Legal Watch: Faculty Speech

By Rachel B. Levinson

Under a decision issued by the U.S. Supreme Court this term, public employees with concerns about the internal operations of their employers now face a difficult choice. If they raise their concerns internally, they may face retaliation against which they may have no protection under the Constitution; if they instead go straight to the media, they may enjoy constitutional protection but face an awkward working environment and charges of having sidestepped internal grievance procedures. Fortunately, the Supreme Court’s opinion recognized that faculty members at public institutions are in a unique situation that may merit more protections, but the decision warrants continuing attention.

The case, Garcetti v. Ceballos, involved a district attorney in California, Richard Ceballos, who suspected that a sheriff had included false statements in an affidavit. Ceballos gave his supervisors a memorandum criticizing the underlying criminal case and was subsequently demoted and transferred. Ceballos sued his supervisors, arguing that they had retaliated against him because of his memorandum, violating his free speech rights under the First Amendment.

The trial court dismissed Ceballos’s claim, ruling that his memorandum was not protected by the First Amendment because it was written as part of his employment duties. An appeals court overturned that decision, ruling that Ceballos’s speech was protected. The appeals court looked at whether Ceballos’s speech addressed a matter of public concern and then weighed his interest in expressing himself against the government’s interests in workplace efficiency and lack of disruption. The appeals court reasoned that because Ceballos’s memorandum exposed governmental misconduct, his speech was “inherently a matter of public concern.” The court also noted that this good faith execution of his job duties was unlikely to cause disruption.

The Supreme Court, however, rejected the appeals court’s analysis. In a surprise to legal observers, the Court held 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.” In reaching its decision, the Court characterized a public employee’s official speech as a product “commissioned or created” by the employer.

Fortunately, the Court also recognized (as the AAUP argued in a friend-of-the-court brief it submitted with the Thomas Jefferson Center for the Protection of Free Expression) that academic speech occupies a unique place in the realm of public discourse. In a dissent, Justice Souter expressed his hope that the decision “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.’” Justice Kennedy, writing the decision, recognized this concern, noting that “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.”

At some point, the Supreme Court or lower federal courts will have to address even more directly the question of academic speech. In doing so, they will face the difficult question of what kinds of faculty speech are protected. Faculty speech in the classroom has enjoyed longstanding constitutional protection; the Supreme Court declared in 1967 that “our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us.” More recently, in the 2003 Michigan affirmative action cases, the Court reaffirmed “the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment.” Will speech criticizing an administration be viewed as having equal importance? Is faculty speech to be considered “speech that owes its existence to a public employee’s professional responsibilities”? Such an argument raises serious implications not only for free speech but also for questions of faculty ownership of intellectual property, including lectures, syllabi, and articles. As the courts begin to turn to thorny questions of academic speech in public institutions, these issues are well worth watching. ¨

Rachel Levinson is AAUP associate counsel.

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