Legal Watch: Threats to Academic Speech
By Rachel B. Levinson
In March, the AAUP and the Thomas Jefferson Center for the Protection of Free Expression submitted an amicus brief in a case that could have repercussions for all faculty members at public institutions, particularly where faculty participation in governance is encouraged. The case, Hong v. Grant, is on appeal to the U.S. Court of Appeals for the Ninth Circuit.
Juan Hong was a full professor at the University of California, Irvine. Between 2002 and 2004, he challenged the UCI administration on several issues relating to appointments, promotions, and staffing. He raised questions about a colleague’s financial conflict of interest; objected to his department’s use of lecturers over available tenured faculty members; accused the vice provost and dean of unfairly facilitating a colleague’s merit promotion; and objected to the administration’s extending an informal job offer prior to full faculty approval. Hong was subsequently denied a routine merit increase and assigned an increased teaching load. He sued the university, alleging that it had retaliated against him for exercising his First Amendment rights.
The federal district court, in rejecting his claim, relied on the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. In Garcetti, the Court ruled that most public employees are not covered by the First Amendment when they “make statements pursuant to their official duties.” The majority carefully set aside, however, the question of whether its analysis “would apply in the same manner to a case involving speech related to scholarship or teaching.”
The district court in Hong disregarded that language, holding expansively that “an employee’s official duties are construed broadly to include those activities that an employee undertakes in a professional capacity to further the employer’s objectives.” The court observed that in the University of California system,
a faculty member’s official duties are not limited to classroom instruction and professional research. . . . Mr. Hong’s professional responsibilities . . . include a wide range of academic, administrative, and personnel functions in accordance with UCI’s self-governance principle. . . . UCI allows for expansive faculty involvement in the interworkings of the university, and it is therefore the professional responsibility of the faculty to exercise that authority.
The court also declared that Hong’s comments had “little or no relevance to the community as a whole.”
The amicus brief contends that the district court made several critical errors. First, and most importantly, the court’s implication that “classroom instruction and professional research” are not entitled to First Amendment protection because they are “official duties” flies in the face of Garcetti’s express reservation of the issue of academic speech. The brief also argues that speech related to shared governance emanates from faculty members’ broader right to academic freedom, as affirmed by the AAUP’s statement On the Relationship of Faculty Governance to Academic Freedom: “The academic freedom of faculty members includes the freedom to express their views . . . on matters having to do with their institution and its policies.”
In addition, by equating the university’s grant of “expansive faculty involvement” to an obligation that faculty members “exercise that authority,” the court disregarded UCI’s academic personnel manual, which distinguishes between faculty members’ professional rights and professional responsibilities.
Finally, the brief highlights the extraordinarily perverse and counterintuitive outcome of the decision: it is at those institutions that most strongly promote faculty involvement in collaborative governance where faculty will be least protected against retaliation for exercising their First Amendment rights. Although this result is, in some ways, a corollary of the Garcetti opinion itself— which led commentators to observe that public employees would be protected only when they spoke on matters on which they had no expertise or when they made their complaints public—it poses special risks on the university campus. The more effective shared governance is, the more difficult it is to decouple it from academic freedom—and the more faculty limit their participation in institutional governance, the more likely they are to self-censor in other contexts as well. It remains to be seen whether courts will recognize the distinctive nature of the university and draw boundaries around speech related to teaching, scholarship, and institutional governance and policies.
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