Amicus Brief Supports Faculty Speech Rights

By Ezra Deutsch-Feldman

The AAUP recently filed an amicus brief on behalf of Loretta Capeheart, a tenured professor of justice studies at Northeastern Illinois University. The case is the latest in a series of cases in which lower courts have relied on the US Supreme Court’s 2006 decision in Garcetti v. Ceballos, which stated that a public employee can be disciplined for speech made as part of the employee’s official duties.

Capeheart sued her university after she was denied appointment as the duly recommended chair of her department. She alleged that the administration refused to appoint her to the position in retaliation for her support for two students who had been arrested by campus police while protesting CIA recruiters at the university’s job fair and for statements she made blaming excessive administrative spending for budget problems that she claimed contributed to the low number of Latino faculty members on campus.

A federal district court dismissed Capeheart’s case, invoking the Garcetti decision in ruling that the university could discipline her because her actions were part of her “professional responsibilities” as a faculty member and student adviser. In its decision, the district court took a very broad view of what a faculty member’s “official duties” are and failed to recognize the unique role that faculty members play at their institution and in society.

Capeheart appealed the district court’s decision to the US Court of Appeals for the Seventh Circuit. The AAUP’s amicus brief in support of Capeheart argues against the district court’s interpretation of Garcetti and emphasizes that the Garcetti decision itself recognized that limitations on speech by public employees may not apply to faculty members at public colleges and universities. The brief states that “scholars must be free to serve as public intellectuals without fear of institutional reprisal, subject only to professional norms of academic responsibility.”

The amicus brief makes the case that professors are in a unique category as public workers and that their protections must be particularly strong. Quoting from an article by Larry Gerber, chair of the AAUP’s Committee on College and University Governance, published in the May–June 2001 issue of Academe, it argues that “for our institutions of higher education to fulfill their educational mission, teachers and researchers need protections that other citizens do not require. In addition, they need affirmative authority to shape the environment in which they carry out their responsibilities.”

The intent of the AAUP’s brief is to highlight the critical academic freedom and First Amendment issues involved in the case.

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