A Gag on Public Faculty?

Many people associate tenure with being the ultimate protection of freedom of expression for faculty members. But professors at public colleges -- arguably even those without tenure -- may have a more powerful protection: the First Amendment. Courts have interpreted the First Amendment to offer broad protections to public employees -- especially with regard to what employees of public colleges say and write.

A case before the U.S. Supreme Court, however, could limit those rights -- even though the case has nothing to do with higher education.

The case involves a dispute over statements made by Richard Ceballos, a deputy district attorney in Los Angeles. Ceballos was demoted and transferred after he told his supervisors that he believed a deputy sheriff had made false statements in seeking a warrant. Ceballos then sued and as his suit has gone through the judicial process, it has taken on much broader issues than whether Ceballos was treated unfairly. Some of the issues concern the immunity of state and local governments from being sued.

But one issue central to the Ceballos case is whether public employees have the right to speak out on matters of public concern. The U.S. Court of Appeals for the Ninth Circuit ruled that they have such a right. But when the Supreme Court agreed last year to hear the case, academic groups grew worried that the justices could reverse the Ninth Circuit's decision in a way that could seriously hurt public college faculty members.

Of particular concern to faculty members is that the statements Ceballos made that apparently angered his superiors related directly to his work. If Ceballos loses in the Supreme Court, some fear, public college faculty members could lose protection to take controversial stands about their areas of scholarly expertise.

"The most valuable contributions that most university scholars and teachers make to public debate and understanding typically derive from their academic disciplines or fields of expertise," says a brief recently filed with the U.S. Supreme Court by the American Association of University Professors and the Thomas Jefferson Center for the Protection of the First Amendment. "Thus, any suggestion that 'matters of public concern' many not encompass job-related expression of professors would undermine the special protections the Court has given academic freedom for the past 50 years."

The brief says that backing the Los Angeles district attorney's office would thus create a "perverse irony" for public college faculty members: "Constitutional protection for a professor's speech would now extend only to those public statements on which the speaker was least well informed, while denying such protection to statements reflecting the speaker's academic expertise (and thus his or her responsibilities as a public employee). Such a result seems not only unimaginable in practical terms, but totally at variance with everything this Court has said about academic freedom."

The AAUP brief notes that the principle of First Amendment protection for faculty members has been central to a number of legal victories for professors whose statements offended their bosses or local politicians. Any "retreat" from such protection, the brief says, "could be truly frightening not only for the academic freedom of outspoken professors, but equally for students and for the larger society that now benefits from the First Amendment protections that scholars enjoy to speak publicly within their areas of expertise."

The arguments put forth against the Ninth Circuit's decision don't focus on public colleges or academic freedom, so it is hard to figure out how much these issues will affect the case. All that is certain is that there was enough support on the Supreme Court to review the case.

Donna Euben, counsel of the AAUP, said that while the association hopes that the Supreme Court affirms the Ninth Circuit's ruling, it was important to set these issues before the justices on the chance that they rule the other way. In such a circumstance, she said, the AAUP would hope that the Supreme Court would make "a narrow ruling," based on "the specific facts and circumstances of this particular case," rather than the sort of broad ruling that could undermine academic freedom.