The AAUP in the Courts

The AAUP’s role in shaping the law of higher education.
By Robert M. O'Neil

Marking the seventy-fifth anniversary of the American Association of University Professors, an Academe article on “The Association and the Courts” recounted a significant change in the AAUP’s advocacy strategy in the late 1950s. During the first half century or so, the organization relied almost entirely on developing and issuing clear statements of policy and pursuing systematic investigations of apparent violations of academic freedom. Such inquiries often resulted in the imposition of formal censure on errant administrations as well as in media attention. Litigation was, however, not yet included among the potentially available modes of intervention.

In 1956, then-general secretary Ralph Fuchs, a senior law professor at Indiana University and a widely recognized champion of academic freedom, initiated discussion about the possibility of the AAUP’s submitting legal briefs as a “friend of the court.” As the seventy-fifth-anniversary article explained, “in carefully selected cases the Association could urge the court to apply its recommended policies.” Such a novel approach would soon prove “a fruitful one [since] the United States Supreme Court and other federal and state courts have expressly referenced AAUP policies in various decisions.” Two years later the first such brief was filed in the nation’s highest court on behalf of Lloyd Barenblatt, a University of Michigan teaching fellow who had refused to answer questions posed to him by the House Un-American Activities Committee (HUAC). Thus emerged a major new strategy in the protection of academic freedom and free expression. (In 1960, and continuing to the present, legal activities were incorporated into one or more full-time staff positions.)

New Ways to Protect Academic Freedom

Although relatively rare at that time, the filing of amicus curiae briefs had been occasionally raised as a possible strategy by other advocates. Technically, a friend-of-the-court brief is submitted to the court by someone other than either of the parties to the case and is intended to guide or advise the judges on important issues. In practice, complete neutrality hardly ever exists. Instead, the typical format identifies the filing as representing or supporting one of the parties to the case, and in that sense the brief reflects or conveys the views of a partisan advocate. Thus, in the Barenblatt case, such a submission enabled the AAUP to convey to the justices its constitutional claim that HUAC’s action threatened or invaded Barenblatt’s academic freedom. Opposing briefs were of course filed by the US Justice Department.

One might well ask why it took the AAUP a half century to embrace the filing of amicus briefs. Several explanations offer at least partial insight. For one, there were at that time strikingly few comparable advocacy groups. The American Civil Liberties Union, for example, which was founded in 1920, focused for a long time on a far narrower range of legal and constitutional issues than would later comprise its rich and aggressive agenda. People for the American Way and Americans United for Separation of Church and State—major players today—entered the fray much later, not to mention a host of relatively late arrivals like the Electronic Frontier Foundation and others that arrived only in the past decade or so.

The timing of Ralph Fuchs’s suggestion was optimal in other respects. The AAUP was simultaneously reaching out to faculties and institutions in other ways. An already well-established Committee A on Academic Freedom and Tenure was ready to launch major inquiries and, if appropriate, to impose censure on administrations found to have violated Association-supported principles and procedural standards. Reflecting a heightened emphasis on the financial status and needs of the professoriate, for example, the Committee on the Economic Status of the Profession in 1948 launched its initial survey of faculty salaries and benefits, which continues to offer a unique serviceto the academic community. Also that year a newly reactivated and renamed Committee T on Faculty-Administration Relationships (now the Committee on College and University Governance) began to focus more sharply on extending the scope of faculty involvement in institutional decision-making processes as a preview of what would eventually become the 1966 Statement on Government of Colleges and Universities (developed jointly with the American Council on Education and the Association of Governing Boards of Universities and Colleges).

Against these positive elements, however, the postwar climate presented a darker side. The McCarthy era and its excesses inflicted incredible damage on many promising academic careers. For academics whose livelihoods were in peril, the will and the courage to speak or write publicly on controversial matters seemed too much to ask. To be sure, the Supreme Court had invalidated several especially intrusive loyalty-oath requirements, albeit relying on limited rationales such as the clear absence of due process and unbridled vagueness. Only Justices William Douglas and Hugo Black indicated a potential concern about academic freedom, though Justice William Brennan joined them in the mid-1950s.

Finally, one must recall that this was a time of deep distrust and hostility, most especially for scholars and researchers, despite the formal protection of tenure for senior faculty. Not surprisingly, the AAUP remained exceedingly cautious; between 1949 and 1956, as critics like professor Walter Metzger have observed in later years, the AAUP “had failed to publish a single report of an alleged violation of academic freedom and tenure, although these cherished principles of the academic profession had never stood in greater need of its practiced case-by-case defense.” Submitting an amicus brief on behalf of an imperiled teaching colleague would have seemed at that time more than simply courageous; it would have struck most professors as foolhardy.

It was in this still unsettled—indeed ominous—climate that general secretary Fuchs urged the AAUP to engage in litigation to support beleaguered colleagues. Although the Barenblatt case afforded the earliest occasion for the Association’s intervention in the courts, a vital antecedent had just set the stage. Paul Sweezy, who had lectured at Harvard and elsewhere in the mid-1950s, had been subpoenaed and compelled under oath to reveal his political views to the New Hampshire attorney general. Especially suspect was the content of a lecture he had delivered on Marxism at the University of New Hampshire. When his most recent political activities were revealed, opponents demanded that he disclose the names of others with whom he was engaged. These pressures reflected the aggressive and intrusive agenda of Senator Joseph McCarthy and other anticommunist crusaders. Sweezy’s adamant refusal to accede to these demands—he cited his First Amendment right of freedom of expression—bespoke a deep personal conviction extending far beyond the immediate inquiries that he had rebuffed, and it inevitably placed him in serious legal jeopardy. He was charged with contempt of court and briefly imprisoned.

After the state courts affirmed Sweezy’s conviction, Sweezy v. New Hampshire reached the US Supreme Court in 1956 and was argued in spring 1957. Although the AAUP’s involvement could have been anticipated even at this time, a most congenial colleague entered the field on Sweezy’s behalf in the person of Yale Law School professor Thomas I. Emerson, who argued and briefed the case. Emerson’s eloquent advocacy soon altered the legal landscape. While the Warren Court still lacked a working majority, the four liberal justices were now ready to declare that “there unquestionably was an invasion of [Sweezy’s] liberties in the areas of academic freedom and political expression—areas in which government should be extremely reticent to tread.” Crucial intervention came from an unexpected, if welcome, ally: Justice Felix Frankfurter, who brought to the court a deep commitment to academic values as a longtime Harvard professor and scholar, added a concurring opinion (which Justice John Marshall Harlan joined).

The path to that concurrence proved surprisingly tortuous. Frankfurter noted initially that, because of the curious posture of the New Hampshire attorney general’s intrusive demands, his opinion would first have to address the reach of fundamental state authority under the First Amendment. Yet as Frankfurter arrayed the options, there seemed to him no defensible basis for ruling that Sweezy’s responses constituted a genuinely subversive threat. On balance, “when weighed against the grave harm resulting from governmental intrusion into the intellectual life of a university, such justification for compelling a witness to discuss the contents of his lecture appears grossly inadequate.”

Justice Frankfurter specifically invoked as the key to his concurrence the recent and “poignant plea” of South African scholars who identified “four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” This brief but eloquent passage set the stage for the modern constitutional doctrine of academic freedom. From that moment to the present, the courts have never disavowed or even significantly qualified those enduring precepts cited by Frankfurter.

Early Friends of the Court

It was, however, Barenblatt v. United States that would inaugurate the AAUP’s engagement in the litigation of academic freedom claims. Following Ralph Fuchs’s inspired suggestion to file amicus curiae briefs in “carefully selected cases,” the AAUP’s national leadership was ready to authorize the preparation and submission to the Supreme Court of a brief supporting Barenblatt’s cause, though prospects for success were  at best uncertain despite Sweezy (which the Barenblatt decision would distinguish). Yet the crucial precedent for intervention had now been firmly established.

The AAUP’s brief on Barenblatt’s behalf built on Frankfurter’s concurrence in Sweezy, enhancing the case for academic freedom also to reflect a strongly cautionary premise. The brief stressed the need for a “balance . . . between the legislature’s demands and interests needing protection.” It continued with a caveat: “Nor does the Association’s position depend on the individual rights to the First Amendment freedoms which teachers possess in common with other people. Rather, it emphasizes the immunity from unwarranted coercion which adheres to a member of the academic community as a representative of that community. That immunity protects the workable autonomy that academic institutions require in order to carry out their educational and research responsibilities.” Given the temper of the times—and the still quite uncertain outcome of the case—this did not seem the occasion for bold rhetoric in support of academic freedom and free expression. That would come later. A divided Supreme Court ruled simply that Barenblatt’s conviction for contempt of Congress did not violate his constitutional rights, since HUAC was empowered to compel a college professor to respond to questions regarding his Communist Party membership.

By the mid-1960s, as the AAUP marked its first half century, a splendid occasion for intervention arrived. Five faculty members at the State University of New York at Buffalo agreed to join together in a suit against the board of trustees. They alleged that the state’s compelled loyalty-disclaimer oath abridged their free speech and academic freedom. Each of the plaintiffs was promptly notified that his refusal to certify (as New York state law demanded) that he was not a Communist placed him at legal risk and would soon result in the termination of his salary and academic position. Initially a federal appeals court in Manhattan ruled that a special district panel of three judges must be convened because the suit challenged a state statute on constitutional grounds. That first-level tribunal soon ruled that the statutory oath requirement was constitutionally valid.

The US Supreme Court agreed to hear the appeal, and the opportunity for the AAUP to submit a quite different sort of amicus brief now presented itself. The constitutional context for the adjudication of the Keyishian case, as it came to be called, was dramatically different from what it had been at the time of Barenblatt. Justice Frankfurter had now retired and Justice Arthur Goldberg had not only succeeded him but also had become a durable First Amendment ally of Justice Brennan. A more speech-sensitive tribunal now seemed eager to endorse a more protective concept of academic freedom.

The legal posture of Keyishian (involving a facial rather than an applied challenge to the New York loyalty law) now enhanced the opportunity to develop in the AAUP’s amicus brief the full constitutional case for protection of academic freedom in a way that no prior court had managed to do. The national AAUP’s submission turned out to play a dominant role and undoubtedly inspired Brennan’s majority opinion striking down the oath requirement on both due-process and free-speech grounds. In stark contrast to the tentative approach of the Barenblatt brief, the Keyishian argument fully (and boldly) embraced basic AAUP policies and principles. Building on Frankfurter’s Sweezy concurrence, this brief promised a forceful emphasis on substantive precepts that had been nurtured throughout the AAUP’s first half century. It might be noted, moreover, that while Sweezy is commonly regarded as protecting the freedom of the university against external forces, Keyishian is seen primarily as protecting the freedom of the university’s teachers and scholars against the university as well as against outside forces and threats. Those compelling interests of the academic profession now seemed ready for Justice Brennan’s imprimatur. The hope was that a clear majority would follow Brennan in crafting a far broader protection for free speech and academic freedom than even Sweezy provided.

To that task Brennan was more than equal—though along the way, as a staunch defender of “stare decisis” (or legal precedent), he needed to distinguish a couple of uncongenial rulings that he then proceeded in effect to overrule in substance. In the course of his opinion he developed fully for the first time clear recognition of academic freedom in several places. Specifically, Brennan warned that “the danger of [a] chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed.” Later, and even more forcefully, Brennan declared in his majority ruling that “our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . . The classroom is particularly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues rather than through any kind of authoritative selection.” While scholars today may differ on which of Justice Brennan’s rulings is entitled to the highest esteem, Keyishian is a strong candidate—especially within the AAUP, where its recurrent citation attests to its durability.

Within months of the Keyishian ruling, the Supreme Court had allayed any doubts about the scope of the newly declared constitutional protection for academic freedom. The ensuing case, Whitehill v. Elkins, involved Maryland’s Ober Law and the loyalty oath which that statute imposed on state employees. On the merits, this case should have been unambiguous, since the justices had only recently invalidated nearly identical laws from the states of Florida and Washington, noting the imprecision of both mandates.

The actual challenge, however, proved elusive, since Maryland authorities had managed to moot such cases by ensuring the timely deposit of the paycheck of any potential nonsigners, such as professor Howard Whitehill. Yet in this one instance, officials in Annapolis somehow overlooked Whitehill. When he brought suit in federal court, with active AAUP support, the Ober Law was finally ripe for constitutional challenge. Not surprisingly, this first post-Keyishian decision quickly reinforced Justice Brennan’s ruling. The AAUP brief reinforced the academic freedom precepts that the high court had just announced.

While the focus of academic freedom litigation shifted somewhat during the end of the decade, one case of special note arose during the height of the Vietnam War. In 1970 a group of mid-Atlantic colleges and universities challenged the constitutionality of a regulation of the Pennsylvania Higher Education Assistance Agency (PHEAA) that compelled academic institutions to report to authorities in Harrisburg any campus incident involving an “offense committed in the course of disturbing, interfering [with,] or preventing” the orderly pursuit of academic activities on the campus. The sanction for such an infraction was immediate loss of student financial aid, without recourse to a hearing or other form of review. Clearly the agency’s target was student protest, as broadly encompassed by the regulatory language. A group of students and colleges filed suit in federal court in Philadelphia and, because of the constitutional challenge, a three-judge court was convened in accordance with later-abandoned judicial practice. In Corporation of Haverford College v. Reeher, the court ruled solidly against the PHEAA regulation on multiple grounds that amply reflected its unbridled vagueness and lack of procedural safeguards. The agency’s challenged rule soon thereafter received a decent judicial burial with no further legal proceedings even contemplated. The Pennsylvania experience appears to have been unique in terms of active AAUP engagement in the litigation, and eventual vindication, of academic freedom claims, given the extreme overreach of the statute in restricting the free expression of state-assisted Pennsylvania students.

Judicial Recognition of AAUP Statements

A wholly different dimension of “AAUP in the Courts” emerges from myriad federal and state court opinions that have recognized and embraced Association policies and declarations on academic freedom. While many such cases merely refer to or cite such documents in passing, a few have clearly relied on the substance of these declarations. What is striking during this past half century is the consistency of positive recognition and even endorsement of such policies. A few pertinent examples may suffice.

The US Supreme Court has on several occasions conveyed its approval of the 1940 Statement of Principles on Academic Freedom and Tenure. In Tilton v. Richardson (1971), for example, in the course of recognizing the special status of religiously affiliated institutions, the justices noted officially that the colleges and universities in question “were characterized by an atmosphere of academic freedom rather than religious indoctrination.” More precisely, as the court later noted in Roemer v. Board of Public Works of Maryland (1976), the salient fact that “each college subscribes to, and abides by, the 1940 Statement” indicates that the Catholic colleges receiving an annual state subsidy were not pervasively sectarian.

Numerous other examples of such citations recur in the lower courts, both state and, especially, federal. For example, the federal appeals court for the Fourth Circuit noted in Krotkoff v. Goucher College (1978) that, “probably because it was formulated by both administrators and professors, all of the secondary authorities seem to agree it [the 1940 statement] is the ‘most widely accepted academic definition of tenure.’”

The federal appeals court for the Third Circuit has periodically noted with approval relevant AAUP policies and statements, notably in Kunda v. Muhlenberg College (1980), where both the 1940 statement and the derivative Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments were invoked consistently and favorably throughout the opinion. Within the same circuit court, one judge noted the following in Skehan v. Board of Trustees of Bloomsburg State College (1982):

I agree . . . with the American Association of University Professors (AAUP) which filed an amicus brief, that it is unnecessary for this Court to reach the question whether certain AAUP policy statements should be read into [the institution’s manual]. . . . When a college has chosen to adopt the policy statements of the AAUP, such statements can serve a valuable function in encouraging the internal resolution of faculty disputes, without the necessity of judicial interference. . . . [In the present case] I would be reluctant to read the opinion as foreclosing future use of AAUP statements in interpreting ambiguous college teaching contracts.

Another federal circuit court has added significantly to such encomia. The District of Columbia Circuit (often called the most influential of the lower federal tribunals) has on several occasions conveyed its approval of AAUP policy. One finds such supportive language, for example, in McConnell v. Howard University (1987): “Scholars and administrators, alike, have long recognized that tenure is important to the success of our system of higher education. . . .Thus, tenure normally carries with it an expectation that, absent demonstrable cause to terminate a faculty member’s appointment, a tenured professor will enjoy the freedom to carry out his or her duties free from the fear of dismissal.”

Finally, state supreme courts have also embraced these precepts in published opinions. The Washington Supreme Court, for example, observed, in Barnes v. Washington State Community College Dist. No. 22 (1975), that “the most authoritative source regarding the meaning and purpose of tenure is the American Association of University Professors.”

Further citation of such references might seem redundant. It should be clear that, in contrast to the absence of comparably protective declarations from other national higher education organizations, the AAUP for at least a quarter of a century has been judicially recognized as a uniquely valued and respected source of such guidance and counsel. And increasingly, the specialized academic media, such as the Chronicle of Higher Education and Inside Higher Ed, have featured coverage of such emerging legal developments in print and on their websites and blogs. In that sense, the AAUP has indisputably earned centennial recognition.

Academic Speech within “Official Duties”

Let us bring our analysis of the AAUP and the courts full circle in a context that is still unfolding. We should begin by recognizing how strikingly recent is the Supreme Court’s recognition of constitutional protection for public-employee speech. Until the Pickering v. Board of Education decision in 1968, few government workers could insist on greater protection than their counterparts in the private sector. As remains true today, expression by government employees incurred important limits—when it disrupted the efficiency of the workplace, endangered or impaired morale, unduly preempted assigned duties, undermined client confidence, or simply demonstrated an employee’s incompetence. After Pickering, government workers enjoyed substantial protection unless they spoke with “reckless disregard” of the truth or engaged in deliberate falsification—qualifications the Court had earlier imposed in granting First Amendment protection to those who spoke or wrote on matters of “public concern.”

At least one dimension, however, has remained curiously ambiguous. When a public employee speaks or writes “pursuant to official duties,” some critics have argued, First Amendment protection should be denied. Until the Supreme Court’s 2006 decision in Garcetti v. Ceballos, however, every federal circuit that had previously ruled on that issue had refused to treat such expression as unprotected despite the nexus between the speaker and his or her “official duties.” Such consistency in protecting “official” speech persisted until a dissenting judge in the Ninth Circuit ventured a dissonant view. Close observers now feared the worst, despite the unanimity of protective views on the “official-duties” issue. So when the Supreme Court agreed to hear the case of Richard Ceballos, a deputy district attorney in California dismissed and transferred after publicly criticizing the policies of his agency and the actions of his superiors, notably District Attorney Gil Garcetti, change seemed to be in store.

A majority of Supreme Court justices now seemed ready to rule that when government workers made statements pursuant to their official duties, their speech no longer warranted First Amendment protection. For the general run of public employees like Ceballos, such a curtailment of constitutional protection for their freedom to speak was clearly worrisome. But when the speaker was a public college or university professor, this revision posed a far greater threat. Fearing the worst, the AAUP and the Thomas Jefferson Center for the Protection of Free Expression (TJC) jointly filed an amicus brief to warn the court of potential risks to academic expression. “A blanket rule,” their brief argued, “that no job-related speech by public employees is constitutionally protected could undermine the First Amendment protections traditionally afforded faculty speech and ignore the special sensitivity this Court has paid in applying the First Amendment to colleges and universities.”

Despite the emerging division within the Supreme Court, five of its members seemed to heed the cautions in this (and other) amicus briefs. The four liberal justices would have followed the guidance of the lower federal circuits—including a commitment to continue protection to outspoken government workers like Ceballos, whether or not pursuant to “official duties. The four conservative justices insisted that “official duties” created an exception for all public employees. Justice Anthony Kennedy, however, recognized the need for qualification in his prevailing opinion. He noted cautiously, “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.” Justice David Souter was even clearer in expressing his concern about the apparent import of the majority’s rationale. Writing for himself and three colleagues in dissent, Souter worried that the majority’s sharp reversal on the “official-duties” issue could “imperil First Amendment protection of academic freedom in public colleges and universities.” The significance of Garcetti for professors at public institutions thus remained puzzlingly uncertain; four justices fully accepted Garcetti, while four others rejected it, leaving Justice Kennedy (as has often been the case) as the intermediary. Although Garcetti limited First Amendment protection for much public-employee speech, it specifically reserved for later resolution the question of protection of academic speech.

A bit more should be said about the perverse nature of the Garcetti doctrine and its special import for public college and university professors. As the dissenters and Justice Kennedy noted, there is an ironic reverse correlation between a professor’s assigned subject and the proximity of a contentious statement. Thus a professor who talks about issues remote from his or her discipline or offers essentially a layperson’s perspective seems to be fully protected, while the genuine expert seems at correspondingly greater risk. There is a second and quite different concern. The line between speech within one’s “official duties” and “speech as a citizen”—imprecise even for a factory worker or a custodian—seemed hopelessly vague when it came to an academic expert. Hence the special irony of this correlation. The scope of First Amendment protection for professorial speech—which should have been far more extensive than comparable coverage for a custodian or even a research assistant—turned out in the majority’s view to be just the opposite. Justice Souter clearly recognized this perverse correlation, and Justice Kennedy knew that something was amiss.

In this troubling context the AAUP’s Committee A released in 2009 a special subcommittee report, “Protecting an Independent Faculty Voice: Academic Freedom after Garcetti v. Ceballos,” addressing the issues in Garcetti and recommending possible ameliorative and protective language that governing boards might wish to adopt (as several universities later did). The quest for clarity and precision in the courts, however, started out badly, less because of failed intervention than because of accidents of litigation. Indeed, the first three cases that precisely implicated the Garcetti issue in the academic setting failed to attract even collegial interest simply because of lack of publicity. One such case actually reached the federal court of appeals for the Seventh Circuit, curiously overlooked by normally vigilant guardians of academic freedom. A second such case—in which the AAUP and the Thomas Jefferson Center eventually did file an amicus brief—completely avoided any constitutional issue.

In the third such curiously slighted case, Gorum v. Sessoms, however, a more sensitive federal judge at least recognized Justice Kennedy’s crucial “reservation,” even though this judge ruled for the institution rather than the aggrieved professor. Then, at long last, the AAUP and the TJC crafted and submitted extensive amicus briefs in each of the then-pending federal court of appeals cases. A gathering of faculty representatives of the principal Big Ten campuses took on the task of building on the AAUP’s 2009 report in order to promote revisions of their official policies that would include protective language designed to implement Justice Souter’s favored approach to the Garcetti academic speech issue.

The two most recent joint amicus briefs of the AAUP and the TJC seem to have measurably enhanced the climate for academic freedom—though, of course, such a correlation remains highly inferential. The landscape changed dramatically in April 2011, when the Fourth Circuit handed down its ruling in Adams v. Trustees of the University of North Carolina–Wilmington, finding in favor of University of North Carolina–Wilmington professor Michael Adams, a self-described conservative Christian who had been denied promotion to full professor after having criticized the university as religiously intolerant and having engaged in other controversial political speech. Adams claimed that the negative promotion decision was in retaliation for his political speech and his outspoken criticism of UNCW. The joint brief had called on the Fourth Circuit to take into account Garcetti’s academic freedom reservation, and it urged the court to recognize an exception to Garcetti’s analysis for faculty speech. The appeals court declared unequivocally that “Garcetti would not apply in the academic context of a public university as represented by the facts of this case. Our conclusion is based on the clear reservation of the issue in Garcetti, Fourth Circuit precedent, and the aspect of scholarship and teaching reflected by Adams’ speech.” The court reasoned that “applying 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 court also concluded that “Adams’ speech was clearly that of a citizen speaking on a matter of public concern” and thus was explicitly protected by the First Amendment. Although Adams displayed an unmistakably conservative view in his publications (and thus distanced himself from many colleagues), the court’s broader scope of protection for academic speech transcended politics and ideology.

Most recently, in early 2014, the Ninth Circuit (where Garcetti began) vindicated an outspoken journalism professor at Washington State University. David Demers, a tenured associate professor in the Murrow School of Communication, was a vigorous and consistent critic of the operations of the school and an advocate for its reorganization or realignment, incurring the administration’s displeasure in the process. He filed suit in federal district court, alleging that four university administrators retaliated against him for speaking out by giving him negative annual performance evaluations and subjecting him to an unwarranted internal audit, thereby violating his rights under the First Amendment. After the court dismissed his suit, he appealed to the Ninth Circuit, at which point the AAUP joined with the TJC to file an amicus brief in support of Demers. Citing the “academic freedom exception” enunciated in Garcetti, the brief argued that “Demers’s speech was related to academic concerns and scholarship; therefore, Garcetti may not be applied without further inquiry into the interests at stake.” The brief urged the court to recognize that Demers’s speech, both oral and written, addressed matters of “considerable public concern: the education of future journalists,” and was therefore “entitled to constitutional protection.” On January 29, 2014, a three-judge panel, adopting an approach advanced in the AAUP-TJC brief, unanimously ruled in favor of Demers, vigorously affirming that the First Amendment protects the academic speech of faculty members. The panel found (a) that Demers’s expression reflected his views on matters of public concern, and (b) that his First Amendment protection was not diluted by a claimed nexus between his statements and his “official duties.” Recognizing the less-than-fully settled state of the Garcetti reservation, this panel left no doubt about the need for continued protection of academic expression. Indeed, had it been possible simply to overrule that part of Garcetti altogether, there seems little doubt that these three sensitive judges would have done so—and in fact in their ruling they came about as close as could be imagined. While noting that “there may be some instances in which speech about academic organization and governance does not address matters of public concern,” this was not remotely such a case. Leaving no doubt in conclusion, “we hold that there is an exception to Garcetti for teaching and academic writing.” The decision affirmed that “Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.”

On the last day of October, 2014, the federal appeals court for the Seventh Circuit (based in Chicago) dramatically expanded the scope of academic freedom and expression for adjuncts and part-time faculty as well as full-time senior professors. This quite unexpected (and unanimous) ruling greatly enhanced recently established constitutional protection for outspoken critics of public college and university administrators. It reinforced and enhanced recent and congenial decisions in two other federal circuits in cases from Washington (Demers) and North Carolina (Adams). The court specifically relied on a sympathetic view of the Supreme Court’s judgment in the Garcetti case, expressly invoking the justices’ “reservation” of free speech and press protections for academic speakers and writers. The three-judge panel unanimously declared that an Illinois community college could not summarily dismiss an adjunct teacher for criticizing the administration, at least as long as the issues she had raised publicly and visibly constituted “matters of public concern.”

The federal appeals court also noted that even a contingent or part-time teacher had a reasonable expectation of continuing employment at the institution. The appellate court for the Seventh Circuit ruled in a sympathetic opinion that Robin Meade, the outspoken critic and active union officer, was “not alone in expressing concern about the treatment of adjuncts.” The panel added that “colleges and universities across the country are targets of increasing coverage and criticism regarding their use of adjunct faculty.” In this regard, the court broke important new ground not only with regard to academic freedom and professorial free expression, but even more strikingly in its novel embrace of the needs and interests of adjuncts and part-timers. Given the consistency of the recent views of other federal appellate courts, Supreme Court intervention seems most unlikely.

The Ninth Circuit panel reached far back to Keyishian and other enduring academic freedom precedents—as one would have expected of these two widely admired judges, William Fletcher and Raymond Fisher, who had been two of Justice William Brennan’s favorite protégés. Thus did the Garcetti saga come full circle in early 2014. No finer example of the AAUP’s intervention in the courts could be cited than the Association’s joint amicus brief with the Thomas Jefferson Center.

Conclusion

For a small organization with a limited budget, the AAUP has managed—with the indispensable assistance of other like-minded organizations, distinguished legal scholars, and pro-bono law firms—to play a major role in shaping the law of higher education over the past sixty years. During that time, in addition to the amicus briefs it has filed in defense of academic freedom and the unfettered exchanges of ideas that have been the principal focus of this article, the Association has filed briefs in cases involving such key issues as tenure, discrimination, affirmative action, sexual harassment, faculty and graduate student collective bargaining, court-ordered access to public records and governmental proceedings, intellectual property, and expanded scholarly access to inventions and research materials, among others.

While the courts have not always been receptive to the AAUP’s position on these issues, the Association has nonetheless had an impact on the law in these areas out of all proportion to its size and resources. The frequent success of the organization’s program of legal advocacy, and specifically its use of amicus briefs to shape the law, has demonstrated the brilliant prescience of Ralph Fuchs’s proposal in 1956, and the important achievements in this area are a great source of pride as the Association commemorates its centennial.

Robert M. O’Neil is president emeritus of the University of Virginia and founding director of the Thomas Jefferson Center for the Protection of Free Expression. He was also president of the University of Wisconsin system and is a senior fellow at the Association of Governing Boards of Universities and Colleges. He has served the AAUP three times as general counsel, for nine years as Committee A chair, and in numerous other capacities.

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