academic freedom after garcetti v. ceballosimical to the employer’s economic interests—speech...

WWW.AAUP.ORG NOVEMBER–DECEMBER 2009

This subcommittee was formed by the AAUP’s CommitteeA on Academic Freedom and Tenure in November 2008for the purpose of surveying the landscape of legal andprofessional protections for academic freedom at publiccolleges and universities in the wake of the SupremeCourt’s 2006 decision in Garcetti v. Ceballos and to pro-pose institutional policy language aimed at protectingacademic freedom where courts cannot or should not berelied upon.1 In Garcetti, the Supreme Court majorityruled that when public employees speak “pursuant totheir official duties, the employees are not speaking ascitizens for First Amendment purposes, and theConstitution does not insulate their communicationsfrom employer discipline,” regardless of whether thespeech implicates matters of public concern. Anticipatingthis outcome, the AAUP and the Thomas Jefferson Centerfor the Protection of Free Expression had submitted anamicus brief to the Court, urging not only that thespeech of all public employees on matters of public con-cern must be protected under the First Amendment butalso particularly that applying a job-related standard ofprotection to speech could threaten academic freedom,noting that “much potentially controversial expressionby university professors relates to the subject matter ofthe speaker’s academic expertise, and could thus bedeemed unprotected under a diminished and distortedconcept of ‘public concern.’” Perhaps in response to thatcaution, the majority in Garcetti observed that “there issome argument that expression related to academicscholarship or classroom instruction implicates additionalconstitutional interests that are not fully accounted for”by its decision. The majority therefore reserved the ques-tion of speech in the academic context: “We need not, andfor that reason do not, decide whether the analysis weconduct today would apply in the same manner to a caseinvolving speech related to scholarship and teaching.”

In subsequent cases touching on teaching or highereducation, however, and then in several cases squarelyaddressing faculty speech, the lower federal courts have

so far largely ignored the Garcetti majority’s reserva-tion, posing the danger that, as First Amendment rightsfor public employees are narrowed, so too may be theconstitutional protection for academic freedom at pub-lic institutions, perhaps fatally. This report reaffirms theprofessional notion of academic freedom as existingapart from, and regardless of, any given mechanism forrecognition of a legal right to academic freedom andsituates a range of faculty speech firmly within thereservation articulated by the Garcetti majority.2

This report therefore begins with an exploration ofacademic freedom as articulated by the AAUP (and as putto the test by institutions of higher education), moves toan explanation of the judicial treatment of academicfreedom prior to Garcetti, sets out the current post-Garcetti landscape, and concludes by urging that nation-al faculty organizations, local and regional faculty groups,and institutional administrators and governing boardstake action to preserve all elements of academic free-dom even in the face of judicial hostility or indifference.

I. What Is Academic Freedom?Academic freedom in the United States took form in 1915when the American Association of University Professorsissued its Declaration of Principles on AcademicFreedom and Academic Tenure. John Dewey, the firstpresident of the Association, had appointed a committeeof respected scholars to draft the Declaration. Chairedby Columbia University economist Edwin Seligman, thecommittee included Arthur Lovejoy of Johns HopkinsUniversity and Roscoe Pound, then dean of the HarvardLaw School.

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Protecting anIndependent Faculty

Voice:Academic Freedom after

Garcetti v. Ceballos

1. 547 U.S. 410 (2006).

2. The debate over precisely how far academic freedomprotects both intramural speech (speech, broadly defined,about various institutional matters) and extramural speech(speech about, for example, political and social matters)persists and will continue to do so. That debate underpinsthis report, but the report does not reach a conclusionregarding the precise contours of that protection; such aconsensus is not a prerequisite to any of the steps that aresuggested at the end of this report.

When the Declaration was issued, faculty membersin both private and public institutions were largely gov-erned by the common law of master and servant, underwhich the administration supervised and was responsi-ble for the actions of the faculty, with a few exceptions.Most institutions at the time were private, under lay ordenominational control, in which those with legalpower to govern were privileged to brook no expressionat odds with their economic, political, social, or religiousviews or with speech critical of their institutions’ policies:Scott Nearing’s appointment at the University ofPennsylvania’s Wharton School was not renewed in1915—effectively constituting a dismissal—in the faceof a favorable faculty recommendation, in large partbecause of his social activism; A. A. Knowlton was dis-missed at the University of Utah in 1915 for uttering, inprivate, remarks “disrespectful” of the chairman of theuniversity’s governing board. Both actions were perfectlylawful at the time.

Nor, as Knowlton’s case demonstrated, were the facul-ties of public institutions generally regarded in any differ-ent light by virtue of public control of the university. In1892, Justice Oliver Wendell Holmes Jr., then of theSupreme Judicial Court of Massachusetts, rejected apoliceman’s claim that his discharge for participation ina political committee infringed his constitutional right offree speech with an aphorism that captured the law fordecades to come: “The petitioner may have a constitu-tional right to talk politics, but he has no constitutionalright to be a policeman.”3 The fact of public sponsorshipor control was irrelevant: the First Amendment simply didnot restrain the government when it functioned as anemployer any more than it restrained private employers.

The point was punctuated when, a decade after the1915 Declaration, the Tennessee legislature enacted alaw prohibiting all public universities and schools sup-ported by public funds from teaching “any theory thatdenies the story of the divine creation of man as taughtin the Bible and to teach instead that man has descend-ed from a lower order of animals.” So emphatic was thestate’s stricture that teaching contrary to the dictate wasmade a crime. In upholding the law in the face of highschool teacher John Scopes’s conviction for violating it,the Supreme Court of Tennessee observed that theteacher—and, by extension, any professor in a publicuniversity—“had no right or privilege to serve the stateexcept upon such terms as the state prescribed.” The law

was an order by an employer, a master, “as to the charac-ter of the work the master’s servant shall, or rather shallnot, perform. In dealing with its own employees engagedupon its own work, the state is not hampered”—notlimited, not constrained—by the constitution.

As this was the legal landscape on which the 1915Declaration was mapped, it is not surprising that thedrafters drew no support from the law and made noclaim on it. Instead, the 1915 Declaration addressedthe function of the university and so of the role of thefaculty within it. The focus was conceptual; the practicalconsequences were anticipated to play out in institu-tional policies and practices and in the public’s sympa-thetic understanding—not necessarily in the courts.

The 1915 Declaration challenged the conception ofthe professor as the servant of an institutional master,both in carrying out the institution’s teaching andresearch missions and in relation to the faculty’sstatus—and, eventually, its role—in the institution vis-à-vis the institution’s legal governors. The Declarationobserved that the functions of the university were toadvance the sum of knowledge, to promote inquiry, toprovide instruction to students—not to give them“ready-made conclusions” but to “train them to thinkfor themselves”—and to develop experts fit for publicservice. This required not only disciplinary expertise,gained by years of study and academic apprenticeship,but also independence from regental or administrativecontrol in teaching, research, and publication, save forassurance of adherence to professional standards ofcare. Where that assurance was questioned, the determi-nation of professional neglect or incompetence, of anydeparture from professional standards of care, should beplaced in the hands of the faculty as the body competentto decide such questions. In these specific regards, therelationship of professors to the institution’s legal gov-erning authorities “may be compared to that betweenjudges of the federal courts and the executive whoappoints them. University teachers should be under-stood to be, with respect to the conclusions reached andexpressed by them, no more subject to the control of thetrustees, than are judges subject to the control of thepresident, with respect to their decisions.”

The Declaration took note of the sources that work tolimit the freedom of teaching, research, and publication:the political, economic, or social biases of donors andparents that “sometimes deliberately and sometimes un-consciously, sometimes openly and sometimes subtly”are brought to bear on academic authorities; and,more threatening still, the dangers of “an overwhelm-ing and concentrated public opinion.” Subsequent

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68 3. McAuliffe v. Mayor and Board of Aldermen of NewBedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892).

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AAUP investigations were to document the role of publicoffense in causing the removal of faculty members whosespeech had triggered the public’s ire, even outrage, butwho had stayed within professional bounds of disciplinaryutterance or who had merely expressed opinions on con-tested matters of public policy. To the architects of the1915 Declaration, an exercise of academic freedom couldnot be held subject to the threats and even the conse-quences of regental or administrative disapprobation. Out-side the academy, an employee, being the agent of the em-ployer, could be held to account for speech or action in-imical to the employer’s economic interests—speech thatdisaffected clients, that engendered disharmony amongco-workers, or was disrespectful of authority—but noneof this applied to speech protected by academic freedom.

Two aspects of academic freedom should be elaborat-ed here: first, the freedom of teaching, research, andpublication; second, the role of the faculty member inthe college or university’s institutional life—as an“officer” of the institution, to use the terms of the 1940Statement of Principles on Academic Freedom andTenure, or, in a possibly more evocative metaphor, as acitizen of his or her institution.

A. FREEDOM OF TEACHING, RESEARCH, AND PUBLICATION

This is the most readily understood aspect of academicfreedom: so long as the teacher or researcher has acted inaccordance with the applicable standard of professionalcare, what is taught or endorsed cannot be held to insti-tutional account no matter the resulting disharmony orcontentiousness arising from within the institution orinstigated by external groups. Such freedom is a definingcondition of higher learning; without it, our institutionswould become mere appendages to economic interests,party politics, and dramatic if evanescent shifts in publicopinion. The universities’ usefulness as “intellectualexperiment stations,” as the 1915 Declaration puts it,where new ideas may germinate no matter how distaste-ful at the time, where prevailing pieties are tested, possi-bly to be confirmed, possibly to be found wanting, wherethe young are made to engage critically with their mostcherished beliefs, would be at an end.

It is important to stress that the assertion and exerciseof these liberties takes the master-servant model headon. As the 1915 Declaration puts it, university facultiesare “appointees” of the legal governing authority “butnot in any proper sense” its “employees.” (Emphasisadded.) “[O]nce appointed, the scholar has professionalfunctions to perform in which the appointing authoritieshave neither competency nor moral right to intervene.The responsibility of the university teacher is primarily 69

to the public itself, and to the judgment of his own pro-fession.” The conclusion inexorably to be drawn contra-dicted the assumptions of managerial control andaccountability imported under the common law master-servant relationship:

A university is a great and indispensable organ ofthe higher life of a civilized community, in the workof which the trustees hold an essential and highlyhonorable place, but in which the faculties holdan independent place, with quite equal responsi-bilities—and in relation to purely scientific andeducational questions, the primary responsibility.4

B. SPEECH AS AN INSTITUTIONAL CITIZEN

By the late 1930s, the principles of academic freedom inteaching, research, and publication had become generally

4. The inapplicability of the master-servant model wasechoed by Judge Benjamin Cardozo, then of the New YorkCourt of Appeals, in the rather surprising setting of thecharitable immunity doctrine (now widely abandoned) thatinsulated charities from liability for the negligence of theiremployees. Hamburger v. Cornell University, 148 N.E.539 (N.Y. 1925). The precise question presented was whethera student injured in a chemistry laboratory could sue theuniversity for her professor’s negligence. The court held thatshe could not. There might be a duty to select the professorwith care, Cardozo reasoned,

but that duty being fulfilled, there was no duty to super-vise day by day the details of their [the faculty’s] teach-ing. The governing body of a university makes noattempt to control its professors and instructors as ifthey were its servants. By practice and tradition, themembers of the faculty are masters, and not servants,in the conduct of the classroom. They have the inde-pendence appropriate to a company of scholars.

Id. at 541. Two decades later Judge Charles E. Wyzanski Jr.,then president of the Board of Overseers of HarvardUniversity, echoed Cardozo, albeit in speaking to a very dif-ferent situation:

A university is the historical consequence of the mediae-val stadium generale—a self-generated guild of stu-dents or of masters accepting as grounds for entranceand dismissal only criteria relevant to the performanceof scholarly duties. The men who become full membersof the faculty are not in substance our employees. Theyare not our agents. They are not our representatives.They are a fellowship of independent scholars answer-able to us only for academic integrity.

Charles Wyzanski, “Sentinels and Stewards,” HarvardAlumni Bulletin, January 23, 1954, 316.


accepted in most of public and nondenominational pri-vate higher education. These were codified in the 1940Statement of Principles on Academic Freedom andTenure, drafted by the AAUP and the Association ofAmerican Colleges (now the Association of AmericanColleges and Universities). Today, the 1940 Statementhas been endorsed by more than two hundred learnedsocieties and higher education associations. It has alsobeen adopted by a great many, perhaps most, collegesand universities in the United States, where it is typicallyincorporated or referenced in faculty handbooks or con-tracts. It has been relied upon as persuasive authority bycourts to shed light on, and to resolve, a wide range ofcases related to academic tenure.5 Though the 1915Declaration discussed the faculty member’s freedom tospeak as a citizen on questions outside the professor’sdisciplinary domain, in part quoting from a Wisconsinreport to the effect that “it is neither possible nor desir-able to deprive a college professor of the political rightsvouchsafed to every citizen,” the 1915 Declaration drewno special attention to faculty speech regarding the insti-tution’s own internal affairs.

Yet many of the Association’s early investigations, in-cluding its very first at the University of Utah, concernedspeech of just that character, speech critical of the institu-tion’s governing board or president or speech contestinginstitutional policies or actions. Thus the question whetherspeech of that nature was encompassed by the profession’sunderstanding of academic freedom pressed to the foreand called for address. The Association took it up both inindividual case reports and then in the 1940 Statement.

The academic freedom aspects of the faculty’s role inthe institution are manifested in one of two ways: speechor action taken as part of the institution’s governingprocess; and speech or action taken outside the formalstructure of governance that is critical of institutionalpolicies, actions, or inactions, including criticism ofthose in authority who have acted or have refused to act.

1. Participation in Established GovernanceTwo years after creating its Committee A on AcademicFreedom and Tenure, the Association established itsCommittee T on the Place and Function of Faculties inUniversity Government and Administration (now the

Committee on College and University Governance).Committee T issued its first report in 1920, surveying theextent of faculty responsibility exercised by regulation orcustom in several dozen institutions and recommendingbest practices. The committee’s report noted the then“prevailing” type of university organization in whichfaculties

have little or no legally recognized voice in thedetermination of the conditions, in the matters offundamental university policies, academic statusand salary. . . . It is argued that this situation isresponsible, in part, for the timidity and lack ofenterprise and spirit of so many university teach-ers; that they tend to become either creatures oftrivial pedagogical routine, deficient in the spiritof personal independence and intellectual cre-ativeness, or discontented rebels, because they areparts of a system in the guidance and reform ofwhich they do not effectively participate.6

Over the course of the following decades facultiessought and increasingly gained institutional recognitionfor a role in policy and decision making. As a normativematter, the faculty’s role in institutional government wascodified in the 1966 Statement on Government ofColleges and Universities, which was jointly formulatedby the AAUP, the American Council on Education, and theAssociation of Governing Boards of Universities andColleges. It recognized the faculty’s right to informationand consultation in most areas of institutional operationbut accorded the faculty primary responsibility in certainfundamental academic matters such as curriculum, sub-ject matter and methods of instruction, and faculty sta-tus. Just as the 1915 Declaration conceived of the facultyas an equal to the governing board and administration,the 1966 Statement conceives of professors as citizens oftheir institutions whose active engagement in the institu-tion’s teaching and research mission, whose intimateknowledge of their own and cognate disciplinary trendsand needs, whose deep engagement with students, andwhose day-to-day knowledge of the details of the institu-tion’s workings entitle them to participate, to be heard,and, if need be, to criticize free of institutional sanction.

The close connection between academic freedom asteacher and researcher and academic freedom as institu-tional citizen was explained in the AAUP’s 1994 state-ment On the Relationship of Faculty Governance toAcademic Freedom. The rich texture of that explanation

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5. See, for example, Vega v. Miller, 273 F.3d 460, 476 (2dCir. 2001) (Cabranes, J., dissenting); Browzin v. CatholicUniv. of Am., 527 F.2d 843, 848 & n.8 (D.C. Cir. 1975) (“The1940 Statement represent[s] widely shared norms within theacademic community, having achieved acceptance by organ-izations which represent teachers as well as organizationswhich represent administrators and governing boards”).

6. “Report of Committee T on the Place and Function ofFaculties in University Government and Administration,”AAUP Bulletin 6 (March 1920): 21–22.

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position was codified in the 1940 Statement when itspoke of the academic freedom of faculty as “officers” oftheir institution, echoing the 1915 Declaration’s demandthat faculty be treated as fully the equal of trustees andadministrators. Consequently, as On the Relationship ofFaculty Governance to Academic Freedom puts it,

Protecting academic freedom on campus requiresensuring that a particular instance of facultyspeech will be subject to discipline only wherethat speech violates some central principle of aca-demic morality, as, for example, where it is foundto be fraudulent (academic freedom does not pro-tect plagiarism and deceit). Protecting academicfreedom also requires ensuring that faculty statusturns on a faculty member’s views only where theholding of those views clearly supports a judg-ment of competence or incompetence.Although the business interests of a corporation may

empower it to punish employee speech that disparages itsproduct or the competence of those in command, univer-sities serve the common good, and how the common goodis best served cannot be resolved by managerial dictate.8

The very same expertise and institutional commitmentthat legitimizes the faculty’s role in institutional govern-ment legitimizes its right to criticize institutional policiesand actions even when that speech is not uttered in agoverning forum. A letter to the campus or public pressexpressing a lack of confidence in the institution’s trusteesor president—indeed, a call for the president’s resigna-tion or for a vote of no confidence by the faculty—isinsulated from institutional retaliation as a matter ofacademic freedom. In this example, the critical distinc-tion between a faculty member and an employee of acorporation with traditional business interests comes tothe fore: the faculty member is acting not as a spokesper-son for the institution—and so subject to control for theviews expressed—but as a citizen of the institution.

II. How Far Does the First AmendmentProtect Academic Freedom?While the AAUP spent the first several decades of thetwentieth century articulating the professional

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need not be rehearsed here; it is enough to note that itwould be antithetical to the very purpose of seeking a fac-ulty’s considered judgment on a question of institutionalpolicy or action to retaliate against those whose views arebeing sought because they are contrary to those of theadministration. A corporate manager who persistentlyadvances policies contrary to the plans of the company’schief executive may be removed for failing to be in har-mony with those objectives or for dissenting from them. Aprofessor may not be made subject to retribution becausethe position he or she has advanced on matters relatingto governance displeases those in power.7

2. Criticism and DissentAlthough the 1915 Declaration did not address the rela-tionship of academic freedom to intramural speech, casesof institutional sanction in just that situation were fast inpresenting themselves for Committee A investigation—dismissal for criticism of the credentials or competenceof a president or dean, for appeals for salary improve-ments, and, importantly, for demands for faculty partici-pation in institutional governance. The Associationcame to the position that speech on these questions wasencompassed by the concept of academic freedom. That

7. Whence the difficulty five justices of the U.S. SupremeCourt had with the status of the faculty of a private universityunder the law of collective bargaining. NLRB v. YeshivaUniversity, 444 U.S. 672 (1980). In industry the range ofeffective recommendatory authority faculty possessed wouldrender them agents of management ineligible to engage incollective bargaining: they decide teaching methods, gradingpolicies, admissions standards, and degree requirements,that is, in industrial terms what the product will be, how itwill be made, and with what raw materials. “To the extentthe industrial analogy applies,” the majority opined, the fac-ulty are managers. Id. at 686. As the dissenters pointed out,however, academic freedom insulated the faculty fromaccountability in the industrial sense, to which the majorityreplied that “the analogy of the university to industry neednot, and indeed, cannot be complete.” Id. at 689. As demon-strated by the tension in the Yeshiva decision, if the exemp-tion of managers from collective bargaining in industry ispremised on the need to maintain their undivided loyalty,necessarily requiring that managers be solely accountable tothe corporation’s officers, and if faculty in exercising theircollective professional judgment are not—indeed cannot—be held accountable in that industrial sense, then facultycannot be managers precisely because of the want of hierar-chical control, because they are not held to observe a duty ofloyalty in the industrial sense.

8. A United States Court of Appeals has even held that anemployee’s public remarks that management’s layoff deci-sion had “left a void” in the company’s knowledge base andthat those who made the decision had “no good ability” torun the company were so disloyal as to justify dischargedespite the decision of the National Labor Relations Boardthat the speech was fair comment during a union organiza-tional drive. Endicott Interconnect Technologies, Inc. v.NLRB, 453 F.3d 532 (D.C. Cir. 2006).


understanding of academic freedom—a principle thathas force independent from, and regardless of, judicialrecognition, which must necessarily find a legal “hook”for its dictates—courts were slow to catch up. Nevertheless,by the middle of the twentieth century, courts were be-ginning to recognize the importance of academic free-dom and to sketch out the contours of a protected legalright to it. That judicial recognition would, of course,prove to be detrimental in some ways, as the courts’crabbed reading of public employees’ First Amendmentrights would ultimately allow (though not require)courts to restrict the First Amendment academic freedomrights of faculty members as well. If we are to gauge theimpact of the Garcetti decision and its subsequent appli-cation by lower courts, however, we must start by analyz-ing the extent to which courts understood the FirstAmendment to protect academic freedom before theGarcetti majority’s ruling. Specifically, we should deter-mine the extent to which constitutional doctrines of freespeech encompassed faculty expression of the type thathas now been placed at greater risk. That assessment isthe focus of this section of the subcommittee report.

A. PRIVATE HIGHER EDUCATION

First, we should set aside private or independent highereducation, to which First Amendment constraints do notapply. Even in California, which has uniquely imposedsuch limits on private campuses, only the speech of stu-dents at secular institutions is protected by special statelegislation, which makes no mention of professors.Elsewhere, courts may occasionally impose legal obliga-tions on independent institutions in regulating thespeech of their faculties, but for quite different reasons.New York courts, for example, have provided remediesfor outspoken professors on private campuses but onlybecause of a unique state law that empowers judges toprobe the fairness of all chartered private entities.

There have also been a few cases in which federalcourts have found a private university receiving massivegovernment subvention to be engaged in “state action”and thus potentially subject to quasi-constitutional stan-dards, but those cases seem to have dealt only with race,gender, and other unlawful forms of bias. Thus the ini-tial premise remains sound; because our task concernsthe constitutional protections for academic freedom writlarge, we are concerned here only with publicly supportedinstitutions.

This division between public and private also under-scores the clear implication that faculty members at pri-vate institutions (and at public institutions, as we shallsee later) must seek nonconstitutional protections forthe full spectrum of faculty speech—teaching- and

research-related, intramural, and extramural. Indeed,any reputable private institution must pride itself onimposing at least equivalent standards upon itself asthose that the Constitution imposes upon public institu-tions. Faculty members at private as well as at publicinstitutions will find specific recommendations at theend of this report: recommended policy language andavenues by which to encourage institutions to commit toprotecting faculty expression for the good of the institu-tion as well as the good of the faculty and the public as awhole.

B. PUBLIC HIGHER EDUCATION: ACADEMIC FREEDOM IN THE COURTS

When it comes to the public sector, the answer to theseemingly simple question of the extent of constitutionalprotection of academic freedom turns out to be daunt-ingly complex. The first hint that professorial speechmight be different from that of other public employeescame in two 1952 dissents by Justice William O. Douglasand a concurrence by Justice Felix Frankfurter that sameyear.9 These early stirrings were followed five years laterby Justice Frankfurter’s signal concurrence in the firstclear victory for academic expression in Sweezy v. NewHampshire.10 Although the majority in Sweezy ruled infavor of a visiting lecturer whose class notes had beendemanded by state officials probing suspected subversiveactivity, the rationale for that ruling was due processrather than free expression. Chief Justice Earl Warren,writing for the majority, did explicitly recognize theimportance of free inquiry in the academic setting,adding the majority’s view that “there unquestionablywas an invasion of petitioner’s liberties in the area ofacademic freedom,” though such statements were sim-ply helpful dicta. The chief justice also observed,

The essentiality of freedom in the community ofAmerican universities is almost self-evident. Noone should underestimate the vital role in ademocracy that is played by those who guide andtrain our youth. To impose any strait jacket uponthe intellectual leaders in our colleges and univer-sities would imperil the future of our Nation. . . .Scholarship cannot flourish in an atmosphere ofsuspicion and distrust. Teachers and students mustalways remain free to inquire, to study and to eval-uate, to gain new maturity and understanding;otherwise our civilization will stagnate and die.

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729. Adler v. Board of Education, 342 U.S. 485 (1952);

L’Hommedieu v. Board of Regents, 342 U.S. 951 (1952);Wieman v. Updegraff, 344 U.S. 183 (1952).

10. 354 U.S. 234 (1957).

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freedom, which is of transcendent value to all of us andnot merely to the teachers concerned. That freedom istherefore a special concern of the First Amendment,which does not tolerate laws that cast a pall of ortho-doxy over the classroom.” This was, however, no ordi-nary case of government workers’ free speech; indeed,even basic constitutional protection for public employeeexpression would not be recognized until the ensuingterm. Moreover, Justice Brennan’s opinion was liberallyenhanced by explicit declarations of the Court’s specialsolicitude for the speech and other expressive activitiesof state college and university professors. Those refer-ences also strongly implied a broader scope for suchprotection, extending beyond the classroom, the labora-tory, and the published scholarship to which academicfreedom most clearly and logically applied.

Yet the conundrum persisted: had the same challengeto New York’s loyalty test been mounted instead by agroup of nonacademic employees, would the outcomehave been different? Given Justice Brennan’s abidingcommitment to the doctrine that a government bene-fit—here, public employment—could only rarely beaccompanied by restrictions on the employee’s freedomof speech, it seems unlikely that if the issue had firstreached the high court in a nonfaculty case the resultwould have been different. The prevailing opinionwould, however, have been vastly different; lacking theunique capacity to illustrate the vitality of unfetteredexpression and free inquiry in the academic setting, themajority ruling would have lacked most of its memo-rable eloquence and enduring force. Thus it was a for-tunate coincidence—and perhaps even more than that,if not a constitutional imperative—that the case inwhich to reverse a long course of deference to states inrestricting speech of government workers involved stateuniversity professors.

One who doubted the potential value of such rulingsfor faculty speech—or academic freedom—mightremind us, however, that around this time, the SupremeCourt was ready to hold public higher educationaccountable to First Amendment standards in non-faculty matters. The classic example was Healy v.James, a 1972 ruling that recognized the right of aradical student group not to be denied state collegerecognition on one campus because of disruptive activi-ties elsewhere or administrative disapproval of its mis-sion or agenda.13 Though the Healy opinion invokedboth Sweezy and Keyishian as evidence of the justices’commitment to “safeguarding academic freedom,” the

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For Justice Frankfurter, who as a Harvard Law Schoolprofessor in the 1920s and 1930s had been involved inhis share of academic freedom challenges, the speech ofprofessors was simply different and deserved a higherlevel of solicitude. He opined in concurrence that “thedependence of a free society on free universities” requires“the exclusion of governmental intervention in theintellectual life of a university. It matters little whethersuch intervention occurs avowedly or through actionthat inevitably tends to check the ardor and fearlessnessof scholars, qualities at once so fragile and so indispen-sable for fruitful academic labor.”

Professors would continue during the next decade toprevail in court challenges to state laws that severelyabridged free expression, though usually withoutexplicit mention of academic freedom. Highly signifi-cant Supreme Court rulings invalidated, for example,loyalty oaths in Florida and Washington State at thebehest of state university professors, though on groundsthat were equally available to the range of publicemployees in those states.11 Clearly the plaintiff profes-sors were sympathetic challengers, whose pleas mayhave made the justices more comfortable both inreviewing such cases and in imposing First Amendmentconstraints, though such a view of the interim casesremains wholly conjectural.

The first unambiguous recognition of academic free-dom as a First Amendment interest came in JusticeWilliam Brennan’s opinion for the Court in Keyishianv. Board of Regents, revisiting a disclaimer oath thatthe Court had sustained a decade earlier but now deci-sively invalidated on First Amendment grounds.12 Theplaintiffs in Keyishian, faculty members (and one non-faculty employee) at the State University of New York,objected to a required oath certifying that they were notmembers of “subversive organizations” and challengeda New York State law prohibiting the distribution ofmaterials “containing or advocating, advising or teach-ing” the forceful overthrow of the government as viola-tions of their First Amendment rights. The SupremeCourt agreed, observing that the breadth and vaguenessof the state law would effectively compel teachers to stayfar away “from utterances or acts,” or even the “writingof articles,” which might “jeopardize [their] living.” AsJustice Brennan said for a unanimous Court: “OurNation is deeply committed to safeguarding academic

13. 408 U.S. 169 (1972).

11. Cramp v. Board of Public Instruction, 368 U.S. 278(1961); Baggett v. Bullitt, 377 U.S. 360 (1964).

12. 385 U.S. 589 (1967) (reversing Adler v. Board ofEducation, 342 U.S. 485 [1952]).


outcome suggested that nonfaculty speech—and specifi-cally student extracurricular political activity for whichno familiar academic freedom claim could be made—was equally entitled to constitutional protection. Andaround the same time (in fact even a bit earlier) theCourt uniquely rebuked a public school district, in theTinker case, for suppressing nonverbal student speech—black armbands worn to protest the Vietnam War—onthe basis of claimed “disruption” without proof of acompelling regulatory interest.14 Thus judicial skepticismabout administrative authority in the academic settingwent well beyond cases involving university professors.

The same skeptic might cite two pivotal rulings thesame year as Healy in which the claims of state collegeprofessors prevailed against summary dismissal in repris-al for their controversial extramural statements.15 Whena substantial claim had been made in support of a feder-ally cognizable interest such as continued academicemployment, the justices now insisted that due processmust be afforded. Thus the contentious tenured professormust receive an adequate hearing before major sanc-tions could be imposed. (For faculty members withouttenure, for whom an interest in continued academicemployment does not have the same constitutionaldimensions, the level of procedural protection that mustbe observed before dismissal is much lower as a legalmatter.) Here again one might be tempted to find solici-tude for academic freedom, but we should note thatcomparable procedural protection had been afforded towelfare recipients facing summary termination of theirbenefits and to a householder whose refrigerator wasabout to be repossessed for credit default. The outspokenprofessors again offered a most appealing vehicle forrecognition of due process, and the Court’s discussion oftheir expectation of continued employment was quitesympathetic and undeniably helpful. But the bottom linein such cases seems to have been drawn well short ofspecial protection for academic freedom.

Lower-court rulings also fail to provide definitiveanswers to this persistent question of how far the FirstAmendment protects academic freedom. Of those dis-tressingly few cases in which outspoken faculty or profes-sors with unwelcome affiliations have prevailed on freespeech grounds, even fewer offer clear evidence of theimportance of academic freedom beyond helpful refer-ences. Perhaps the case that comes closest to a positive

correlation was Cooper v. Ross, a 1979 district court rul-ing that reversed the nonreappointment of a politicalscientist at the University of Arkansas at Little Rock forhaving revealed his Marxist convictions to his under-graduate classes.16 The judge concluded that suchadverse action violated the professor’s First Amendmentrights, noting that “at least in the context of a universityclassroom, he had a constitutionally protected right sim-ply to inform his students of his personal and politicaland philosophical views.” Even this ruling, howeverhelpful, was limited to core faculty speech in the class-room and entailed a single rather mild statement aboutan unwelcome ideology.

Before leaving this part of the equation, we shouldmake some mention of other Supreme Court cases rec-ognizing and protecting faculty academic freedom.Especially relevant are the two major race-sensitiveadmissions rulings, Bakke in 1978 and Grutter a quar-ter century later, and a 1985 case on academic stan-dards, Ewing, that was bookended by the two.17 JusticeLewis Powell in Bakke and Justice Sandra Day O’Connorin Grutter cited academic freedom considerations tosupport their deference to certain uses of race in thestate university admissions process. Such rulings areundeniably most helpful in the larger context of judicialrecognition of academic freedom. They do not, however,offer much insight into the specific question that occu-pies us here—the extent to which academic freedomclaims a right to, and benefits from, First Amendmentprotection. What was involved in the race-based admis-sions rulings was not individual faculty speech or politi-cal activity but the very different (if equally important)concept of collective faculty endorsement of certainadmissions policies through the exercise of shared uni-versity governance. And since in both cases faculty bod-ies, administrators, and governing boards were all on thesame page, there was no occasion to consider whichinterests or views would prevail in the inevitable case ofdisagreement or divergence between faculty and boardor administration. For the moment, it is enough to takenote of the admissions decisions, while seeking else-where for answers to our central inquiry.

In Ewing, the Supreme Court spoke forcefully in favorof deference to faculty decisions on academic matters.Ewing involved a decision by a committee at the

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7416. 472 F. Supp. 802 (E.D. Ark. 1979). 17. Regents of the University of California v. Bakke,

438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306(2003); Regents of the University of Michigan v. Ewing,474 U.S. 214 (1985).

14. Tinker v. Des Moines Independent CommunitySchool District, 393 U.S. 503 (1969).

15. Perry v. Sindermann, 408 U.S. 593 (1972); Boardof Regents of State Colleges v. Roth, 408 U.S. 564 (1972).

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Amendment interest than the justices addressed publicemployee speech more broadly.19 The case was that ofMarvin Pickering, an Illinois public high school teacherwho was dismissed after the local newspaper publishedhis letter that was highly critical of the school board’sbudget policies and priorities. The Illinois SupremeCourt affirmed the dismissal, using language little dif-ferent from Justice Holmes’s 1892 approval of the dis-charge of the politically active patrolman.20

The U.S. Supreme Court was now ready to alter sub-stantially the law of public employee speech. Even thoughPickering’s letter contained several factual errors, hecould not be dismissed for his extramural speech withoutproof that he wrote either knowing that those statementswere false or in “reckless disregard” of their accuracy—the very standard the Court had applied several years ear-lier in the New York Times libel case to news mediacomments about public officials and public figures.21 TheCourt articulated a balancing test weighing “the interestsof the teacher, as a citizen, in commenting upon mattersof public concern” against “the interest of the State, asan employer, in promoting the efficiency of the publicservices it performs through its employees.” Under thistest, public employee speech would likely not be protectedif it took excessive time away from assigned duties, dis-rupted morale or efficiency within the agency, under-mined confidence among the agency’s clients, or simplydemonstrated a clear lack of competence or fitness tocontinue on the job.

There was another possible limitation. In emphasizingthe importance of allowing Pickering to publish his letter,the Court stressed that “[t]eachers are, as a class, themembers of a community most likely to have informedand definite opinions as to how funds allotted to the op-eration of the schools should be spent. Accordingly, it isessential that they be able to speak out freely on suchquestions without fear of retaliatory dismissal.” The Courtadded, however, that the budgetary data about whichPickering inaccurately wrote

were matters of public re-cord on which his positionas a teacher in the district did not qualify him tospeak with any greater authority than any other tax-payer. . . . We are thus not presented with a situationin which a teacher has carelessly made false state-ments about matters so closely related to the day-to-day operations of the schools that any harmful

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University of Michigan to drop a student from a specialmedical school program without allowing him to retakea national board test on which he had achieved the low-est recorded score of any student in the history of theprogram. In answer to the student’s challenge that thecommittee’s decision (as well as the committee’s reaffir-mation of its decision on appeal and its ratification bythe executive committee of the medical school) haddeprived the student of his property interest in continuedenrollment in the program, the Court observed that “[i]fa ‘federal court is not the appropriate forum in which toreview the multitude of personnel decisions that aremade daily by public agencies,’ far less is it suited toevaluate the substance of the multitude of academicdecisions that are made daily by faculty members ofpublic educational institutions.” As Justice John PaulStevens noted for a unanimous Court, “When judges areasked to review the substance of a genuinely academicdecision, such as this one, they should show great respectfor the faculty’s professional judgment.” The Court alsoquoted approvingly an earlier concurrence by JusticePowell urging that “university faculties must have thewidest range of discretion in making judgments as to theacademic performance of students and their entitlementto promotion or graduation.”18 The unanimous Courtthereby recognized the importance of awarding facultyprimary authority over academic matters—which en-compassed, in Ewing, issues relating to an institution’sacademic standards vis-à-vis its students and presumablywould also encompass questions of academic standardsvis-à-vis hiring, faculty promotions, research agendas,and more.

What can be said with confidence, therefore, is that ahost of cases involving faculty speech have recognized avital First Amendment interest in academic freedom asa basis for protecting such expression from institutionalor governmental sanctions. Such decisions have provedimmensely helpful to faculty interests in a host of waysover the past half century. Whether any or all of theserulings would have occurred in the absence of professo-rial plaintiffs and academic freedom claims remains asubject of conjecture and creates inescapable uncertaintyfor the present inquiry.

C. PUBLIC EMPLOYEE SPEECH

Barely had the Supreme Court’s Keyishian ruling ex-pressly recognized academic freedom as a First

19. Pickering v. Board of Education, 391 U.S. 563 (1968).20. Pickering v. Board of Education, 36 Ill. 2d 568, 225

N.E.2d 1 (Ill. 1967). 21. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

18. 474 U.S. at 225 n. 11 (quoting Board of Curators,University of Missouri v. Horowitz, 435 U.S. 78, 96 n.6[Powell, J., concurring]).


impact on the public would be difficult to counterbecause of the teacher’s presumed greater access tothe real facts.

This comment suggested that the same criticism pub-lished by someone known to be familiar with the fiscalrealities of the school district might in fact not have beencomparably protected if it were false—even if it could nothave been shown that such a person spoke with “actualknowledge of falsehood” or “reckless disregard” of accuracy.

Two quite different theories might explain this facet ofthe Pickering decision. On the one hand, the Court’s thrustmay have been to protect a public employee’s speech as acitizen rather than as a government worker; not onlywould later cases reinforce that view, but the Pickeringmajority itself concluded that, given the circumstances,“the interest of the school administration in limitingteachers’ opportunities to contribute to public debate isnot significantly greater than its interest in limiting a sim-ilar contribution by any member of the general public.”

There was, however, a more ominous theory whollyoverlooked at the time but clearly portentous in the post-Garcetti context: that the justices were from the outsetcommitted only to protecting public employees whenthey spoke (at least inaccurately) on matters remotefrom their field of expertise or assigned responsibility.That theory certainly fit the facts of Pickering. It would,however, have created the implication that a letter writerwho knew the facts—or even who was perceived in thecommunity as knowing the facts, whether such knowl-edge actually existed—would have been subject to dis-missal under the Pickering balancing test, as a result ofthe disruption or the undermining of client confidencesthat such a letter might have caused.

The evolution of the Pickering doctrine in the ensuingfour decades may be summarized briefly here, since few ofthe refinements directly affect our current inquiry. Oneearly development is, however, highly significant. JusticeThurgood Marshall made clear that public employee speechwould be protected only if it addressed a “matter of publicconcern,” though without defining that term, since theIllinois school boards could hardly have claimed Pickering’sletter to be otherwise. But fifteen years later, in Connick v.Myers, the high court drew a less than perfectly clear line

between protected “public concern” on one side and un-protected “personal grievances” on the other.22 Thereafteragency heads would enjoy at least a presumption that in-ternal criticism did not target “matters of public concern”and therefore was not protected by the First Amendment.

Such deference would be strongly buttressed a decadelater by the Court’s recognition in Waters v. Churchill ofa broader latitude for public employers in speech cases.23

That deference, while not overruling or even expresslyundermining Pickering, seemed to enhance the pre-sumption in such cases; for example, “surely a publicemployer may, consistently with the First Amendment,prohibit its employees from being ‘rude to customers,’ astandard almost certainly too vague when applied to thepublic at large.” This ruling also “elevated from a rela-tively subordinate interest when it acts as sovereign to asignificant one when it acts as employer . . . the govern-ment’s interest in achieving its goals as effectively andefficiently as possible.”

Along the way, there have been a few bright spots anda few procedurally helpful rulings, mainly Mt. HealthySchool Board v. Doyle, which shifted the burden to theemployer (in that case a public school district) when adismissed or even nonrenewed employee establishes thatthe catalytic conduct was constitutionally protected.24 Inresponse to such a burden, the employer must demon-strate that adverse action would have occurred notwith-standing the protected expression or activity.

In addition, a decade after Pickering, the Court heldthat speech addressed privately to one’s supervisor maystill be protected, as long as a matter of public concern isimplicated. Anticipating the Catch-22 that the Garcettidecision would produce, the Court held in Givhan v.Western Line Consolidated School District that “[t]hisCourt’s decisions in Pickering, Perry, and Mt. Healthydo not support the conclusion that a public employeeforfeits his protection against governmental abridgmentof freedom of speech if he decides to express his viewsprivately rather than publicly.”25

For the most part, however, the judicial developmentand refinement of the Pickering doctrine has hadremarkably limited import for faculty speech or for aca-demic freedom.

Such limitation does not, however, mark the most re-cent development, which is the focus of this report andthe work of the subcommittee. From the earliest judicial

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7623. 511 U.S. 661 (1994).24. Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 274 (1977). 25. 439 U.S. 410 (1979).

22. 461 U.S. 138 (1983) (upholding termination of anassistant district attorney for circulating a job satisfactionquestionnaire among her colleagues on the grounds thatthe questions were not matters of public concern but wereraised for the purpose of criticizing her supervisor and thatany First Amendment right was outweighed by the supervi-sor’s interest in maintaining a functioning office).

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speech could, in short, be both job related and directedat a matter of public concern.27

The only possible exception was the Fourth Circuit.In sustaining a Virginia statute that barred the use ofstate-owned or state-leased computer equipment toaccess sexually explicit material (without a supervisor’sapproval for a “bona fide research project”), an enbanc (or full court) majority in Urofsky v. Gilmoreseemed to imply that job-related speech was not pre-sumptively protected; in the relevant Supreme Courtrulings, said the appeals court, the justices had“emphasized the unrelatedness of the speech at issue tothe speaker’s employment duties.”28 (Emphasis added.)That observation was not vital to the judgment, whichdeferred broadly to the state in the operation and regu-lation of its computer equipment and systems and alsodeclared, over the strong opposition of one judge, thatacademic freedom (to the extent it claimed any pro-tection) was an institutional and not an individual

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recognition of the distinction between potentially pro-tected speech “on matters of public concern” and speechof citizens that is unprotected because it does not addresssuch matters (including but not limited to “personalgrievances”), courts have struggled to understand andapply that distinction in myriad workplace disputes.

Especially troubling has been the status of speech inor concerning the public workplace, not clearly raising“personal grievances” but addressing issues of agencypolicy or procedure in which the speaker had no dis-abling or disqualifying personal stake. Though theSupreme Court had declined to address that question, itcame before most of the federal courts of appeals duringthe 1990s and into the new century. Without apparentexception, the federal circuit courts ruled that merelyjob-related speech did not forfeit Pickering protection ifit did touch matters of public concern and did notimplicate potential personal grievances. Although courtshave had difficulty grappling with the precise applica-tion of the Pickering and Connick analyses to speechon academic matters, the U.S. Courts of Appeals for theFifth, Sixth, Seventh, Eighth, Tenth, and EleventhCircuits ruled with striking consistency during this peri-od that job relatedness did not disentitle a governmentworker from presumptive Pickering protection.26 Such

27. There is also, of course, troubling language fromthose appeals courts regarding First Amendment protectionfor faculty speech. For example, in 1991, the EleventhCircuit relied inaptly on high school speech cases, in partic-ular Hazelwood School District v. Kuhlmeier, 484 U.S. 260(1988), to hold that the University of Alabama was entitledto control the classroom speech of a faculty member inexercise physiology who asked his students to filter his class-room instruction through the lens of his Christian beliefs.Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991). The courtstated: “[W]e consider the University’s position as a publicemployer which may reasonably restrict the speech rights ofemployees more readily than the [sic] those of other per-sons. As a place of schooling with a teaching mission, weconsider the University’s authority to reasonably control thecontent of its curriculum, particularly that content impartedduring class time. Tangential to the authority over its cur-riculum, there lies some authority over the conduct ofteachers in and out of the classroom that significantly bearson the curriculum or that gives the appearance of endorse-ment by the university.” Id. at 1074. The court concluded,“Though Dr. Bishop’s sincerity cannot be doubted, his edu-cational judgment can be questioned and redirected by theUniversity when he is acting under its auspices as a courseinstructor, but not when he acts as an independent educatoror researcher. . . . We have simply concluded that theUniversity as an employer and educator can direct Dr.Bishop to refrain from expression of religious viewpoints inthe classroom and like settings.” Id. at 1077.

28. 216 F.3d 401, 407 (4th Cir. 2000) (en banc), cert.denied, 531 U.S. 1070 (2001).

26. See, for example, Johnson v. Lincoln University ofCommonwealth System of Higher Education, 776 F.2d443 (3d Cir. 1985) (holding that faculty member’s cam-paign against the university president, critical letters to uni-versity’s accrediting body, involvement as plaintiff in suc-cessful lawsuit challenging previous unconstitutional activ-ity by the university, and criticisms of academic departmentall implicated faculty member’s First Amendment interests,and noting that “the academic context and the fact thatthese controversies took place apart from any close workingrelationships with immediate supervisors” distinguishedthis case from Connick, among others); Landrum v.Eastern Kentucky University, 578 F. Supp. 241, 246–47(E.D. Ky. 1984) (citations omitted) (concluding that facultymember’s speech on various matters of academic gover-nance, as a result of which he alleged he was deniedtenure, was unprotected by the First Amendment because itdealt “‘with individual disputes and grievances’ which‘would be of no relevance to the public’s evaluation of theperformance of governmental agencies,’” while acknowl-edging that “there must be more room for divergent viewsin a university situation than in a prosecutor’s office, and. . . frequently the working relationship between a universityand members of the faculty is not as close as that whichexisted in Connick”).


interest. But before listing the Fourth Circuit in a differ-ent column, we must note two post-Urofsky cases, bothinvolving clearly job-related speech (of a Virginia policeofficer and a Maryland university professor), in both ofwhich the court of appeals conferred the same degree ofpresumptive protection as had all the sister circuits.29

That leaves the Ninth Circuit, where the controversyunder examination here began. Richard Ceballos was anassistant district attorney in Los Angeles County, who wasdisciplined for critical comments about the way inwhich the agency handled certain pretrial evidence. Hewas transferred to the most remote of the branch DA’soffices and, because of the lengthy commute to andfrom his new workplace, was expected to engage in whatthe staff euphemistically called “freeway therapy.”Instead, Mr. Ceballos filed suit in federal court againstthe district attorney, claiming a violation of his FirstAmendment right to criticize operations of his agency.There was no suggestion that under applicable stan-dards, such as those applied by other circuits, theseadmittedly job-related concerns fell outside Pickeringprotection as “personal grievances” or for other reasons.Thus, a majority of the Ninth Circuit panel joined theprevailing chorus. But Judge Diarmuid O’Scannlain fileda dissent, arguing that, consistent with Pickering andlater Supreme Court rulings, job-related speech shouldnot be deemed to address a “matter of public concern”and thus would be disqualified at the threshold.

When the Supreme Court agreed to review the case,despite the absence of any conflict among circuits on thecentral issue, a potential elevation of the O’Scannlainview seemed highly probable. Sensing that hazard, theAAUP and the Thomas Jefferson Center for the Protectionof Free Expression collaborated on an amicus briefaddressing specifically and at length the potentialimport for faculty expression and academic freedom ofadopting the O’Scannlain view and denying Pickeringprotection to job-related speech. In essence, the briefstressed the potentially perverse result of applying theO’Scannlain view to faculty speech and cautioned that

such a distortion of First Amendment values would leavepotentially unprotected most faculty speech in or nearareas of the speaker’s expertise—on which society mostclearly depended for law and policy making and whichcases such as Sweezy and Keyishian indicated was pro-tected by First Amendment academic freedom—whilelimiting protection to statements so clearly beyond thespeaker’s competence as to have minimal societal orgovernmental value. Other amici also sensed a potentialreversal of what by now was a well-established and wide-ly prevalent view on this very issue.

The worst fears of these amici were realized when theSupreme Court majority declared that speech within apublic employee’s “official duties” would no longer trig-ger First Amendment analysis because it was not the typeof citizen speech that Pickering sought to protect. JusticeAnthony Kennedy’s majority opinion did caution that“expression related to academic scholarship or class-room instruction implicates additional constitutionalinterests that are not fully accounted for by this Court’scustomary employee-speech jurisprudence.” The majori-ty opinion therefore carved out a welcome, thoughincompletely theorized, reservation: “We need not, andfor that reason do not, decide whether the analysis weconduct today would apply in the same manner to acase involving speech related to scholarship and teach-ing.” In dissent, Justice David Souter (joined by JusticesStevens and Ruth Bader Ginsburg) amplified this con-cern, warning that the majority’s view could “imperilFirst Amendment academic freedom in public collegesand universities, whose teachers necessarily speak andwrite pursuant to ‘official duties.’”

III. The Progeny of Garcetti v. CeballosEven close observers had some reason to be startled bythe curious turn of events in the Garcetti case. Every fed-eral court of appeals that had recently considered theissue had ruled that speech within a public employee’sofficial duties could claim Pickering protection as a“matter of public concern.” Such was the unanimousview of the Fifth, Sixth, Seventh, Eighth, Tenth, andEleventh Circuits. Even the Fourth Circuit, which seem-ingly implied a contrary view in Urofsky, rejoined thechorus in its two later public employee speech cases.Thus, until the moment Judge O’Scannlain filed his sep-arate opinion in the Garcetti case itself, there was noevidence of any fraying of this crucial consensus.

In a very different sense, however, Garcetti could beviewed as a disaster waiting to happen. From the initiallyeuphoric response to Pickering through the nearly fourdecades that followed, the assumption that job-relatedspeech deserved First Amendment protection was in fact

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29. Mansoor v. Trank, 319 F.3d 133 (4th Cir. 2003);Kariotis v. Glendening, 2000 U.S. App. LEXIS 22506 (4thCir. Sept. 6, 2000) (unpub.) (in vacating the district court’sopinion dismissing a faculty member’s complaint, theappeals court observed that the faculty member’s “vocal andpublic opposition to the college’s announced plan to elimi-nate all full-time faculty and to employ only adjunct facultymembers” might have involved a matter of public concernand his termination therefore might have violated his FirstAmendment rights).

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deemed to be applicable governance standards. When aroutine merit-based salary increase was later deniedhim, he sued the university and the individual senioradministrators in federal court, alleging that the denialwas in retaliation for his critical statements and wasthus an abridgment of his freedom of speech.30

The district judge rejected Hong’s claims on author-ity of Garcetti, asserting that all the contested activitiesor statements fell within his “official duties” sinceunder University of California policies, in the judge’swords, “a faculty member’s official duties are not lim-ited to classroom instruction and professional research.. . . Mr. Hong’s professional responsibilities . . . includea wide range of academic, administrative, and person-nel functions in accordance with UCI’s self governanceprinciple.” To allay any possible uncertainty about thescope of this ruling, the judge concluded that the uni-versity “is entitled to unfettered discretion when itrestricts statements an employee makes on the joband according to his professional responsibilities.”Professor Hong’s case was appealed to, but has not yetbeen argued before, the federal court of appeals for theNinth Circuit.

2. Renken v. Gregory The second case involved a University of Wisconsin–Milwaukee engineering professor named Kevin Renken,who obtained a National Science Foundation (NSF) grantfor a team research project. Renken refused, however, tosign the confirmation letter from the university becauseof differences with his dean over management of thegrant; among other issues, Renken claimed that thecampus administration had breached NSF rules with re-gard to the use of certain funds. The dean then informedRenken that the university had initiated a process toreturn the grant funds. Renken sought the interventionof the board of regents; when a compromise drafted bythe graduate dean proved unavailing, the engineeringdean declared his intent to relinquish the grant.

Renken then sued the dean in federal court, claimingthat the university had reduced his salary and returnedthe NSF grant in retaliation for his criticism of the han-dling of the grant funds. An unreported district courtruling rejected these claims in general reliance onGarcetti, and Renken appealed to the Seventh Circuit.The court of appeals proved no more sympathetic to theprofessor’s free speech claims than had been the Hongcourt; it was enough that “Renken was speaking as afaculty employee, and not as a private citizen, becauseadministering the grant as a [principal investigator] fell 79

frailer than most commentators (and litigators) daredto admit. Pickering’s own speech claimed protection inpart because it had been “greeted . . . with massive apa-thy” in his community; Justice Marshall implied thatthe Court might have been less sympathetic had such acritique come from someone who had “expertise on thesubject at hand” and whose views thus might haveclaimed credence. Moreover, the Pickering Courtobserved that it was not ruling on the question whethera “narrowly drawn grievance procedure” could obligateteachers to submit complaints about the operation ofthe schools to their superiors before taking their com-plaints public. Thus a cautious champion of publicemployees’ job-related speech should have been betterprepared than most were in fact.

In this context, the Garcetti Court’s declaration thatstatements made within the scope of a public employee’sofficial duties could no longer claim First Amendmentprotection seems far less surprising, even if far frominevitable. From the moment the case was grantedreview, academic freedom advocates sensed potentialtrouble, recognizing that the consequences for academicfreedom could be dire if the O’Scannlain dissent appliedequally to outspoken or incautious professors as to thegeneral run of government workers.

Whether in response to such advocates’ pleas or on itsown initiative, the Garcetti Court did recognize poten-tial risks for faculty speech. The majority’s reservationseemed at first to afford substantial protection for aca-demic expression, or at least an assurance that facultyspeech cases would be handled differently in the post-Garcetti era. Such hopes would soon be thwarted, how-ever, by actual experience in three federal district courtsand two courts of appeals. The worst fears of those whoanticipated a new standard for public employee speechwould soon be realized.

A. POST-GARCETTI CASES

Three cases may be briefly summarized as a prelude togeneral observations and suggestions for further analysisand activity.

1. Hong v. Grant Professor Juan Hong, a long-tenured teacher of civil en-gineering at the University of California, Irvine, criticizedseveral administrative practices and decisions within hisprofessional school, specifically with regard to facultyhiring and promotion in certain cases and in generalwith regard to what he viewed as excessive reliance onadjuncts to staff lower-division courses. In one such casehe specifically protested the extension of an appointmentoffer before full faculty approval, a violation of what he 30. 516 F. Supp. 2d 1158 (C.D. Cal. 2007).


within the teaching and service duties that he wasemployed to perform.” Once again a broad concept of“official duties” proved dispositive.31

3. Gorum v. Sessoms The third and most recent case involved a tenured facul-ty member named Wendell Gorum at Delaware StateUniversity. As a participant in the faculty senate’s reviewof candidates for the institution’s presidency, he expressedpublic concerns about one Allen Sessoms, the ultimatelysuccessful applicant for the position. After Sessoms assumedoffice, he and Gorum tangled again, with Gorum rescind-ing an invitation to Sessoms as keynote speaker for theannual dinner of a fraternity for which Gorum was fac-ulty adviser. There were other issues, including Gorum’sadmitted use of his status as department chair to alterand enhance grades for several students without thecourse instructor’s permission, in conceded violation ofuniversity policy. Sessoms soon initiated Gorum’s dis-missal from his tenured faculty position, and his dis-missal was eventually sustained by the university’s gov-erning board. Gorum then took his case to federal court.

As with the two preceding cases, federal judges inDelaware and in the Third Circuit categorically rejectedGorum’s claims of protected faculty speech.32 In lateMarch 2009, a unanimous court of appeals invokedGarcetti as the basis for a preclusive finding that in eachinstance Gorum “did not speak as a citizen” but ratheracted within his “official duties” and thus could notclaim to be speaking on a “matter of public concern” forPickering purposes. The Third Circuit also ruled thatany arguably protected speech was not, in Gorum’s case,“a substantial factor behind Sessoms’s allegedly retalia-tory decision.”

The Gorum court was, however, the first to recognizeand at least consider the Supreme Court’s express reser-vation of academic speech. Noting Justice Kennedy’scaution about blindly applying Garcetti to faculty state-ments and activities, the Third Circuit found no need topursue the issue here, “because Gorum’s actions soclearly were not ‘speech related to scholarship and teach-ing’ and because we believe that such a determinationhere does not ‘imperil First Amendment protection ofacademic freedom in public colleges and universities’”(the latter citing Justice Souter’s dissent).

Following that sentence, a lengthy footnote addressedprecisely this issue, citing Professor Judith Areen’s recent-

ly published Georgetown Law Journal article articulat-ing the governance dimension of academic freedom andsituating academic freedom within the First Amendmentand D.C. Circuit judge Harry Edwards’s concurrence in arecent case upholding restrictions on academic travel toCuba.33 Without invoking any higher education rulingcontrary to its own conclusion, the Third Circuit ven-tured that because “the full implications [of the Garcettireservation] are not clear . . . federal circuit courts differover whether (and, if so, when) to apply Garcetti’s offi-cial-duty test to academic instructors.”

There the legal landscape remains for the moment,awaiting Ninth Circuit oral argument and decision inProfessor Hong’s case and anticipating a host of similarcases that are virtually certain to follow. (Two recentnews stories confirm that prospect: “U. of Iowa StaffMember Sues Law School for Discrimination,” concern-ing the employee’s allegations that she was turned downfor teaching positions because of her conservative politi-cal views, and “Professor Sues University of Tennessee atChattanooga,” in which the professor claims he wasdemoted because he voiced concerns about a femaleprofessor who he said lied about her academic record.34)Hardly a week passes without such reminders of thepotential for continuing litigation over these issues. Inaddition, of course, a significant amount of importantscholarship on these issues is being produced, whichinforms this report and the surrounding discussion.35

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33. Judith Areen, Government as Educator: A NewUnderstanding of First Amendment Protection ofAcademic Freedom and Governance, 97 GEO. L. J. 945(2009); Emergency Coalition to Defend Educ. Travel v.United States Dep’t of the Treasury, 545 F.3d 4 (D.C. Cir.2008).

34. Katherine Mangan, “U. of Iowa Staff Member SuesLaw School for Discrimination,” Chronicle of HigherEducation, January 22, 2009 (available at http://chronicle.com/news/article/5852/university-of-iowa-staff-member-sues-law-school-for-discrimination [accessed May 12, 2009]);Joan Garrett, “Professor Sues University of Tennessee atChattanooga,” Chattanooga Times Free Press, January 22,2009 (available at http://www.timesfreepress.com/news/2009/jan/22/professor-sues-university-tennessee-chattanooga/[accessed May 19, 2009]).

35. See, for example, Symposium on Public Citizens,Public Servants: Free Speech in the Post-GarcettiWorkplace, hosted by the First Amendment Law Review atthe University of North Carolina School of Law (7 FIRSTAMEND. L. REV. 1-144 [Fall 2008]); Paul Horwitz,Universities as First Amendment Institutions: Some Easy

31. 541 F.3d 769 (7th Cir. 2008). 32. 2008 U.S. Dist. LEXIS 10366 (D. Del. Feb. 12, 2008);

561 F.3d 179 (3d Cir. 2009).

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trict judge in the Hong case seized upon that perversecorrelation in citing the scope of shared governanceacross the UC system as prelude for proclaiming theadministration’s “unfettered discretion [in restricting]statements an employee makes on the job and accord-ing to his professional responsibilities.” In brief, as thecases stand now, one could argue that the less of a stakefaculty members have in their institution’s shared gov-ernance, the freer they are (as a First Amendment mat-ter) to criticize how it is governed, and vice versa.

Fourth, a narrow reading of the Kennedy and Souterreservations, even by sympathetic courts, is both possibleand potentially troubling. The specific concern of theGarcetti majority was for “speech related to scholarshipand teaching”—a phrase that may not seem as readilyapplicable to extramural faculty expression and activityas to core professorial pursuits. While certain of bothHong’s and Renken’s statements undeniably related to“scholarship and teaching,” the failure of either courteven to recognize the reservation—much less applyclose analysis—leaves the matter indeterminate. InGorum, the one case that did acknowledge and addressthe issue, that nexus may have been least clear. Yet inall such cases, a proper recognition of the import of aprofessor’s special role in university governance shouldtrigger a substantially broader and more protective viewof such expressive activity.

Moreover, even apart from the integral connectionbetween academic freedom and faculty involvement ininstitutional governance (as explicated in theAssociation’s 1994 statement On the Relationship ofFaculty Governance to Academic Freedom), criti-cisms made in a faculty member’s capacity as a mem-ber of an academic community can themselves be“related to scholarship and teaching,” though the post-Garcetti decisions have not yet recognized this relation-ship. Witness, for example, Professor Hong’s criticism ofthe university’s excessive reliance on adjuncts, whichcan easily be understood as expressing a concern thathis department’s scholarship and teaching might sufferif the number of faculty on the tenure track were todecline drastically in favor of contingent faculty, whomight be unable to immerse themselves in scholarlywork due to fear of job loss, lack of grant support, or thesimple logistics of commuting from one campus toanother. Similarly, Professor Renken’s criticisms of thehandling of his grant funds are indubitably “related” tohis “scholarship,” even if they do not precisely consti-tute the type of speech that the Supreme Court mayhave envisioned in crafting that formulation.

Fifth, the failure of the early cases to recognize apotentially serious academic freedom problem is deeply 81

B. OBSERVATIONS AND IMPLICATIONS

Several potentially helpful observations emerge from thisreview of the early post-Garcetti cases. First, the neglectfor or disregard of Justice Kennedy’s clear reservation of(and Justice Souter’s more urgent warning about) theacademic-expression issue is alarming. Of the five courts(in three cases) that have thus far addressed this issue,only the Third Circuit in Gorum evinced any recogni-tion that the highest court had stressed obvious differ-ences between academic and nonacademic speech casesfor Pickering and “official duties” purposes.

Second, in a closely related vein, such oversight mightbe attributed in some measure to the regrettable failureof the academic community to press the issue; groupsthat did raise the flag in Garcetti at the Supreme Courtlevel and in Hong’s appeal were apparently blindsided byboth levels of adjudication in Renken and in Gorumand by the first level of review in Hong. Usually an earlywarning system affords clearer signals and, especially ona matter of such obvious import, the affected academiccommunity is able to press its interests in timely fashion.

Third, the post-Garcetti faculty rulings reveal a sin-gular pair of ironies. On one hand, so broad a definitionof “official duties” (resulting in denial of constitutionalsolicitude for related speech) poses a significant threatthat only professorial statements of minimal benefit tosociety will now be able to claim protection becauseonly those statements fall far enough beyond the speak-er’s expertise to avoid the “official duties” stigma. Theother irony may be even more acute, if equally unantic-ipated: what has emerged from these rulings is a nega-tive or inverse correlation between the scope of a profes-sor’s (or a faculty’s) role in shared governance and thebreadth of potential protection for expressive activity.Those institutions (like the University of California) thataccord their professors the deepest stake in shaping themission and guiding the course of the university arenow most clearly empowered to sanction unwelcomefaculty speech, quite simply because its professors enjoythe widest range of participatory roles. Indeed, the dis-

Answers and Hard Questions (54 UCLA L. REV. 1497[2007]); Leonard Niehoff, Peculiar Marketplace: ApplyingGarcetti v. Ceballos in the Public Higher EducationContext (35 J.C.U.L. 75 [2008]); Lawrence Rosenthal, TheEmerging First Amendment Law of ManagerialPrerogative (Chapman University Legal Studies ResearchPaper Series, Paper No. 08-303 [2008]); and MatthewFinkin and Robert Post, For the Common Good: Principlesof American Academic Freedom (New Haven, Conn.: YaleUniversity Press, 2009).


troubling. Even the Gorum appeals court, which citednot only Justice Kennedy’s reservation but Justice Souter’swarning, failed to recognize that some of the allegedtransgressions might well have invoked broader academ-ic freedom protections even though they arguably fellbeyond matters of “scholarship or teaching.” Suchrecognition would not likely have shaped the outcome,since the court was convinced that dismissal was war-ranted by nonexpressive activity, but even in dictum anacademic freedom concern would have been welcome.

Sixth, and in some ways most alarming, the earlycases reflect a distressingly inadequate judicial apprecia-tion of faculty governance, even beyond the irony notedearlier. To oversimplify only slightly, the logic of the Hongand Renken rulings goes thus: since senior universityfaculty have a governance role in virtually all majorcampus issues, any statements not clearly unrelated tosuch issues—that is, any that are not entirely beyondthe scope of recognized faculty interest—are deemed“job related” or “within official duties” and for that rea-son are denied First Amendment protection. There is, infact, much valuable precedent that could be (but hasnot yet been) brought to bear—most notably, theSupreme Court’s recognition in the 1981 Yeshiva case ofthe inexact fit between the realities of a university pro-fessor’s role and responsibilities and the traditionallabor-management concept of an “employee” vis-à-visa “manager.”36 In another context, the Supreme Courtrecognized that a state employee may be an “officer”who acts in an essentially private capacity: in PolkCounty v. Dodson, the Court held that public defend-ers, while paid by the state, do not act—and cannot beseen as acting—for the state.37 As the Court observedabout a public defender, “an indispensable element ofthe effective performance of his responsibilities is theability to act independently of the Government.”38 Whileneither the attorney-client relationship nor the mana-gerial designation is clearly a perfect analogy—notleast because the Supreme Court’s difficulty with con-ceptualizing higher education in the traditionalmanager-employee framework led it, in Yeshiva, to cate-gorize faculty members improperly as managers ratherthan as a separate category of “professionals”—theSupreme Court’s willingness in these cases to recognizeemployment models different from the strict master-servant framework that characterized Garcetti high-

lights the inadequacy of the analysis both in Garcettiitself and in the early post-Garcetti cases.

The thread that runs through the logic of thePickering-Connick-Garcetti line is that a publicemployer qua employer has interests in controlling thespeech and actions of its subordinates that it does nothave when regulating the speech of the citizenry atlarge: its concern for disharmony, disruption, and, espe-cially in Garcetti, insubordination—that is, its criticalneed to maintain managerial control—place the subor-dinate’s speech in conducting his or her duties outsidethe sphere of “free” speech. This, the fundamentalassumption upon which this body of law rests, has scantpurchase when it comes to faculty speech in or concern-ing institutional government. Institutional rules or poli-cies providing for faculty participation do not delegateauthority to subordinates in a hierarchy; they recognizethe faculty as a body of cognate authority whose individ-ual and collective counsel should be sought, even whoseapproval must be secured in some matters before institu-tional policies may be adopted or actions taken. The U.S.Supreme Court’s inability to understand how that is,how a faculty cannot be considered to be a subordinatebody in a managerial hierarchy even as it exerciseseffective authority, is evidenced in the Yeshiva decision:a manager may be dismissed for publicly criticizingher superior; a faculty member may not be dismissedfor publicly criticizing her dean. It would be inconceiv-able for a corporate subordinate to challenge a superi-or’s authority to override the subordinate’s decisionwithout facing the prospect of sanction. It is not incon-ceivable for a faculty to challenge the right of theadministration or of a governing board to disregard thefaculty’s judgment.39

District Attorney Connick could sanction AssistantDistrict Attorney Meyers for having surveyed her co-workers about their dissatisfaction with his administra-tion, for fomenting a “mini-insurrection.”40 As the U.S.Supreme Court saw it, Connick’s need to maintain disci-pline trumped Meyers’s effort to criticize his manage-ment. When President Parley Paul Womer dismissedProfessor J. E. Kirkpatrick from Washburn College in

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39. See, for example, Searle v. Regents of the Universityof California, 23 Cal. App. 3d 455, 100 Cal. Rptr. 194(1972). What is notable about the lawsuit, which wasbrought to protect the faculty’s prerogative in decidingwhether credit may be granted for a certain course ofinstruction, is that it was brought at all.

40. Connick v. Myers, 461 U.S. 138 (1983) (discussedbriefly in Section II.C).

36. NLRB v. Yeshiva University, 444 U.S. 672 (1980).37. 454 U.S. 312 (1981). 38. Id. at 319 n.8 (quoting Ferri v. Ackerman, 444 U.S.

193, 204 [1979]).

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(NIH) notified Stanford University of plans for a majorgrant to study an artificial heart device. The notice cau-tioned, however, that the grant might contain a confi-dentiality clause, requiring researchers to obtain NIHapproval before publishing or otherwise publicly dis-cussing or disseminating preliminary results of theirresearch. On behalf of its faculty who were the intendedprincipal investigators, Stanford formally objected tosuch a stipulation. When the NIH refused to modify theprospective constraint, and eventually withdrew thegrant altogether, Stanford filed suit in federal districtcourt. Predictably, federal lawyers insisted such a condi-tion was squarely in line with Rust.

Judge Harold Greene sharply disagreed and struckdown the proposed clearance procedure as a priorrestraint violative of the First Amendment.44 His rulingtook specific note of Rust’s reservation as well as itsbasic ruling; the type of expression that the NIH soughtto limit was, in his view, “the very free expression thatthe Rust Court held to be so important to the function-ing of American society.” Noting that the restrictivestandards in the proposed grant language were “imper-missibly vague,” Judge Greene declared that any suchconstraint would have a “chilling effect” upon scholarsat a “premier academic institution, engaged in signifi-cant scientific and medical research for the benefit ofthe American people . . . [and which may not be] com-pelled under the law to surrender its free speech rightsand those of its scientific researchers.” Lest anyone failto get the message, Judge Greene stressed in a conclud-ing paragraph his deep distaste for official edicts that“subject to government censorship the publications ofinstitutions of higher learning and others engaged inlegitimate research.”

The nearly two decades since Rust have seen remark-ably little litigation directly addressing the same issue.The “follow the money” view of federal appropriationshas occasionally been sustained elsewhere, at least once(in a case involving content restrictions on grants bythe National Endowment for the Arts to individualartists) with implications for the academic world.45 Yeton the whole Judge Greene’s view seems to have pre-vailed more by default than by design. The entire saga,especially the felicitous resolution of the Stanford casein the early 1990s, suggests that academic interestsfared better in an earlier and closely analogousencounter than has been the post-Garcetti experience.

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1919 for “agitation”—specifically, for “disturbing thepeace of the college” by his efforts to secure for the fac-ulty an advisory role in the college’s governance—Womer’s decision was condemned by the Association asno less serious than an “unwarranted restriction onfreedom of teaching.”41 As another ad hoc committee ofinvestigation put it in just such a case eight years later,

It is impossible, and rightly so, to suppress criticaldiscussion by members of a faculty, of general orspecial educational policies, unless that end isaccomplished by the simple and drastic means ofdismissing that faculty. The attempt to abolishsuch discussion . . . is not only a deplorableanachronism, but tends to destroy the valueswhich can be created only by patient and toleranteffort, by free and open discussion, and by thegradual increase of a common stock of wisdom,which is incapable of monopolization by anyadministrative officer.42

The judiciary’s future engagement with the Court’sreservation in Garcetti, withholding judgment on theapplication of the “official duty” exemption to the pro-fessoriate, has need for a deep understanding of thesedifferences.

Finally, the post-Garcetti experience recalls an earlierand strikingly comparable experience in which academ-ic interests fared far better. In 1991, the Supreme Court’sruling in Rust v. Sullivan sustained federal regulationsthat forbade a federally funded health clinic from coun-seling abortion and indeed required clinic staff to advo-cate alternatives.43 Basically the Court concluded that ifCongress did not wish its appropriations to be spent in acontrary fashion, it could so stipulate. Yet Chief JusticeWilliam Rehnquist recognized the potential import ofsuch a ruling for academic health centers and addedthis protective caution: “[W]e have recognized that theuniversity is a traditional sphere of free expression sofundamental to the functioning of our society that theGovernment’s ability to control speech within thatsphere by means of conditions attached to the expendi-ture of government funds is restricted by the vaguenessand overbreadth doctrines of the First Amendment.”

The potential reach both of Rust and its reservationwould soon be tested. The National Institutes of Health

44. Stanford v. Sullivan, 773 F. Supp. 472 (D.D.C. 1991). 45. Nat’l Endowment for the Arts v. Finley, 524 U.S.

569 (1998).

41. “Report of the Committee of Inquiry on Conditionsin Washburn College,” AAUP Bulletin 7 ( January–February1921): 66.

42. “Report on the University of Louisville,” AAUP Bulletin13 (October 1927): 451–52.

43. 500 U.S. 173 (1991).


The striking success of substantive academic freedomclaims in the Stanford case invites brief consideration ofan analogously happier experience on the proceduralside. In the general run of public employee speech cases,a prima facie Pickering claim that involves several pos-sible grounds for adverse action imposes on the govern-ment employer a burden of proving that sanctions wouldhave occurred even absent the expressive activity—or,alternatively, that one of Pickering’s exceptions (forexample, taking excessive time away from the job, by-passing a grievance channel, disrupting the morale orefficiency of the agency, or undermining the confidenceof its clientele) independently supported the sanction. Theutility of this doctrine, shaped by the Supreme Court’sMt. Healthy case and consistently applied for a quartercentury, should be apparent here.

If a university professor takes to court a plausibleclaim that adverse action occurred in retaliation for pro-tected expression, the institution should bear the burdenof establishing that clearly unprotected activity triggeredthe sanction. In Gorum’s case, the admitted unautho-rized changing of students’ grades might serve that pur-pose. Yet in Hong’s and Renken’s cases, absent anyseemingly unprotected expression, meeting that burdenwould have been far more difficult. Merely noting thatsuch expression arguably relates to a professor’s “officialduties” as a participant in university governance shouldnot suffice.

C. A CLOSING NOTE ABOUT ACADEMIC FREEDOM

We conclude this section by returning to a matter raisedin Section I but worth reiterating more fully here. Wehave focused almost exclusively on faculty members atpublic institutions, because, as explained early in the re-port, it is only at public institutions that the Constitutionaffords protection to academic freedom (or potentiallycauses that protection to recede). At no time have facultymembers at private colleges and universities been bene-ficiaries of the development in First Amendment protec-tion of academic freedom. It has always been the case atthose institutions that faculty have had to turn to thepersuasive merits of the 1915 Declaration and subse-quent policies, rather than to the U.S. Constitution, whenseeking means of securing conditions of academic free-dom within their institutions.

Indeed, when professional notions of academic free-dom began to be advanced in the beginning of the lastcentury, not only were those notions not within the law,they were explicitly outside and even against the law.The 1915 Declaration was effectively a statement of rea-sons for philanthropists, trustees, alumni, legislators,and ordinary citizens and taxpayers to forego exercising

their legal (and fiscal) power to control faculty speechand, instead, by enacting self-denying ordinances, toenable their schools to become genuine universities.There is thus a historical understanding that institution-al distinction arises in part from a university’s foreswear-ing the power that it might be legally permitted to exer-cise over its faculty. In light of Garcetti and its progeny,it is more urgent than ever that it be clear that the casefor academic freedom is not now written, nor was it everwritten, merely on legal litmus paper but in the historyof the profession that recognizes universities that deserveto bear the name.

As Robert Carr said half a century ago, “[W]hat thecourts give, they may take away, and that having thusgiven and taken away, academic freedom may be left ina weaker position than it was before it became a concernof the law.”46 Whether academic freedom is in a weakerposition in the legal firmament, universities that areworthy of the name, and the faculties by which they areconstituted, may—indeed, must—recognize that theunstinting protection of academic freedom is not a fac-ulty perquisite but a prerequisite for the university’s con-tinued status among the great institutions.

IV. The Response: What’s Next?In the complex legal framework described above, wenow ask how the academic community might best pre-serve and protect academic freedom, particularly inregard to faculty speech about institutional matters. Weexplore that question by offering suggestions for nation-al faculty organizations, for local or regional facultygroups such as campus senates or AAUP chapters andconferences, and for institutional administrators andgoverning boards. In outlining next steps, we take asfoundational two points: first, that several statements bythe AAUP, including the classic statement in collabora-tion with the American Council on Education and theAssociation of Governing Boards, have stressed the vitalimportance of meaningful faculty participation in allareas of institutional governance, to the benefit of col-leges and universities and of society; and second, thatthe best definition of and protection for academic free-dom lie in the principles and language set forth by theAAUP and in the best policies and practices of institu-tions of higher education. As the University ofWisconsin observed in 1994, drawing upon a report ofthe university issued one hundred years earlier in a

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8446. Robert Carr, “Academic Freedom, the American

Association of University Professors, and the United StatesSupreme Court,” AAUP Bulletin 45 (Spring 1959): 20. Carrwas general secretary of the AAUP from 1957 to 1958.

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Civil Liberties Union that maintain a “watchdog”presence in state capitals, could be helpful in thisregard.

4. Undertake an empirical national analysis of hand-book language on academic freedom in governanceand institutional matters at various types of institu-tions and disseminate the results widely to facultyorganizations. Disseminate examples of language tobe emulated as well as examples that fail sufficientlyto protect academic freedom in institutional mat-ters.

5. Collaborate with organizations of institutions andtrustees such as the American Council on Educationand the Association of Governing Boards onissuance of a joint statement on the value of facultymembers’ academic freedom and academic respon-sibilities in governance and in institutional matters,highlighting examples of handbook language thatall parties can endorse.

6. Undertake to persuade public university governingboards, senior administrators, and attorneys of thepotential risks of invoking the Hong-Renken-Gorum doctrine while reminding those groups thatpre-Garcetti public employee speech concepts haveadequately protected the institution’s vital interestswhile also safeguarding academic freedom and freeexpression.

7. Consider providing governance workshops and othersorts of activities at the national and regional levelto educate faculty leaders and members about theissues that confront faculty in institutional gover-nance and in speech about institutional matters.

B. FACULTY SENATES AND OTHER CAMPUS-BASED FACULTY GROUPS

At the individual campus, institution, or system level,the options and imperatives may be quite different,depending on whether faculty are represented by a bar-gaining agent, in which case the bargaining agentmight take primary responsibility for negotiating pro-tective language. In addition, since state law recognizesand enforces handbook language to varying degrees,faculty groups should be aware of the applicable legalprovisions and should seek language that would bemaximally enforceable under those provisions. (TheAAUP offers a state-by-state guide to the enforceability ofhandbooks as contracts that may be of assistance in thisregard.) Nevertheless, the following steps should be seri-ously considered in any context:1. Carefully assess the adequacy and coverage of exist-

ing institutional policies that affect faculty speech orexpressive activity. Local faculty groups should workwith the national office of the AAUP and may solicit 85

seminal board of regents decision on faculty academicfreedom, “We call upon all members of our several aca-demic communities—administrators, faculty, staff, andstudents alike—to guard this precious legacy, to consid-er differing points of view, and always to engage in ‘thatcontinual and fearless sifting and winnowing by whichalone the truth can be found.’”47

A. THE AAUP AND OTHER NATIONAL FACULTY AND HIGHER

EDUCATION ORGANIZATIONS

National faculty groups and other academic freedomadvocates should seriously consider framing a moreaggressive response to the Garcetti-Hong doctrine andits implications for full faculty participation in institu-tional governance and for faculty speech in other con-texts. To protect and support faculty members’ openexpression of ideas and fulfillment of governance res-ponsibilities, national organizations could pursue thefollowing steps:1. Develop and widely disseminate examples of policy

statements that could be adopted at the institutionallevel explicitly to protect faculty members’ speech inregard to institutional matters. (Examples of suchstatements, including a policy recently adopted atthe University of Minnesota, appear at the end ofthis report.) As the AAUP disseminates such lan-guage, it should work with other national facultyorganizations to issue a joint statement on the valueof faculty members’ academic freedom and academ-ic responsibilities in governance and in institutionalmatters, highlighting exemplary handbook language.

2. Consider preparing and filing amicus curiae briefsin addition to assisting faculty members in academ-ic freedom cases relating to speech about institu-tional matters; where resources allow, this couldeven include intervention at the trial court level,especially in federal courts, wherever such participa-tion is permissible and might avert a harmful first-level ruling.

3. Monitor more rigorously the emergence of futurecases involving similar issues, in hopes of avoidingthe blindsiding that may have allowed the Hong-Renken-Gorum doctrine to emerge so largelyunchallenged. Contact with local campus chaptersand state conferences of the AAUP and other organi-zations, and alerts to other groups like the American

47. “University of Wisconsin Board of Regents Resolution6787,” quoted in Academic Freedom on Trial: 100 Yearsof Sifting and Winnowing at the University ofWisconsin–Madison, ed. W. Lee Hansen (Chicago:University of Chicago Press, 1998).


assistance in making those assessments. Such insti-tutional policies may exist in faculty handbooks, inpolicies or regulations adopted by the governingboard, in collective bargaining agreements, andoccasionally in state laws or regulations definingfaculty rights and responsibilities. In an era whereconstitutional protection for academic freedom andfree speech is in flux, and given the lack of suchconstitutional protection for faculty at private col-leges and universities (as well as in for-profit institu-tions of higher education), enshrining protection foracademic freedom in an institution’s own docu-ments may be the single most important task for fac-ulty members to undertake. To be suitable for thispurpose, such a policy should (a) expressly protectfaculty participation in institutional governance as adimension of academic freedom, and (b) clarify thatfaculty speech including but not limited to class-room teaching and research and extramural utter-ances merits both constitutional and institutionalprotection, but (c) need not and probably should notexpressly use the language of “matters of public con-cern” lest general First Amendment standards thatapply to public employee speech inappropriately beapplied to speech that should be protected by aca-demic freedom.

2. If such policies seem inadequate, or simply do notaddress the issue at all, faculty groups, whether sen-ates or unions, should create special committees toexamine available alternatives, adapt such policiesto institutional needs and values, and seek approvalfrom as broad a range of faculty and faculty groupsas possible within individual institutions or, if appli-cable, across multicampus systems. When appropri-ate language has been developed, every effort shouldbe made by faculty groups to negotiate with and per-suade the administration and the governing board ofthe wisdom of adopting such language. (Indeed,where appropriate and productive, early involvementof senior academic administrators and universityattorneys in a shared task may be both logical anddesirable.) Such local faculty bodies should draw onthe experience and expertise of colleagues in theirstates and regions, as well as the national office ofthe AAUP, which may be able to share additionalexamples of desirable policy language.

3. In the case of faculties represented by a collective bar-gaining agent, such policies should be developed withan eye toward their incorporation in the next negotiat-ed agreement between faculty and governing boards.

4. Where existing institutional policy either meets therecognized needs or could be so adapted with minor

revision, efforts should be made to enhance aware-ness of that policy across the faculty as well as withinthe administration and the governing board.Enforceability of such existing safeguards shouldalso be explored and verified, however protective thepolicy provisions may appear. Every effort should bemade to ensure that such protective language hasthe force of contractual law.

5. Whatever action results from such inquiry at thecampus or system level should be brought to theattention of the AAUP and other relevant nationalfaculty groups. Several members of the Big Ten, forexample, have begun developing potential policylanguage and have contacted the AAUP about theirexperiences. From institutions within regional con-ferences or consortia (for example, the Midwest’sCommittee on Institutional Cooperation), such expe-rience should be promptly shared with faculties atpeer institutions—especially within federal judicialcircuits (for example, the Third and Seventh) wherethe issue has already been litigated with adverseresults.

6. Efforts should be made to disseminate to the newsmedia—from faculty representatives directly or,where appropriate or useful, through the university’scommunications office—accounts of such facultyinitiative and self-regulatory activity, especiallywhere governing board approval eventually validatesthe process and increases the protections accorded byinstitutional policy.

7. In the event of litigation of such issues that may sub-stantially affect academic freedom and free expres-sion, faculties should be prepared to provide supportto affected colleagues in at least moral if not materi-al form. Specifically, faculty at other institutions mayconsider offering their own policies for the potentialguidance of courts, as well as seeking broader publicunderstanding and urging acceptance of such poli-cies in legislative and other forums. The academy asa whole benefits when specific faculty members’ aca-demic freedom to participate in institutional mattersis legally recognized and affirmed.

C. SENIOR ACADEMIC ADMINISTRATORS AND GOVERNING BOARDS

In parallel with the two foregoing tasks, faculty groupsat every level should seek to work with and educate sen-ior administrators and governing boards about sharedgovernance.1. The national office of the AAUP and other national

faculty organizations should develop materials onshared governance that can be distributed to senioracademic administrators and board members. At the

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thus be potentially liable for faculty transgres-sions (verbal or physical) otherwise likely to bedismissed (and potential liability thus avoided)as outside the scope of the faculty member’sappointment by the university. Such risks couldextend to compliance with conditions on govern-ment and other research grants, to cite but one ofmany collateral contexts.

D. PROPOSED POLICY LANGUAGE FOR INCORPORATION IN

FACULTY HANDBOOKS AND AGREEMENTS

In our opinion, the policy adopted by the Board ofRegents of the University of Minnesota in June 2009, aswell as the two policy drafts we offer here, is designed toclarify that academic freedom protects faculty speechabout institutional academic matters and governanceas well as teaching, research, and extramural state-ments. This policy and those we propose differ inapproach to a different question, no less important butnot within the committee’s immediate purview, of howthe obligations that attach to the exercise of academicfreedom are dealt with. The profession has long under-stood that academic freedom is not to be equated withfreedom of speech. Speech in the classroom, speech as acitizen of the institution, and speech as a concernedmember of the larger community are subject to limits,the specific nature of which may differ according to thecapacity in which one is speaking; classroom utterance,for example, is held to a standard of professional care,while political speech is not similarly cabined.

The University of Minnesota’s policy affirms academ-ic freedom with some reference to limits but wouldleave the bulk of that question open for treatment else-where, perhaps by institutional regulation or casedetermination—whence the committee’s two alterna-tives, offered to acknowledge permissible limits as partof the policy. These differ on the degree of direction ageneral statement of policy might give; that is, whetherit is enough to advert broadly to professional ethics orwhether the focus of attention should be sharpened. Inany event, none of these is meant to preclude localdrafting efforts but only to demonstrate how the solu-tion to the Garcetti problem lies in the hands of facultyand institutional governing bodies.1. Academic Freedom and Academic Responsibility sec-

tions of the Academic Freedom and Responsibilitypolicy of the University of Minnesota, as amended bythe board of regents on June 12, 2009:

Academic freedom is the freedom to discussall relevant matters in the classroom, toexplore all avenues of scholarship, research,and creative expression, and to speak or 87

local level, faculty groups should consider providingthese materials to new administrators and to candi-dates for senior administrative positions, and theyshould follow up with meetings and discussionsabout the materials with senior administrators and,where possible, board members.

2. At the national and regional levels, the AAUP andother faculty organizations should consider provid-ing governance workshops and other sorts of educa-tional and orientation activities to educate senioradministrators and board members about thevalue(s) and mechanisms of shared governance andof faculty members’ independent voice in institu-tional matters. Such training could be conducted inconcert with orientation and training experiencesthat are provided by associations such as the AmericanCouncil on Education and the Association ofGoverning Boards.

3. In addition, faculty groups should seek to educatesenior administrators and governing boards aboutthe problems and risks embedded in the Hong-Renken-Gorum doctrine—problems and risks thatmay substantially outweigh the apparent orassumed short-term benefits in a particular case.Several explanations could be advanced:a. Faculty involvement in institutional decision

making helps ensure campuswide “buy-in,” withrespect to both the decision-making process andthe decision itself. Decisions reached without fac-ulty input may be insufficiently attentive to coreacademic values, may not reflect the realities oncampus, or may simply be difficult to execute.Moreover, once a decision is made and its imple-mentation begun, ongoing faculty involvementand cooperation are essential. Without the free-dom to engage deeply in that decision-makingand implementation process—including thefreedom to voice disagreement over the directionof a policy or the method of execution—theentire academic community will be ill-served.The explicit protection of academic freedom,including freedom of involvement in institutionalgovernance, is therefore critical to ensuring thesuccess of institutional initiatives.

b. Legal and policy considerations may cautionagainst institutional reliance on or invocation ofthe Hong-Renken-Gorum doctrine. For example,a university that insists in litigation that it hasthe “unfettered discretion” to regulate or controlall faculty speech within the scope of broadlydefined “official duties” inescapably implies itsobligation to exercise that authority and would


write without institutional discipline orrestraint on matters of public concern as wellas on matters related to professional dutiesand the functioning of the University.Academic responsibility implies the faithfulperformance of professional duties and obli-gations, the recognition of the demands ofthe scholarly enterprise, and the candor tomake it clear that when one is speaking onmatters of public interest, one is not speakingfor the institution.

2. Subcommittee proposal option 1:Academic freedom is the freedom to teach,both in and outside the classroom, to con-duct research and to publish the results ofthose investigations, and to address any mat-ter of institutional policy or action whether ornot as a member of an agency of institution-al governance. Professors should also havethe freedom to address the larger communitywith regard to any matter of social, political,economic, or other interest, without institu-tional discipline or restraint, save in responseto fundamental violations of professionalethics or statements that suggest disciplinaryincompetence.

3. Subcommittee proposal option 2:Academic freedom is the freedom to teach,both in and outside the classroom, to con-duct research and to publish the results ofthose investigations, and to address any mat-ter of institutional policy or action whether ornot as a member of an agency of institution-al governance. Professors should also havethe freedom to speak to any matter of social,political, economic, or other interest to thelarger community, subject to the academicstandard of conduct applicable to each.

V. ConclusionAlthough the catalyst for this report was a brace of unex-pected and potentially ominous court rulings, the scopeof the subcommittee’s response has been far broader.Our immediate concern about judicial threats to theacademic freedom of outspoken professors invited con-sideration of the foundations of such freedom, both inpolicy and in constitutional law. We have expressed deepconcern about the recent disregard by lower federalcourts of the Supreme Court’s insistence upon specialdeference to speech within the academic setting. Thusour report revisits in some detail the complex relation-ship between principles of academic freedom and legal

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safeguards for the exercise of that freedom by universityprofessors. We have also reviewed the evolution of legalprotection for the speech of public employees, with spe-cial attention to those who teach at publicly supportedcolleges and universities.

The analysis of these issues has led us to offer a seriesof specific recommendations by which we hope the aca-demic community may reduce the legal threats thatenergized this subcommittee and prevent or at least re-duce the risk of their recurrence. We have directed ourrecommendations to several levels of the academiccommunity—not surprisingly, starting with nationalfaculty organizations such as the AAUP, as well as facultysenates and other campus-based professorial bodies. Lessobvious, but in our view no less important, is an appealto senior university administrators and governing boardsto adopt similar cautions—not only in the interests oftheir faculty colleagues, but quite as much for evenbroader institutional welfare. We have offered severalspecific options to guide those who share our concernand seek to respond by adopting a responsive policy.The AAUP is willing to work with institutions and theirfaculties in implementing the subcommittee’s recom-mendations; we encourage faculties and administrationsto seek such assistance and to collaborate in institutingpolicies and practices that will ultimately benefit theentire academic enterprise. ■

ROBERT M. O’NEIL (Law), University of Virginia, chair

JUDITH C. AREEN (Law), Georgetown University

MATTHEW W. FINKIN (Law), University of Illinois atUrbana-Champaign

LARRY G. GERBER (History), Auburn University

WILLIAM W. VAN ALSTYNE (Law), College of Williamand Mary

CARY NELSON (English), University of Illinois atUrbana-Champaign, ex officio

The Subcommittee

academic freedom after garcetti v. ceballosimical to the employer’s economic interests—speech...

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