Negotiating Academic Freedom: A Cautionary Tale

By Stephen Aby and Dave Witt

In recent years, there has been a growing concern among academics that traditional protections of academic freedom have been eroded by increasingly intrusive and somewhat ill-informed court decisions. The most recent and prime example of this is the Garcetti v. Ceballos decision by the US Supreme Court and, more alarmingly, its progeny in other courts. Those decisions, and their implications, are the subject of a recently released AAUP special report, Protecting an Independent Faculty Voice: Academic Freedom after Garcetti v. Ceballos. In brief, the Garcetti decision said that in the course of carrying out one’s public employment responsibilities, an employee did not have First Amendment protections of free speech outside the classroom. While the case revolved around the whistle-blowing and subsequent punishment of a Los Angeles assistant district attorney (Ceballos), the AAUP saw the potential peril of the case and filed an amicus brief. If faculty speech were similarly constrained, academic freedom and the faculty role in shared governance would be in tatters. Faculty could not safely exercise their critical role in shared governance, or explore controversial subjects within their fields, without the threat of retribution or restraint. The Supreme Court apparently took note of the AAUP’s brief, commenting that its decision in Garcetti did not necessarily speak to the issue of academic freedom in higher education classrooms, where other important considerations may beinvolved. Despite this caveat, as noted in the AAUP report, other courts have rendered decisions on this topic, often to ill effect. This article is not intended to review all of those cases; the AAUP report does it well, as does the AAUP’s “Legal Round-Up: What’s New and Noteworthy for Higher Education” (2010) and “Annual Legal Update.” The focus here, instead, is on the possible spread of an even broader range of arguably bad or restrictive court decisions into academic freedom contract language or faculty handbooks. This is a case study and a cautionary tale.

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