Nov. 2, 2005

Academic Freedom vs. First Amendment

The University of Colorado did not violate the First Amendment rights of a medical school professor by stripping his department chairmanship because he openly opposed a plan to move the school, a federal appeals court ruled on Tuesday. Experts on higher education law said they believed the court’s decision could narrow the academic freedom protections for public college employees — especially professors who also hold administrative jobs.

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The decision by a three-judge panel of the U.S. Court of Appeals for the 10th Circuit came in a case involving Robert W. Schrier, a professor of medicine at Colorado’s Health Sciences Center and the longtime chairman of the department of medicine, the largest at the university’s medical school.

In the mid-1990s, the university considered a plan to move the health sciences campus from its downtown Denver location to the site of a former Army medical center in Aurora, a Denver suburb. Schrier thought the move was unsound fiscally and administratively and, according to the court record, expressed his opposition to the idea so vigorously and loudly.

In 2002, with the approval of the chancellor of the Health Sciences Center, the medical school’s dean, Richard D. Krugman, removed Schrier from his chairmanship, though he retained his tenured professorship and full salary.

Schrier sued, charging that the university had deprived him of his First Amendment rights and breached his employment contract by removing him in retaliation for publicly speaking out about the proposed move. He asked for a preliminary injunction that would restore him to the chairmanship.

A federal magistrate judge sided with the university, and Schrier appealed.

The case caught the attention of supporters of academic freedom — including the American Association of University Professors, which filed a friend of the court brief — because the lower court judge, in ruling against Schrier, rejected his argument that academic freedom is afforded “special constitutional significance” that give academic employees protections separate and apart from the standard ones available through the First Amendment.

In its ruling Tuesday, the 10th Circuit panel upheld the lower court judge’s overall conclusion that the university did not violate Schrier’s rights by stripping him of his chairmanship. While Schrier’s comments dealt with a matter of legitimate public concern, the court ruled, and therefore warranted some First Amendment protection, the judges also found that his criticism “impaired harmony among co-workers, detrimentally impacted close working relationships within the School of Medicine, impaired his performance as department chair, and interfered with the university’s ability to implement the move.”

The “disruption” caused by Schrier’s position, the 10th Circuit ruled, outweighed his First Amendment rights, and justified Colorado’s decision to remove him from his position.

The court did not stop there, though, to the dismay of advocates for academic freedom. Taking up the lower court’s conclusion that academic freedom has no “special” First Amendment significance, the appeals panel’s opinion includes language that asserts otherwise: “Courts have conspicuously recognized that academic freedom is a ’special concern’ of the First Amendment,” the 10th Circuit judges wrote. “Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”

But the court goes on to say that it agrees with the magistrate judge that “an independent right to academic freedom does not arise under the First Amendment without reference to the attendant right of free expression.... Schrier’s argument implies that professors possess a special constitutional right of academic freedom not enjoyed by other governmental employees. We decline to construe the First Amendment in a manner that would promote such inequality among similarly situated citizens.”

What that language does, says Robert M. O’Neil, a professor of law at the University of Virginia, is to equate the academic freedom protections afforded to professors to the First Amendment protections given generally to public employees.

That prospect troubles O’Neil, who says that the standards used to assess whether the comments or actions of public employees are protected by the First Amendment — whether they disrupt the workplace, for instance, or undermine public confidence in the agency — could apply very differently within a college or university classroom than they do at a state motor vehicles bureau.

“On the facts of this case themselves, I cannot say that this is the wrong decision,” said O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression. “But I would have been much more comfortable if the court had based its decision simply on the fact that the university needs to be able to secure the cooperation of administrative employees in carrying out decisions that the Board of Regents has reached. Unfortunately, it backs into a doctrine that has very dangerous implications.”

“I’m afraid this decision seems to be carrying over too much of the baggage of public employees’ speech into the obviously very sensitive and different area of academic freedom,” O’Neil said. “If this decision were to be read to say that academic freedom is qualified in circumstances where someone’s comments may undermine the confidence of students, alumni, and the like, then we’ve got real trouble.”

O’Neil said the decision could particularly spell trouble for department chairs and other scholars-turned-administrators who could be denied academic freedom protections because they make comments that create “conflict among faculty members,” as Schrier’s actions were perceived as having done.

Thomas Rice, a Denver lawyer who argued the university’s case before the 10th Circuit, said the court’s findings were clearcut. “These guys have been trying from the beginning to try to carve out some special
protection” for academic freedom,” Rice said. “But the trial court agreed with us, and now the appeals court agreed with us: Every citizen has First Amendment rights, and there is no special or hybrid or augmented First Amendment freedom that somebody enjoys merely because their speech is of an academic nature.

He added: “In a First Amendment retaliation case, Dr. Schrier has no more protection than anybody else.”

— Doug Lederman

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