Protecting an Independent Faculty Voice: Academic Freedom after Garcetti v. Ceballos

The statement that follows is the executive summary of a longer report that was prepared by a subcommittee of the Association’s Committee A on Academic Freedom and Tenure and approved by Committee A in June 2009. The executive summary underwent substantial revision in 2023. Legal citations in the report were updated in 2014 and 2023.

Executive Summary

Following the Supreme Court’s ruling in Garcetti v. Ceballos (2006),¹ the AAUP’s Committee A on Academic Freedom and Tenure formed a subcommittee to examine the potential impact of the decision and to suggest actions to be taken in both public and private colleges and universities to preserve academic freedom. The subcommittee report emphasizes the need to reinforce academic freedom, not as a matter of law, but as a principle vital to the effective functioning of institutions of higher learning. The subcommittee also prepared an executive summary to make its general findings more readily accessible and to highlight its call for action outside the limited confines of the courts. The full report provides an overview of the historical development of the principle of academic freedom in the United States, provides analysis of the legal precedents concerning academic freedom and the free-speech rights of public employees, and concludes with a series of recommended steps that faculty and administrators should take to safeguard academic freedom. While supporting efforts to shape the law through amicus curiae briefs, the report focuses on how the academic community can best preserve and protect academic freedom in light of the threat posed by the post-Garcetti legal context.

As was the case when the report was first prepared in 2009, academic freedom of professors continues to face serious threats. In the immediate aftermath of Garcetti, the principal threat appeared to be judicial hostility or indifference to academic freedom, which seemed to lead some lower federal courts to adopt overly restrictive interpretations of faculty free speech rights that Garcetti did not compel. In recent years, a new threat has emerged in the form of legislative attacks on faculty rights at public institutions, including state laws that restrict the ability of faculty to engage in core classroom speech. While it is not yet clear how courts will assess these new laws, it is more critical than ever that faculty and administrators take steps to safeguard academic freedom.

The drafters of the AAUP’s 1915 Declaration of Principles on Academic Freedom and Academic Tenure,² which has provided a basis for the American understanding of academic freedom, did not rely upon the Constitution or statutes to make their case. At the time, faculty members at both private and public institutions were largely governed by the common law of master and servant—that is, the institution had authority and control over the faculty. Hence, most governing boards and presidents had the legal power to dismiss faculty members, who were at-will employees, for their economic, political, social, or religious views and for their criticisms of the institution. The authors of the Declaration argued that, for universities to advance knowledge and train students to think for themselves, faculty not only had to possess disciplinary expertise but also needed to be free from the control of their governing board and administration. The Declaration’s authors explained that “[u]niversity teachers should be understood to be, with respect to the conclusions reached and expressed by them, no more subject to the control of the trustees than are judges subject to the control of the president.” The assertion and exercise of these liberties confronted the master-servant model head on. As the 1915 Declaration put it, faculty members are “appointees” of the governing boards “but not in any proper sense the employees.”

By the late 1930s, the principles of academic freedom in teaching, research, and publication had become generally accepted in most of public and nondenominational private higher education, and they were codified in the 1940 Statement of Principles on Academic Freedom and Tenure, the joint formulation of the AAUP and the Association of American Colleges (now the American Association of Colleges and Universities). This development occurred outside the context of the law and the constitutional right to free speech.

One aspect of academic freedom asserted in the 1940 Statement is the role of the faculty member in institutional life as a citizen or an “officer” of the institution. The academic freedom of a faculty member pertains to both (1) speech or action taken as part of the institution’s governing and decision-making processes (for example, within a faculty committee or as part of a grievance filing) and (2) speech or action that is critical of institutional policies and of those in authority and takes place outside an institution’s formal governance mechanisms (such as email messages sent to other faculty members). In its 1994 statement On the Relationship of Faculty Governance to Academic Freedom, the AAUP affirmed the inextricable connection between academic freedom in teaching and research and the free and effective participation of faculty in institutional governance.³

Although the principle of academic freedom developed outside the law, beginning in the 1950s the Supreme Court began to interpret the First Amendment to include some protections for academic freedom for faculty at public institutions. In Keyishian v. Board of Regents (1967),⁴ a majority of the Court recognized academic freedom as a First Amendment interest. The subcommittee report emphasizes, however, that such protection did not extend to private institutions, since First Amendment protections apply only to restrictions on speech by arms of government. Moreover, the First Amendment protections provided to faculty at public institutions, while often quite helpful, never fully incorporated the AAUP’s understanding of the scope of academic freedom.

Soon after the Keyishian ruling, the Supreme Court began to hand down a series of decisions addressing public employee speech more broadly. In Pickering v. Board of Education (1968),⁵ the Court strengthened the free speech rights of public employees by qualifying the long-standing legal doctrine that the First Amendment did not restrain the government when it functioned as an employer. That doctrine had been encapsulated by Oliver Wendell Holmes in 1892 when he stated that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” In Pickering, a case decided in favor of a public employee’s free speech rights, the Supreme Court balanced the interests of a public employee “as a citizen, in commenting upon matters of public concern,” against “the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” In subsequent decisions regarding public employee speech prior, the Court began to limit employee speech protection to a more restricted definition of matters of “public concern."

In 2006, the Court ruled in Garcetti that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, the majority expressly left open the question of whether its ruling should apply to “speech related to scholarship and teaching” in public colleges and universities. Although the Supreme Court has not yet answered that question, those federal courts of appeals that have addressed the issue have uniformly held that Garcetti does not extend to academic speech in the university setting.⁶ But it is not yet clear whether or to what extent courts will ultimately conclude that constitutional protections for faculty speech are coextensive with AAUP standards of academic freedom.

The subcommittee report reiterates the need for academic freedom at both public and private institutions, not as a matter of law, but as a principle vital to the effective functioning of institutions of higher learning independent of constitutional protections. The report urges faculty groups to make administrators and governing boards aware of the risks to institutional health and to higher education generally if they curtail intramural faculty speech.

The subcommittee also calls upon AAUP chapters and faculty senates at both public and private colleges and universities to develop policy statements at the institutional level that will explicitly incorporate protections for faculty speech on institutional academic matters and governance, such as the amendments adopted by the Board of Regents of the University of Minnesota.⁷ At the moment, most institutions have policy statements that recognize academic freedom as it pertains to teaching, research, and publication, but typically such statements do not refer to speech relating to governance. The report concludes by providing the Minnesota language and two other draft policy statements as examples of language that might be incorporated into faculty handbooks or other institutional regulations to clarify that academic freedom protects faculty speech about institutional academic matters and governance as well as teaching, research, and extramural statements:

1. Academic Freedom and Academic Responsibility sections of the Academic Freedom and Responsibility policy of the University of Minnesota, as amended by the board of regents on June 12, 2009:

   Academic freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the University.

   Academic responsibility implies the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest, one is not speaking for the institution.

2.  Subcommittee proposal option 1:

   Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research and to publish the results of those investigations, and to address any matter of institutional policy or action whether or not as a member of an agency of institutional governance. Professors should also have the freedom to address the larger community with regard to any matter of social, political, economic, or other interest, without institutional discipline or restraint, save in response to fundamental violations of professional ethics or statements that suggest disciplinary incompetence.

3. Subcommittee proposal option 2:

   Academic freedom is the freedom to teach, both in and outside the classroom, to research and to publish the results of those investigations, and to address any matter of institutional policy or action whether or not as a member of an agency of institutional governance. Professors should also have the freedom to speak to any matter of social, political, economic, or other interest to the larger community, subject to the academic standard of conduct applicable to each.

Notes

1. 547 US 410 (2006). In Garcetti, the Supreme Court allowed a Los Angeles district attorney’s office to discipline a deputy district attorney for having criticized his supervisors’ actions; the Court ruled that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Back to text.

2. AAUP, Policy Documents and Reports, 11th ed. (Baltimore: Johns Hopkins University Press, 2015), 3–12. Back to text.

3. Ibid., 123–25. Back to text.

4. 385 US 589 (1967). Back to text.

5. 391 US 563 (1968). Back to text.

6.See Heim v. Daniel, 81 F.4th 212 (2d Cir. 2023); Meriwether v. Hartop, 992 F.3d 492, 506–07 (6th Cir. 2021); Demers v. Austin, 746 F.3d 402, 406, 412 (9th Cir. 2014), holding that “Garcetti does not apply to ‘speech related to scholarship or teaching’”; and Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 562 (4th Cir. 2011), which stated, “We are . . . persuaded that Garcetti would not apply in the academic context of a public university as represented by the facts of this case.” Back to text.

7.Regents of the University of Minnesota, Board of Regents Policy: Academic Freedom and Responsibility (last amended May 13, 2011), available at https://regents.umn.edu/sites/regents.umn.edu/files/2024-05/policy_acade.... Back to text.