Academic Freedom and Employee Speech

Demers v. Austin, 746 F.3d 402 (9th Cir. Wash. Jan. 29, 2014)

In this important decision, the Ninth Circuit Court of Appeals reinforced the First Amendment protections for academic speech by faculty members.  Adopting an approach advanced in AAUP’s amicus brief, the court emphasized the seminal importance of academic speech. Accordingly, the court concluded that the Garcetti analysis did not apply to "speech related to scholarship or teaching,” and therefore the First Amendment could protect this speech even when undertaken "pursuant to the official duties" of a teacher and professor.

The American Tradition Institute v. Rector & Visitors of the University of Virginia & Michael Mann, 2014 Va. LEXIS 54, ---- Va. ----- (Va. April 17, 2014)

In this case the Virginia Supreme Court unanimously ruled that a professor’s climate research records were exempt from disclosure as academic research records, as AAUP argued in an amicus brief submitted to the Court.  The Court explained that the exclusion of University research records from disclosure was intended to prevent “harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.” While the decision was limited to a Virginia statute, it provided a strong rationale for the defense of academic records from disclosure.

Cuccinelli v. Rector & Visitors of the University of Virginia, 283 Va. 420 (2010)

In a 2012 decision the Virginia Supreme Court rejected attempts by then Virginia Attorney General Ken Cuccinelli to compel disclosure of university research records.  Cuccinelli who publicly opposes the theory of global warming, used his position to formally request emails and other documents relating to former faculty member and climatologist Michael Mann from the University of Virginia (UVA) arguing that he had authority to subpoena these records pursuant to the Virginia Fraud Against Taxpayers Act (FATA).  The Supreme Court of Virginia held that state universities, as agencies of the Commonwealth, do not constitute a “person” under the FATA and therefore Cuccinelli had no authority to require release of the records and his appeal was rendered moot. (In another related case, the Virginia Supreme Court rejected a request for these records under the Virginia Freedom of Information Act.)

McEnroy v. St. Meinrad Sch. of Theol., 713 N.E.2d 334 (Ind. Ct. App. 1999)

This case involved the dismissal of a tenured faculty member from the Saint Meinrad School of Theology who signed an open letter to the Pope, asking that continued discussion be permitted concerning the question of ordaining women to the priesthood.

Capeheart v. Terrell, 2012 U.S. App. LEXIS 18278 (7th Cir. 2012)

Professor Capeheart sued Northeastern Illinois University after the provost disregarded a faculty vote electing Capeheart chair of the Justice Studies Department.

Adams v. University of North Carolina–Wilmington 7:07-cv-00064-H (E.D.N.C. Mar. 15, 2010

Tenured Professor Michael Adams sued the University of North Carolina-Wilmington after he was denied a promotion, alleging this denial was retaliation for his political speech and his speech criticizing the school.  The AAUP, the Thomas Jefferson Center for the Protection of Free Expression, and the Foundation for Individual Rights in Education filed an amicus brief in the Fourth Circuit supporting Professor Adams.

Ward Churchill v. University of Colorado at Boulder, 2010 Colo. App. LEXIS 1745 (2010)

In a jury trial in the Colorado District Court in Denver, a jury found that Churchill’s protected speech – his controversial writings about September 11 – was a substantial or motivating factor for the Board of Regents’ decision to discharge him from his tenured position. The district judge overturned the jury’s verdict and ruled in favor of the Regents as a matter of law.  On February 18, 2010, the AAUP joined the ACLU and the National Coalition Against Censorship in filing an amicus brief in support of the appeal by Professor Ward Churchill to the Colorado State Court of Appeals. 

Hong v. Grant, 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 and was later denied a merit raise.  The Ninth Circuit Court affirmed a federal district court decision that rejected a faculty member’s First Amendment retaliation claim against his administration by applying Garcetti in a university context

Garcetti v. Ceballos, 547 U.S. 410 (2006)

The United States Supreme Court ruled that a public employee does not receive First Amendment protection when speech is made pursuant to his or her official duties.  The AAUP and the Thomas Jefferson Center for the Protection of Free Expression submitted a brief that opposed the official duties standard, but also made a separate claim cautioning the troubling implications for academic speech at public institutions. Fortunately, the Court refrained from applying their analysis to academic speech, 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.”