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Hong v. Grant, 403 Fed.Appx. 236 (9th Cir. 2010)

On March 17, 2008, the AAUP and the Thomas Jefferson Center for the Protection of Free Expression filed a jointly-authored amicus brief (.pdf) in the U.S. Court of Appeals for the Ninth Circuit.  The amicus brief supported the appeal of Dr. Juan Hong, a full professor at the University of California-Irvine, in his suit against the university and its administrators.  Dr. Hong had, while participating in faculty governance, allegedly angered university administrators by opposing certain faculty hiring and promotion decisions and by his opposition to the university’s use of lecturers in place of professors.  After Dr. Hong was denied a merit salary increase, he filed suit against the university for violating his First Amendment right to free speech.

The U.S. District Court for the Central District of California rejected Dr. Hong’s claim, finding in favor of the university.  The judge reviewed the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) (see discussion above) and concluded that because Dr. Hong was purportedly acting “pursuant to his official duties,” which included participation in faculty governance, he could not avail himself of First Amendment protection if his employer retaliated against him based on his expression of opposition to the university’s policy.  According to the court, the University of California-Irvine “‘commissioned’ Mr. Hong’s involvement in the peer review process and his participation is therefore part of his official duties as a faculty member.  The University is free to regulate statement made in the course of that process without judicial interference.”  In so holding, the court failed to acknowledge the fact that courts treat the speech of professors in an academic context differently than the speech of employees of public agencies in other contexts, and that the Garcetti decision explicitly set aside the question of academic speech.

The amicus brief focuses on the unique status granted to academic speech, including involvement in shared governance. The brief notes that academic speech has been accorded special First Amendment protection by the Supreme Court, starting with Sweezy v. State of New Hampshire, 354 U.S. 234 (1957) (Frankfurter, J. concurring) through Keyishian v. Board of Regents, 385 U.S. 589 (1967) and Grutter v. Bollinger, 539 U.S. 306 (2003), and argues that such protection must include the right of faculty to participate in shared governance. The hallmark of such cases, the brief notes, is the recognition that academic freedom merits distinctive First Amendment protection against repressive action from within or outside the campus community.  The brief also notes that the district court mistakenly characterized Dr. Hong’s participation in faculty governance as an “official duty.”  Instead of a “duty”, the brief argues, participation in faculty governance is part and parcel of professors’ First Amendment-protected right of academic freedom to speak without fear of retaliation.

Update: On November 12, 2010, the Ninth Circuit issued an unpublished decision (.pdf).  The court first ruled that the UC-Irvine officials who allegedly retaliated against Professor Hong were immune from suit.  The court based its decision on two grounds: first, that the public university was immune from suit under the Eleventh Amendment to the U.S. Constitution, which provides that individuals cannot sue states (unless the states have consented to be sued), and second, that Professor Hong’s First Amendment rights were not “clearly established” at the time of the allegedly retaliatory incidents.

Because it ruled that the defendants were immune from suit, the court did not take up the merits of Professor Hong’s First Amendment claims.  Instead, the court decided to “leave the question of whether faculty speech such as Hong’s is protected under the First Amendment for consideration in another case.”  Thus, the appeals court did not adopt the reasoning of the district court, and left for another time the resolution of the contours of First Amendment protection for faculty speech.