Academic Freedom at American Universities by Philip Lee

Author:Philip Lee
Language: eng
Format: epub
Tags: undefined
Publisher: Lexington Books
Published: 2012-03-15T00:00:00+00:00

Faculty Expression Not Related to Classroom Teaching

In the wake of Garcetti, lower courts have struggled to consistently apply what academic freedom means in situations where professor speech outside the context of classroom teaching and university interests are at odds—particularly in situations where professors have criticized their administrations.

Reflecting on Garcetti, Judith Areen argues that restricting university professors to only promoting government-approved messages would interfere with the traditional role of public higher education and would, thus, be an unconstitutional prohibition against free speech.[68] This approach has gained limited traction in the courts. A number of courts have simply ignored the Garcetti majority’s stated reservation and found that university professor speech criticizing university management was not protected by the First Amendment any more than other public employees’ speech. For example, in Renken v. Gregory,[69] a tenured engineering professor at the University of Wisconsin at Milwaukee had his pay reduced and his research funding terminated after he criticized the university’s use of grant funds. He brought a First Amendment challenge in court. The Seventh Circuit, relying on Garcetti, held that the professor was not protected by the First Amendment because he “was speaking as a faculty employee, and not as a private citizen, because administering the grant . . . fell within his teaching and service duties that he was employed to perform.”[70] Similarly, in Gorum v. Sessoms,[71] a tenured communications professor at Delaware State University was terminated for making critical comments against the administration, for advising a student-athlete who violated the university disciplinary code, and for rescinding an invitation to the university president to speak at a public event. The Third Circuit, also relying on Garcetti, held the professor was not protected by the First Amendment because he was acting in accordance with his official duties, and not as a private citizen.

In a recent case, the Fourth Circuit gave proponents of professorial academic freedom hope that some judges would be willing to recognize a constitutionally based protection for individual professors speaking outside the classroom. Adams v. Trustees of UNC-Wilmington[72] involved a state university professor’s challenge to his university’s refusal to promote him to full professor, which he alleged was based on his outspoken Christian and conservative beliefs. This professor publicized his beliefs in various forums outside the university including conservative Internet news sites and radio and television broadcasts. The university argued that Garcetti precluded the professor’s First Amendment claims because the professor’s speech was made in relation to his official duties as a state employee. The Fourth Circuit rejected this argument, noting:

Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment. In light of the above factors, we will not apply Garcetti to the circumstances of this case.

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