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Academic Freedom Dodges a Bullet

The Supreme Court has issued a disturbing new decision that eviscerates the free speech rights of public employees, including college faculty. The High Court held last May that when a public employee is speaking as a part of his “official duties,” his speech is entitled to no First Amendment protection.

But there is some good news. In the same opinion, the Court recognized the importance of “academic freedom” and hinted that college professors, when they are teaching or writing, still may be protected by the First Amendment.

The plaintiff in the case, Richard Ceballos, is a Los Angeles assistant district attorney who claimed he was demoted in retaliation for reporting to his supervisor that a deputy sheriff may have lied to get a search warrant. When the case reached the Supreme Court, both the Bush administration and the District Attorney’s office argued that Ceballos had no claim because the report was prepared as a part of his job.

By a 5 to 4 margin, the Supreme Court agreed. In an opinion written by Justice Anthony Kennedy, the Court held, “We reject the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.” The case is Garcetti v. Ceballos.

An Important Dissent
In a stinging dissent, Justice David Souter warned that the Court's ruling may “imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’” He’s right. If Garcetti applies to college faculties, then the right to academic freedom is dead. That’s because a professor’s classroom lectures and scholarly writings plainly constitute speech in the performance of one’s “professional duties.”

But all is not lost. Justice Kennedy responded to Justice Souter’s concerns by suggesting that the Court may yet carve out an exception for teachers’ in-class speech and scholarship. Writing for the majority, Justice Kennedy said:

Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. 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. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

Because the Garcetti case had the potential to gut academic freedom, NEA filed an amicus brief arguing that the First Amendment affords special protection for teachers. Good teachers, the brief urged, are not merely “script-readers for the government,” but must exercise their professional judgment in deciding “how particular controversial issues are to be addressed.” And the brief reminded the Court of its famous observation from a 1967 decision: “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.”

While there is no way of knowing for sure, NEA’s brief may have influenced the Court to include in its decision the favorable language about academic freedom. In any event, the Court said it would reserve for another day and another case the question whether the First Amendment affords special protection for teachers.

A String of Defeats
This promise is especially heartening in light of a string of federal appellate court decisions over the last eight years rejecting professors’ claims of academic freedom. The Sixth and Seventh Circuits have ruled, for example, that professors have no right under the First Amendment to determine what grades to assign to their own students; that right belongs exclusively to the university.

Just last year, the Tenth Circuit ruled that “an independent right to academic freedom does not arise under the First Amendment …” And the Fourth Circuit has held that the doctrine of “academic freedom” is a “right [that] inheres in the University, not in individual professors.”

Ominously, Judge (now Justice) Samuel Alito authored an opinion for the Third Circuit holding that a university—not a tenured professor—has the right to determine the class syllabus and to dictate which materials can be used in the classroom.

Hopefully, by its dicta in Garcetti, the Supreme Court is telling the lower federal courts they should revisit their earlier opinions questioning whether professors enjoy any right of academic freedom. While it’s too early to tell whether this optimistic view will ultimately prevail, this much is clear: we live to fight another day.

Michael D. Simpson
NEA Office of General Counsel