Executive Summary Protecting an Independent Faculty Voice: Academic Freedom after Garcetti V. Caballos
Most faculty may be unaware that a recent Supreme Court decision, Garcetti v. Ceballos (2006), and several subsequent lower-court rulings applying that decision to higher education pose a serious threat to academic freedom and the ability of faculty in public institutions to participate freely in academic governance. The seriousness of this threat led the AAUP's Committee A on Academic Freedom and Tenure to form a subcommittee to examine the potential impact of the Garcetti decision and to suggest actions to be taken in both public and private colleges and universities to preserve academic freedom even in the face of judicial hostility or indifference. Because of the length and detailed legal analysis of its report, the subcommittee has also prepared this 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 begins with an overview of the historical development of the principle of academic freedom in the United States. It then provides a substantial analysis of the legal precedents concerning both academic freedom, in particular, and the more general limits on the free speech rights of public employees, the issue addressed in the Garcetti case, before concluding with a series of recommended steps that faculty and administrators should take to safeguard academic freedom.
In Garcetti v. Ceballos, 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." Although the majority expressly left open whether its ruling should apply to "speech related to scholarship and teaching" in public colleges and universities, subsequent decisions in the lower federal courts concerning faculty speech have disregarded this reservation and now threaten to diminish severely the constitutional protection of the academic freedom of professors whose engagement in governance, as well as their teaching and research, is considered part of their "official duties."
The drafters of the AAUP's 1915 Declaration of Principles on Academic Freedom and Academic Tenure, 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 "[university 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 Association of American Colleges and Universities). …