Protecting an Independent Faculty Voice: Academic Freedom after Garcetti V. Ceballos
O'Neil, Robert M., Areen, Judith C., Finkin, Matthew W., Gerber, Larry G., Van Alstyne, William W., Nelson, Cary, Academe
This subcommittee was formed by the AAUP's Committee A on Academic Freedom and Tenure in November 2008 for the purpose of surveying the landscape of legal and professional protections for academic freedom at public colleges and universities in the wake of the Supreme Court's 2006 decision in Garcetti v. Ceballos and to propose institutional policy language aimed at protecting academic freedom where courts cannot or should not be relied upon.1 In Garcetti, the Supreme Court majority 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," regardless of whether the speech implicates matters of public concern. Anticipating this outcome, the AAUP and the Thomas Jefferson Center for the Protection of Free Expression had submitted an amicus brief to the Court, urging not only that the speech of all public employees on matters of public concern must be protected under the First Amendment but also particularly that applying a job-related standard of protection to speech could threaten academic freedom, noting that "much potentially controversial expression by university professors relates to the subject matter of the speaker's academic expertise, and could thus be deemed unprotected under a diminished and distorted concept of 'public concern.'" Perhaps in response to that caution, the majority in Garcetti observed that "there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for" by its decision. The majority therefore reserved the question of speech in the academic context: "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 and teaching."
In subsequent cases touching on teaching or higher education, however, and then in several cases squarely addressing faculty speech, the lower federal courts have so far largely ignored the Garcetti majority's reservation, posing the danger that, as First Amendment rights for public employees are narrowed, so too may be the constitutional protection for academic freedom at public institutions, perhaps fatally. This report reaffirms the professional notion of academic freedom as existing apart from, and regardless of, any given mechanism for recognition of a legal right to academic freedom and situates a range of faculty speech firmly within the reservation articulated by the Garcetti majority.2
This report therefore begins with an exploration of academic freedom as articulated by the AAUP (and as put to the test by institutions of higher education), moves to an explanation of the judicial treatment of academic freedom prior to Garcetti, sets out the current postGarcetti landscape, and concludes by urging that national faculty organizations, local and regional faculty groups, and institutional administrators and governing boards take action to preserve all elements of academic freedom even in the face of judicial hostility or indifference.
I. What Is Academic Freedom?
Academic freedom in the United States took form in 1915 when the American Association of University Professors issued its Declaration of Principles on Academic Freedom and Academic Tenure. John Dewey, the first president of the Association, had appointed a committee of respected scholars to draft the Declaration. Chaired by Columbia University economist Edwin Seligman, the committee included Arthur Lovejoy of Johns Hopkins University and Roscoe Pound, then dean of the Harvard Law School.
When the Declaration was issued, faculty members in both private and public institutions were largely governed by the common law of master and servant, under which the administration supervised and was responsible for the actions of the faculty, with a few exceptions. …