547 U.S. 410 (2006)
Despite positive language by the Supreme Court majority, recognizing that academic speech may need to be treated differently, this case has resulted in a weakening of protections for public employees and faculty members at public institutions.
Richard Ceballos, a district attorney in California, was demoted and transferred after he wrote a memorandum to his supervisors, criticizing certain practices by the sheriff’s department. Ceballos subsequently sued his supervisors, arguing that they had retaliated against him for writing the memorandum and violated his First Amendment right to free speech. After a trial court dismissed Ceballos’s claim, ruling that his memorandum was not protected speech because it was written as part of his employment duties, the Ninth Circuit overturned the decision, ruling that First Amendment protections did apply.
On appeal, the Supreme Court reversed the circuit court and 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.” The Court reasoned that public employers must have the ability to restrict the speech of their employees in order for public institutions to operate efficiently and effectively.
In its decision, the Supreme Court acknowledged a concern over how this decision might affect academic freedom in public colleges and universities, 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.” The majority in Garcetti thereby suggested that its employee-speech analysis may not apply to academic settings.
As subsequent cases demonstrate, lower courts have come to difference conclusions regarding the extent of the academic carve out and its application in different factual contexts.
2014 U.S. App. LEXIS 1811 (9th Cir. Wash. Jan. 29, 2014) (Important note, previous opinion dated September 4, 2013 and published at 729 F.3d 1011 was withdrawn and substituted with this opinion.)
Professor Demers became a faculty member at Washington State University (WSU) WSU in 1996 and he obtained tenure in 1999. Demers taught journalism and mass communications studies at the university in the Edward R. Murrow School of Communication. Starting in 2008, Demers took issue with certain practices and policies of the School of Communication. Demers began to voice his criticism of the college and authored two publications entitled 7-Step Plan for Improving the Quality of the Edward R. Murrow School of Communication and The Ivory Tower of Babel. Demers sued the university and claimed that the university retaliated against him by lowering his rating in his annual performance evaluations and subjected him to an unwarranted internal audit in response to his open criticisms of administration decisions and because of his publications.
The district court dismissed Demers’ First Amendment claim, stating, primarily, that Demers made his comments in connection with his duties as a faculty member. Unlike most recent cases involving free speech infringement at public universities, the district court’s analysis did not center on the language from Garcetti v. Ceballos, 547 U.S. 410 (2006). Instead, the court applied a five part test set out by the Ninth Circuit in a series of public employee speech cases and found that Demers was not speaking as a private citizen on matters of public concern. Therefore, his speech was not protected by the First Amendment.
Demers appealed to the Ninth Circuit. The AAUP joined with the Thomas Jefferson Center for the Protection of Free Expression to file an amicus brief in support of Demers. The amicus brief argued that academic speech was not governed by the Garcetti analysis, but instead was governed by the balance test established in Pickering v. Board of Education, 391 US 563 (1968). The Ninth Circuit agreed and issued a ruling that vigorously affirmed that the First Amendment protects the academic speech of faculty members.
The Ninth Circuit emphasized that “the Supreme Court has repeatedly stressed the importance of protecting academic freedom under the First Amendment.” Thus, the Supreme Court recently explained, "We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Citing Grutter v. Bollinger, 539 U.S. 306, 329 (2003). The Ninth Circuit also noted that in Garcetti the Supreme Court, concerned over the possible threat to academic freedom, reserved the question of whether the Garcetti analysis applied to speech related to scholarship or teaching.
Given the seminal importance of academic speech, the Ninth Circuit concluded that the Garcetti analysis did not apply to teaching and academic writing, even when undertaken "pursuant to the official duties" of a teacher and professor. Instead, as argued in the amicus brief, the court held that academic employee speech was protected under the Pickering balancing test. Applying this test, the court found that the speech was protected as it addressed a matter of public concern but that there were additional factual questions that required resolution. Therefore the Ninth Circuit reversed the decision in favor of the University and remanded the case for further proceedings.
Interestingly, on January 29, 2014, the U.S. Court of Appeals for the Ninth Circuit issued an opinion withdrawing and modifying its previous opinion in Demers v. Austin, 729 F.3d 1011 (September 6, 2013). Originally, the court held that "teaching and writing on academic matters" by publicly-employed teachers could be protected by the First Amendment because they are governed by Pickering v. Board of Education, not by Garcetti v. Ceballos. In its 2014 superseding opinion, the defined the category of potentially protected speech as "speech related to scholarship or teaching." This description is arguably broader than the original phrasing and matches the language from the Supreme Court’s Garcetti decision. See Garcetti, 547 U.S. at 425. The 2014 opinion also denied the University’s petition for a rehearing and the petition for a rehearing en banc.
665 F.3d 732 (6th Cir. 2012)
Scott Savage was the head reference librarian at Ohio State University at Mansfield. In 2006, Savage served on a committee choosing a book to assign to all incoming freshman. His suggestion, The Marketing of Evil – a book that an Ohio federal district court found contained “a chapter discussing homosexuality as aberrant human behavior that has gained general acceptance under the guise of political correctness” – led to considerable controversy among campus faculty. Several gay faculty members filed sexual harassment complaints against Savage with the university, and Savage filed his own complaints of harassment against several faculty members. After the university rejected both sides’ charges, Savage resigned and sued, claiming he was retaliated against in violation of the First Amendment. The appeals court applied Garcetti and ruled that Savage’s speech was not protected and affirmed the grant of summary judgment against the plaintiff. The court explained, "Savage's speech as a committee member commenting on a book recommendation was not related to classroom instruction and was only loosely, if at all, related to academic scholarship. Thus, even assuming Garcetti may apply differently, or not at all, in some academic settings, we find that Savage's speech does not fall within the realm of speech that might fall outside of Garcetti's reach."
640 F.3d 550 (4th Cir. 2011)
Michael Adams is a tenured associate professor at the University of North Carolina-Wilmington (UNCW) and a self-described conservative Christian. His political discussions with faculty and his public political commentary – including a column he published on Townhall.com, in which he criticized the university as religiously intolerant, as well as a related political book – sparked several incidents at UNCW. Adams applied for a promotion to full professor, listing his Townhall.com column and related political book in his promotion application. After he was denied the promotion, he sued, alleging this denial was retaliation for his political speech and speech criticizing UNCW.
On appeal, the Fourth Circuit held that Garcetti contains a clear reservation of the application of its analysis to academic speech at a public university. The court pointed out that the Supreme Court explicitly left open the question of whether the “official duties” analysis applies where issues of "scholarship or teaching" are in play. The circuit court reasoned that “[a]pplying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment.” Choosing to recognize the particular characteristics of a professor’s appointment, the court noted that “Adams’ speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields.”
The Fourth Circuit also concluded that “Adams’ speech was clearly that of a citizen speaking on a matter of public concern.” Such speech is explicitly protected by the First Amendment, and the court rejected the district court’s reasoning that Adams’ speech should not receive First Amendment protection because he included his publications in his promotion packet. The circuit court held that the district court’s decision that protected speech was converted into unprotected speech was an error as a matter of law.
617 F.3d 931 (7th Cir. 2010)
A Professor and Chief of Department of Surgery at University of Illinois College of Medicine at Chicago engaged in speech that fell within the broad ambit of his employee responsibilities when he spoke out regarding risk management, the fees charged to physicians, surgeon abuse of prescription medications and other issues that affected the surgical department. However, the Court stated "We also reject Abcarian's unsupported assertion that his speech could be considered "expression related to academic scholarship or classroom instruction" possibly exempt from Garcetti. See 547 U.S. at 425. Abcarian's speech involved administrative policies that were much more prosaic than would be covered by principles of academic freedom."
403 Fed. Appx. 236 (9th Cir. 2010)
Juan Hong, a tenured professor at University of California-Irvine, criticized a number of decisions about hiring, promotions, and staffing at the school of engineering. When he was denied a merit raise, he sued, asserting that his First Amendment rights had been violated. The federal trial court, relying on the “official duties” analysis from Garcetti, ruled against him, concluding that a public university “is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”
Professor Hong appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, and the AAUP and the Thomas Jefferson Center for the Protection of Free Expression filed an amicus brief in support of his appeal. In November 2010, the appeals court ruled that the officials at UC-Irvine were immune from suit, and declared that it would “leave the question of whether faculty speech such as Hong’s is protected under the First Amendment for consideration in another case.”
541 F 3d 769 (7th Cir. 2008)
Kevin Renken, a tenured engineering professor at the University of Wisconsin-Milwaukee, became embroiled in a dispute with his dean over the administration of a National Science Foundation grant. The university finally returned the funding and Renken sued the university, arguing that he had been retaliated against for criticizing the university’s use of grant funds. The United States Court of Appeals for the Seventh Circuit ruled that because Renken was a principal investigator on the project, administering the grant was “within the teaching and service duties that he was employed to perform,” and that his complaints therefore were not protected by the First Amendment.
561 F. 3d 179 (3rd Cir. 2009)
In 2007, Wendell Gorum, a tenured professor at Delaware State University, sued DSU, contending that the university had terminated him because of his support for a football player advisee and several public clashes with DSU’s president, Allen Sessoms. The United States Court of Appeals for the Third Circuit rejected his arguments, ruling that a public employee’s speech could be “part of his official duties if it relates to ‘special knowledge’ or ‘experience’ acquired through his job.” The court did acknowledge that the Garcetti decision suggested that academic speech might be treated differently, but reasoned that “Gorum’s actions so clearly were not ‘speech related to scholarship or teaching.’”
C-08-03438 (N.D.Cal. 2009)
June Sheldon began teaching biology at California’s San Jose Community College in 2004. During her summer 2007 Human Heredity course, a student complained about a class discussion regarding homosexuality. In December 2007, after investigating the complaint, the community college’s administration withdrew Sheldon’s offer to teach in spring 2008 on the grounds that she was teaching misinformation as science. Sheldon sued in federal court, alleging that she was fired in retaliation for her in-class answer to a student’s question, and that her classroom instruction was protected by the First Amendment. In this decision, the court rejected the college’s reliance on the Garcetti decision, noting that “by its express terms,” the decision did “not address the context squarely presented here: the First Amendment’s application to teaching-related speech.” The court observed that prior appeals court opinions had, in the court’s words, “recognized that teachers have First Amendment rights regarding their classroom speech, albeit without defining the precise contours of those rights.” The court also noted that the Supreme Court has held that “a teacher’s instructional speech is protected by the First Amendment, and if the defendants acted in retaliation for her instructional speech, those rights will have been violated unless the defendants’ conduct was reasonably related to a legitimate pedagogical concern.” Because the court could not determine at this stage whether the community college terminated her employment on the grounds of reasonable pedagogical concerns, it denied the motion to dismiss. In July 2010, the community college district settled the case by agreeing to pay Sheldon $100,000 and removing from her file references to her dismissal.
680 F. Supp. 2d 263 (D. Maine Jan. 28, 2010)
Ellen Decotiis is a speech language therapist who taught disabled children for Maine’s Child Development Services (CDS) agency. In 2008, the Maine legislature passed a rule that summer teaching services would be available only to those students for whom it was “necessary to comply with federal law.” Because one CDS office for which Decotiis provided no information about how students would be chosen to receive summer teaching services, Decotiis urged her students’ parents to contact advocacy groups for the disabled to determine “their rights under state and federal laws,” posting contact information for these groups in her office. The director of the local CDS office complained that Decotiis was “out to get her,” and a few months later Decotiis’s annual contract was not renewed. Decotiis sued, alleging that she had been illegally retaliated against her under First Amendment. A federal district court in Maine dismissed Decotiis’s First Amendment claim because it held that her speech was “pursuant to her official duties” under Garcetti. The court reasoned that “providing therapy” was Decotiis’s official duty, and the speech at issue was sufficiently related to that duty because it involved whether her students would be receiving therapy, occurred during Decotiis’s therapy sessions, and was only spoken to parents of her students (rather than the general public). Further, the court decided that the speech was “influenced and informed by her position as a therapist” because she had asked her superiors about the summer teaching policy.
2010 U.S. App. LEXIS 3495 (2d Cir. Unpublished, 2010)
In this case, Chukwumeziri Ezuma, a professor at the City University of New York (CUNY), claimed that he was retaliated against for supporting the sexual harassment complaint of another faculty member, who complained to Ezuma about the harassment while he was chair of her department. Ezuma relayed the complaints to administration officials and discussed her accusations with lawyers and police investigating the complaints. When Ezuma was removed as department chair and from various academic committees, he sued, claiming that these actions were retaliation for his speech about the sexual harassment. The Second Circuit ruled that Ezuma’s speech, including his discussions with lawyers and the police, was made “pursuant to his official duties” because, as department chair, he was obliged to report accusations of sexual harassment. Although noting that Garcetti had exempted speech concerning “academic scholarship or classroom instruction,” the court decided that “the instance case has nothing to do with academic freedom or a challenged suppression of unpopular ideas… The speech at issue here could have occurred just as easily in a private office, or on a loading dock.”
694 F Supp 2d 817 (S.D. Ohio, 2010)
Dr. Elton Kerr, an OB/GYN, was an assistant professor at Wright State School of Medicine and was employed by an affiliated organization of the school to perform medical services. Dr. Kerr also served as Director of the Center for Women’s Health at the Miami Valley Hospital, where most of Wright State faculty’s clinical work was done. In 2005, Wright State terminated Dr. Kerr’s appointment because it claimed he had breached his employment contract by, among other things, failing to maintain active privileges at Miami Valley Hospital. Dr. Kerr sued, alleging that his supervisor had retaliated against him, in violation of the First Amendment, because Dr. Kerr advocated for vaginal delivery over Caesarean sections (C-Sections) in his class and in teaching hospital resident physicians. A federal district court in Ohio concluded that Dr. Kerr’s advocacy of vaginal delivery over C-Sections was a matter of public concern, noting several recent newspaper articles about C-Sections. The court also rejected defendants’ argument that Dr. Kerr’s speech was not protected under Garcetti, holding that “recognizing an academic freedom exception to the Garcetti analysis is important to protecting First Amendment values. Universities should be the active trading floors in the marketplace of ideas.” The case is currently on appeal before the Sixth Circuit.
707 F. Supp 2d 561 (W.D. Pa. 2010)
Tammy Whitfield was an assistant superintendent in the Pennsylvania Chartiers Valley School District who testified at the disciplinary hearing of a teacher in the district. Two board members attended the hearing and loudly expressed their disapproval of her testimony. After the board later failed to renew her 5-year contract, Whitfield filed suit alleging that she had been retaliated against for her testimony in violation of her free speech rights. The defendants argued that Whitfield’s speech was not protected under Garcetti, but a federal district court in Pennsylvania distinguished Garcetti on the grounds that the school board had no right to control the content or manner of Whitfield’s testimony. Indeed, such control would violate the due process rights of Whitfield and the teacher being investigated, said the court. Then the court applied the Pickering-Connick test to Whitfield’s speech, finding that: (1) her testimony was a matter of public concern both because of its setting in front of an official government adjudicatory body, and because it was a local controversy that divided public opinion and prompted several newspaper articles; and (2) the balancing of interests favored Whitfield because the defendants failed to show that her testimony damaged any government interest in efficiency or effectiveness.
697 F. Supp. 2d 367 (E.D.N.Y. 2010)
Two faculty members at City University of New York criticized their department chairperson, claiming she was bypassing faculty committee processes and was biased in her handling of faculty evaluations. The faculty alleged that the department chair retaliated against them for these complaints, in violation of the First Amendment. A federal district court in New York held that their complaints about committee matters were not protected speech under Garcetti because they “involved employee, as opposed to citizen, speech” that was “ ‘part and parcel’ of plaintiffs’ concerns about their ability to properly execute their duties as faculty members elected to, and serving on, various committees.” The Court also held that the plaintiffs’ other complaints about personnel decisions did not involve matters of public concern because they “were complaining about matters affecting them, and them alone” and their motivation in complaining “was plainly to redress personal grievances.”
605 F 3d 345 (6th Cir. 2010)
Susan Fox was a Michigan elementary school special-education teacher who complained to her supervisors that her teaching load exceeded the legal limit. In 2007 the school decided not to renew her probationary teaching contract, citing her failure to complete required student Medicaid reports on time, her unauthorized delegation of responsibilities to teaching assistants, and her failure to provide the minimum required instructional time to students. Fox sued, claiming the non-renewal was retaliation for her speech in violation of the First Amendment. The Sixth Circuit held that Fox’s complaints were not protected speech under Garcetti, noting that “speech by a public employee made pursuant to ad hoc or de facto duties not appearing in any written job description is nevertheless not protected if it ‘owes its existence to [the speaker’s] professional responsibilities.’” It determined that Fox’s complaints “‘owed [their] existence to” her teaching responsibilities and were therefore not protected. The court also relied on the fact that Fox’s complaints were directed solely to her supervisor, rather than the general public, distinguishing other cases where plaintiffs had been successful on the grounds that they involved speech “outside the ordinary chain of command.”
In these two related cases decided on the same day, a federal district court in Michigan ruled that the Garcetti “official duties” analysis does not apply when public employees speak on a matter of public concern behalf of a union or another organization, rather than in their capacity as public employees.
In Petrich, a police officer for the City of Flint, Michigan, was also the president of the Flint branch of the African-American Police League (AAPL). After a new acting police chief was appointed, Officer Petrich strongly criticized the appointment in a local newspaper interview in which he was identified as the president of the AAPL. He was then disciplined under a new policy preventing police officers from speaking to the media without prior permission and he sued, claiming that the policy was unconstitutional and that the city had violated his First Amendment free speech rights. The court first ruled that Officer Petrich had spoken on a matter of public concern; in the court’s view, “public safety concerns require a well-run police force, and [Petrich] expressed his view that this expectation would not be met under [the acting chief’s] leadership. Nothing in [Petrich’s] comment indicates a purely personal vendetta . . . .” The court also ruled that Garcetti did not strip Officer Petrich’s speech of protection; because the City of Flint had “no interest in controlling the speech of the AAPL,” where Officer Petrich “spoke to the media in his capacity as president of the AAPL, rather than as a police officer, Garcetti does not bar his First Amendment claims.” Finally, the court ruled that the City failed to show that Officer Petrich’s comments interfered with the operations of the police department or caused disharmony among his co-workers, and that the AAPL’s interest in expressing its views was therefore greater than the City’s in maintaining police discipline. As the court further noted, “Plaintiff’s statements as head of the AAPL do not undermine the authority of the police chief. Although the AAPL’s views may conflict with Defendant’s, this does not constitute insubordination.” The court did emphasize that Officer Petrich was authorized to speak on behalf of the AAPL, and suggested that that was a critical element of its decision.
Speer also involved a police officer for the City of Flint, who was president of the Flint Police Officers’ Association (FPOA), the police officers’ union. Officer Speer spoke to the media – as he had frequently done in the past in his capacity as union president – about his dissatisfaction with the appointment of the new acting police chief. Pursuant to the new media policy, he was disciplined, and he sued, alleging that his First Amendment rights had been violated. The court first concluded that Speer’s speech was on a matter of public concern, observing that “Flint residents have a strong interest in the correct operation of the Flint Police Department because of its central role in maintaining public safety. They therefore have an interest in Defendant’s attempts to silence the police union.” The court also noted that Speer’s comments were “particularly relevant to outsiders, as they would be most affected by Defendant’s decision to restrict statements to the media.” The court next ruled that Speer’s speech remained protected after Garcetti. As the court reasoned, quoting to Garcetti, “the City’s interest in ‘controlling speech’ and ensuring ‘substantive consistency’ is considerably reduced in connection with the speech of a union official, due to the inherent tension between the union and the administration. The collective bargaining system envisions a dynamic between employer and union [that] is unlike the relationship between employer and employee; this includes the expression of sometimes conflicting opinions. An employer cannot expect to control the union’s speech in the same way it would control an employee’s.” Finally, the court ruled that Speer’s speech did not interfere with the performance of his duties or cause disharmony among his coworkers. As the court drily noted, “given the actions taken just prior to Plainitff’s discipline, such as closing the jail and laying off police officers, some discord between the police officers’ union and the administration could be expected.” Because the City did not exercise authority over Speer when he spoke as the president of the FPOA, his statements on behalf of the FPOA did not undermine the police chief’s authority; as the court put it, “although the union’s views may conflict with Defendant’s, this does not constitute insubordination.”
2011 US Dist. LEXIS 121414 (M.D. La. 2011)
Ivor van Heerden, a coastal geologist and hurricane researcher, began his full-time faculty service at Louisiana State University (LSU) in 1992, when he was appointed as associate professor-research. In 2000, van Heerden co-founded the LSU Hurricane Center and was serving as its deputy director when Hurricane Katrina hit the Gulf Coast in August 2005. Following the storm, van Heerden was selected to head a group of scientists charged with investigating the causes of the extensive flooding in New Orleans. As a result of his research, van Heerden began speaking out publicly about his concerns that the US Army Corps of Engineers had failed to properly engineer the levees in New Orleans, causing a “catastrophic structural failure” which led to the city’s flooding. In response to these comments, which they challenged , the LSU administration ordered van Heerden to stop making public statements and ultimately removed him from the group of scientists researching the New Orleans flooding. In May 2006, van Heerden published The Storm in which he outlined his theories concerning the Army Corps’ role in the levee failures and exposed LSU’s efforts at silencing him. LSU responded by further stripping him of his teaching duties and finally refused to renew his contract after nearly 20 years of employment with the university.
Following the termination of his services, van Heerden sued LSU for a variety of claims including defamation, retaliation based on his protected First Amendment speech, and breach of contract. Through a series of decisions the federal district court for the Middle District of Louisiana dismissed a number of his claims, but on October 20, 2011, the court ruled that van Heerden could proceed with arguing that the administration’s action to terminate his appointment was in retaliation for his public comments about the culpability of the Army Corps of Engineers. It is especially important to note that the court expressed particular concern about what it viewed as the misapplication of Garcetti’s principles to academic speech. Specifically, the court stated that it “shares Justice Souter’s concern that wholesale application of the Garcetti analysis to the type of facts presented here could lead to a whittling-away of academics’ ability to delve into issues or express opinions that are unpopular, uncomfortable or unorthodox. Allowing an institution devoted to teaching and research to discipline the whole of the academy for their failure to adhere to the tenets established by university administrators will in time do much more harm than good.”
An AAUP investigating committee’s report on the van Heerden case, published in July 2011, concluded that the administration “decided not to retain Professor van Heerden largely in retaliation for his continuing dissent from the prevailing LSU position on the failed levees and the New Orleans flooding, thereby violating his academic freedom."
In February 2013, several days before the federal jury trial was scheduled to begin, van Heerden and LSU settled the dispute out of court. Van Heerden reportedly received $435,000 from LSU. See Bill Lodge, LSU Settles van Heerden Case for $435,000, The Advocate (Feb. 27, 2013), http://www.theadvocate.com/home/5294342-125/lsu-settles-van-hererden-case.