By Michael A. Olivas
Professor of Law, University of Houston
Two-term General Counsel, American Association of University Professors
Disappointing rulings are already flowing from the decision of the U.S. Supreme Court in Garcetti v. Ceballos to allow the government to control the speech of its employees. Many of these cases are detailed in a new report from the American Association of University Professors. Though comprehensive, the report does not have the space to list the dozens of cases currently moving through the system, and it could not possibly identify instances where government employees have chosen the path of least resistance by not speaking out or challenging employer decisions, knowing how the deck is now stacked against them.
By the time an important case gets to the Supreme Court, it has been stripped of its sinew and blood, and only the core legal principles remain. Because of this, when discussing Garcetti, college faculty, AAUP and others defending faculty members' free speech need to highlight what it really means to individuals affected by this crabbed reading of the First Amendment.
As I vigorously and frequently exercise my First Amendment and academic freedom privileges, I often have felt the sting from running afoul of authoritarian interests. The following examples are shared here to help build the record against stifling speech and to produce a prophylactic effect against future occurrences.
In one Texas case, I served as an expert witness for a medical student who was falsely accused of cheating, but the public medical college failed to follow its own disciplinary procedures. We won at the early stages, and we even won a moral victory at the state’s highest appeals court, where the medical school was ordered to conduct a proper hearing and follow the rules.
Not surprisingly, the student lost his rehearing, but by this time, we could not prove he had not cheated. Whatever the technical, legal of burden of proof was, we were forced to prove the negative and lost.
Nevertheless, after several public college faculty members served as experts against state agencies, Texas passed a law that precluded state employees, including professors, from serving as consultants or expert witnesses against the state in legal actions. In Hoover v. Morales, the federal court struck down the statute, holding that it was overly broad and covered even statements made as a “matter of public concern.”
An additional awakening came when I helped draft a statute that gave in-state resident college tuition to undocumented high school graduates. The local paper carried a story about my involvement, and I got hate mail and phone calls at my home and office.
Another round of criticism came my way when it became known that I had helped draft the statute requiring Texas colleges to admit students who graduated in the top 10 per cent of their high school classes, fundamentally transforming public college admissions policy in the state.
The program was such a success that a majority of the full-time, first-time freshman at the University of Texas at Austin were being admitted this way. Despite evidence that these students fared better and progressed with higher retention rates than other admits, after several years of unsuccessful advocacy the university finally convinced the Legislature to trim the percentage.
Supportive legislators told me that I was accused of doing this service to advance the interests of my own institution, which was not as impacted by the law as UT-Austin. In an odd way, I was proud of having afflicted the comfortable, and my then-president reported on these rumors to me in a way that he found amusing.
None of this prepared me for the firestorm that hit when it became known that I had helped end a practice of legacy point admissions at a different public institution.
This institution accorded four points of 100 to children and siblings of alumni, and is a college that is disproportionately Anglo in a state that is not. The practice is the inverse of affirmative action, which recognizes groups that have been invidiously discriminated against; legacy admissions, especially practiced at public colleges, are white privilege.
For years, this institution used Hopwood v. Texas — in which the Fifth Circuit ruled that race may not be a factor in considering admissions, even to promote diversity — as a reason for its admissions imbalance. When Hopwood was overturned by Grutter v. Bollinger, this institution nevertheless continued to quietly practice reverse affirmative action through the legacy point system.
Two black officials and I wrote an opinion column calling the institution's leadership out for its hypocrisy. Within days, the legacy policy was discontinued. I had more than a dozen letters, several e-mails and many phone calls calling for my scalp. Most of these were copied to my university president, who called me and congratulated me for the column and its results. He told me that he was proud to have me on his faculty, and would I please let him know next time I was going to do this kind of thing, so he could be prepared to defend me. He also said, “This is why we need tenure and academic freedom.”
In years of teaching, scholarship and public service, I have leaned into the wind and called out wrongdoing when I discovered it. I have not been seriously threatened, but only because I use footnotes, briefs, and r-squares, not more militant means or lunchroom protests. When I was the AAUP general counsel, the Unabomber was still at large, sending letter bombs to university faculty and officials around the country. I had serious discussions about my safety with college security and mail facility officials, at the suggestion of another University of Houston president, who was worried about my high profile. She told me quite memorably that tenure would not protect me from a letter bomb.
More than any letter bomb or physical threat, I am concerned about the more generalized Garcetti fears and silencing that occur in hard economic and political times. The professoriate is being restructured, and it is occurring on cats’ feet.