The University of Wisconsin Counters Garcetti v. Ceballos

By Donald A. Downs
Meiklejohn Professor of Political Science and Professor of Law and Journalism
University of Wisconsin–Madison

On April 12, the Faculty Senate of the University of Wisconsin–Madison unanimously enacted an amendment to Chapter 8 of Faculty Policies and Procedures, the university’s rules governing faculty rights and responsibilities. The amendment is designed to protect academic freedom (broadly defined) from infringements that have arisen at other universities and colleges following the 2006 Supreme Court case, Garcetti v. Ceballos. The senate at the University of Minnesota had passed a similar measure a while ago, and we desired to further that effort. We at Wisconsin hope that our actions can serve as a model for other institutions to follow.

Readers who have followed AAUP reports in recent years have heard a lot about Garcetti. The case involved a deputy district attorney who was disciplined for criticizing the manner in which his office authorized search warrants. The Supreme Court upheld the discipline, even though the criticism dealt with a matter of public importance, because the attorney was not speaking as a private citizen about a matter of public concern, but rather pursuant to his “official duties.”

In a dissent, Justice David Souter warned that the decision could affect the academic freedom of professors and other university professionals. As the AAUP declared in its 1994 statement On the Relationship of Faculty Governance to Academic Freedom, faculty must be free “to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the university.”

Lo and behold, some lower federal courts have indeed applied Garcetti to universities; and in so doing, they have defined “official duties” broadly. In one case, an engineering professor was punished for internally criticizing how the University of Wisconsin–Milwaukee was handling a grant he had received from the National Science Foundation; in another case, a professor at the University of California, Irvine, was denied a merit raise because he had criticized the engineering school’s actions concerning hiring, promotions, and staff. In yet another case, a court said that advising a fraternity could fall within the range of official professorial duties.

Higher education is rife with many controversial issues and policies, and faculty members have a fiduciary obligation to speak honestly about them. What are the pros and cons of such matters as budget decisions, admissions policies, affirmative action and diversity plans, grade inflation, rules affecting free speech, hiring policies, the status of athletic departments, and the like? Such questions have important implications for both higher education and the nation; and the liberal education of students obligates us to let them know that debate and conflict reign regarding these issues.

At Wisconsin, we have had vibrant debates about these and other issues over the years. We also have a special historical commitment to academic freedom and shared governance. The university’s official motto—stemming from a famous academic freedom case in 1894—proclaims, “Whatever may be the limits which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.”

In addition, under state law, the “several faculties” of the University of Wisconsin share in the governance of the university, and possess power equal to the board of regents in matters relating to academic freedom, academic standards, course content, tenure, and discipline. The major forums for addressing governance issues are the faculty senates of the UW system schools, though governance extends to such domains as campus departments and units, the public forum of free speech, and the university committees that control the agendas of the respective senates.

The Madison campus has witnessed as many free speech and academic freedom controversies as any other campus in the nation over the course of the last two decades. We have grappled with such issues as student and faculty speech codes, anonymous complaint boxes, a Reebok speech code, several conflicts relating to the student fee system (including a 2000 Supreme Court case on this issue, Board of Regents v. Southworth), department speech codes masquerading as “professional conduct codes,” numerous student newspaper controversies, student discipline reform, and individual cases implicating faculty members and staff. Academic freedom and free speech have prevailed in these cases because of the political mobilization of faculty members, often led by a unique independent group, the Committee for Academic Freedom and Rights.

In the latter half of this decade, the Madison faculty has challenged the regents in cases addressing shared governance, mobilizing through the University Committee, which controls the Faculty Senate agenda, and the Senate itself to assert our co-equal power. We have enjoyed less success in these endeavors, but our efforts enhanced our ability to use the tools of shared governance that are part of our institutional heritage.

So an infrastructure was in place when we decided to address Garcetti last fall. Responding to the encouragement of a student in my First Amendment class, I presented a memorandum on the issue to the University Committee, headed this year by a determined academic freedom advocate, Bill Tracy. Tracy and the UC were immediately on board with the effort, and with the assistance of Steve Underwood and Lee Hansen we drafted a motion to present to the Senate in the spring. Underwood is a member of and legal counsel to the Committee for Academic Freedom and Rights, and Hansen is a member of CAFAR and the president of the recently revived UW-Madison chapter of the AAUP. We presented the motion along with a memorandum signed by nine senators to the Senate for consideration. The Senate discussed the motion during a “first reading” at its March meeting, and then voted on the motion after further discussion at the April meeting.

Some of the previous academic freedom conflicts at Madison divided the faculty, in particular the question of speech codes. But no such division exists when it comes to the fundamental obligation to speak openly and honestly about matters of public importance and university governance, policies, and practices. The only debate in the Senate this April was over whether the amendment to Faculty Policies and Procedures should be even stronger. In the end, we adopted language that we believe preserves the vitality of shared governance:
 
Academic freedom is the freedom to discuss and present scholarly opinions and conclusions regarding all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to reach conclusions according to one's scholarly discernment. It also includes the right to speak or write—as a private citizen or within the context of one's activities as an employee of the university—without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties, the functioning of the university, and university positions and policies.

Academic responsibility implies the faithful performance of professional duties and obligation, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest or concern, one is speaking on behalf of oneself, not the institution.

 See the memorandum and motion presented to the Senate.

Downs is the president of the Committee for Academic Freedom and Rights, and the author, among other books, of Restoring Free Speech and Liberty on Campus (Cambridge University Press, 2006).