a government employee speaks as a citizen addressing a matter of public concern, the First Amendment protects the employee’s speech. In such circumstances, a court is to consider whether the government entity had an adequate justification for treating the employee differently from any other member of the general public. If there is no adequate justification, the employer has violated the First Amendment.
A quick rundown of the key Supreme Court cases sheds some light on how the Court strikes this balance:
Employee’s Speech Was Protected By The First Amendment
- In Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563 (1968), the Court held that a teacher who wrote a letter to the editor of a newspaper that criticized the local school board on fiscal matters was speaking as a citizen on a matter of public concern and thus the First Amendment protected his speech.
- In Perry v. Sindermann, 408 U.S. 593 (1972), the Court determined that a teacher at a two-year state college who spoke out on whether the college should be elevated to four-year status was speaking on a matter of public concern; accordingly, the Court decided that the district court should not have granted summary judgment against the plaintiff when it appeared that his contract had not been renewed as a reprisal for engaging in protected expression.
- In Lane v. Franks, 134 S. Ct. 2369 (2014), the Court held that truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen, even when the testimony relates to his public employment or concerns information learned during that employment. Furthermore, that testimony involved a matter of public concern because it related to corruption in a public program and the misuse of state funds. The Court noted that it was not addressing the different question of whether a public employee speaks as a citizen when he or she testifies in the course of his or her ordinary job responsibilities.
Employee’s Speech Was Not Protected By The First Amendment
- In Connick v. Myers, 461 U.S. 138 (1983), the Court held that an assistant district attorney’s circulation of a workplace questionnaire that revealed her dissatisfaction with her job was not speech on a matter of public concern, except for one question that asked whether her colleagues ever felt pressured to work in political campaigns on behalf of office supported candidates. Because the government employer reasonably believed that the assistant district attorney’s speech would disrupt the office, undermine her superior’s authority, and destroy close working relationships, the Court held that her discharge did not offend the First Amendment.
- In City of San Diego v. Roe, 543 U.S. 77 (2004), the Court held that a police officer was not speaking on a matter of public concern when he produced, marketed, and sold sexually explicit videotapes for profit and in a manner that was linked to his official status as a police officer and designed to exploit his employer’s image.
- In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that a deputy district attorney was speaking pursuant to his official duties when he wrote in a memorandum to his supervisor that an affidavit used to obtain a search warrant contained misrepresentations; when an employee speaks pursuant to his or her official duties, the Court held, an employee would not be speaking as a citizen on a matter of public concern and thus his or her speech was not entitled to protection under the First Amendment. As discussed further below, however, the Court expressly stated that it was not deciding whether speech by faculty in the scholarship or teaching context would be considered to be speech made pursuant to an employee’s official duties and thus unprotected.
Faculty Speech in Academic Scholarship or Classroom Instruction
Unfortunately, the Supreme Court has reserved judgment on how the analysis described above applies to academia. In the 2006 Garcetti case (summarized above), the Court recognized that expression related to academic scholarship or classroom instruction may implicate additional constitutional interests. For this reason, the Court stated that it did not decide whether its analysis would apply in the same manner to a case involving speech related to scholarship or teaching.
This gap in the Supreme Court’s jurisprudence has been addressed by the United States Courts of Appeals for the Fourth and Ninth Circuits, both of which have held that the Garcetti analysis—that speech made pursuant to a government employee’s official duties does not qualify for First Amendment protection—was improper when considering the academic work of a public university faculty member.
In Adams v. Trustees of the Univ. of N. Car.—Wilmington, 640 F.3d 550 (4th Cir. 2011), an associate professor was declared to be speaking as a citizen on matters of public concern when he wrote columns regarding academic freedom, civil rights, campus culture, sex, feminism, and other issues and then included those materials in an application for a promotion.
Similarly, in Demers v. Austin, 746 F.3d 402 (9th Cir. 2014), an associate professor at Washington State University alleged that university administrators retaliated against him for distributing a pamphlet and drafts from an in-progress book. The Ninth Circuit recognized Garcetti’s holding that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens, and thus the First Amendment does not protect their statements. Nonetheless, the Ninth Circuit held that the rule announced in Garcetti did not extend to speech related to scholarship or teaching. Instead, the Ninth Circuit held that teaching and academic writing can be protected by the First Amendment if the employee shows that the speech relates to matters of public concern and if the employee’s interest in commenting upon matters of public concern outweighs the interest of the State in promoting the efficiency of the public services it performs through its employees.
Beyond the Fourth and Ninth Circuits, this issue remains open. And although it is possible that the Supreme Court eventually will resolve this matter, until it does, institutions should take note of the law of the circuit in which they are located, as well as any trends that may emerge nationwide.
Factors to Consider When Deciding Whether To Take An Adverse Employment Action Against An Employee on the Basis of His or Her Speech
Public institutions should consider the following questions before making any employment decisions involving faculty on the basis of their speech:
Speech as a Citizen
Is the speech at issue ordinarily within the scope of an employee’s duties? Or it is speech “as a citizen?” If the latter, it is more likely that the speech is protected by the First Amendment.
Speech in Scholarship or the Classroom
Is the speech at issue made within the scholarship or teaching contexts? If your institution is located within the Fourth or Ninth Circuits, a faculty member’s speech in his or her scholarship or in the classroom is more likely to be protected by the First Amendment, even though such speech might be considered to be made pursuant to that faculty member’s official duties. Outside the Fourth and Ninth Circuits, this is an open issue.
Speech on a Matter of Public Concern
Can the speech be fairly considered as relating to any matter of political, social, or other concern to the community, and/or does it address a subject of legitimate news interest—that is, a subject of general interest and of value and concern to the public? If speech by an employee relates to a matter of public concern, it is more likely to be protected by the First Amendment.
Adequate Justification for an Adverse Employment Action
Does your institution have an adequate justification for treating the employee differently from any other member of the public based on the government’s needs as an employer? In other words, is the employee’s speech disrupting the workplace, undermining the authority of his or her supervisors, or
interfering with workplace relationships? The institution must be able to demonstrate that it was seeking to protect its interests in effectively and efficiently fulfilling its responsibility to
the public, promoting efficiency and integrity in the discharge of official duties, or maintaining proper discipline in public service.
Public colleges and universities must be cognizant that their employment decisions can be challenged as violating a faculty member’s First Amendment right to free speech. Institutions should have policies in place that address faculty speech, and should train their administrators on the First Amendment aspects of their employment actions. Furthermore, institutions should be aware that the state of the law on faculty speech in the classroom or scholarship context is unsettled and varies from jurisdiction to jurisdiction. Please contact the authors of this article if you have questions or would like assistance with policy drafting or training on this issue.
This article appears in the Spring 2016 edition of Saul Ewing’s Higher Education Highlights newsletter. Click here to see the complete newsletter.