Kennedy, Roberts, Alito, Scalia, Thomas ... Ouch!

While this decision has potentially disastrous consequences for the principle of academic freedom in many settings, it is merely business as usual for thousands of employees (including faculty) at private colleges and universities throughout the U.S. If worse comes to worse in this case, it will put faculty at public universities in very close to the same position faculty at private universities have been for many, many years.

I was fired last year from a small private university that has eschewed a system of tenure. Ostensibly, the reason for my firing was an innocuous, self-deprecating e-mail message I wrote and shared (from my home-office Internet service provider) with a few friends and colleagues. I had outstanding teaching evaluations, an exemplary service record, and research production that was second or third best in the business school where I taught. Because I pushed the “process” as far as I could, my case was heard by two review boards ... made up entirely of administrators. Despite my numerous requests to review the charges against me, they were not provided. I heard them for the first time at the first review board meeting ... and I was not allowed a recess of one day to prepare a response to them. The administration managed to find one faculty member – make a note of that, ONE faculty member — to testify against me, and he presented no evidence in support of his statements. Every one of his substantive statements was a falsehood, and I have documentation to prove that. My case was never heard by a committee of my peers.

Neither the American Association of University Professors nor the Thomas Jefferson Center for the Protection of the First Amendment were the slightest bit interested in taking my case (presumably because the University was “private” ... not that it doesn’t solicit and receive state and federal funding for various programs).

In retrospect, both I and the “university” administration – but certainly not their students – are better off for my having been fired.

That, in a nutshell, is why I think this case has potentially significant consequences. Larry, where were you when I needed you?

RWH, at 9:45 am EDT on May 31, 2006

Employment=non-citizen

It’s an odd ruling that says one relinquishes one’s citizenry on the basis of employment. Where are the limits of such a notion? Has the supreme court just reinstituted slavery in accordance with the worst warnings of the Confederate South?

Let’s look at this again: You have no freedom of speech as long as you are working. Let’s face the facts: if a work-related citizen action is not considered free speech, then anything outside of work-related speech could easily be defined as deriliction of duty. In fact, some positions consider life outside of work having a work impact, so there are no boundaries to this limitation of speech and employees are utterly at the mercy of their employers.

The worst part is that the punished communication was a matter of professional ethics — a recommendation that someone be fired for acting irresponsibly. The employers protected those that acted improperly and punished the whistle-blower and the supreme court backed them up.

There is something seriously, seriously wrong with that. When such injustice is condoned and protected by the SUPREME COURT, this country is rapidly becoming dangerous to its own citizens. This ruling is an attempt to revoke the first amendment at its very core.

Advisor Ian, Program Advisor, at 10:30 am EDT on May 31, 2006

There is nothing wrong with the decision.

First of all, I assume that everyone who commented read the decision. If you didn’t, you can’t complain about it.

Advisor Ian, Professional ethics, while important do not guarantee anyone any rights under the first amendment. In fact, a pretty good argument could be made under state law (which governs these things) that such conduct is, subject to some protection. See Wieder v. Skala, 609 N.E. 2d 105 (N.Y. 1992), Matzkin v. Delaney et al, 2005, WL 2009277 (Conn. Super. Ct. 2005). Substantive protections emanating from rules of professional responsibility is in its infancy, but there are some indications that it will flourish. The First amendment just isn’t the place to do it. In fact, a far, far, greater injustice would be worked if the Justices disregarded the question they had granted cert. on, and made a ruling not under the constitution, but under state law.

Mr. Scott, Instead of complaining about lawyers (and asserting that you are one), why don’t you try being a lawyer and explain why the decision was incorrect. I want to see if I can argee with you, but it is hard to when you are only offereing political rhetoric.

Larry, at 2:40 pm EDT on May 31, 2006

Free Speech

Free Speech is supposed to protect one from punishment by the government, not from employers choosing to no longer employ you or only employ you in a lesser capacity. It is about time the courts made this abundantly clear — this case is a step in the right direction.

Kevin, Undergraduate, at 4:30 pm EDT on May 31, 2006

simple reality

The simple reality of private businesses in the United States is that the majority require consent to “termination at will” as a condition of employment. To the professors who have commented: it’s ironic, but heartening, that an undergraduate (Kevin) gets this but you do not.

Dean, at 9:55 pm EDT on May 31, 2006

Response to Kevin

Kevin,

It is not clear what is the basis of your claim that free speech was not ‘intended’ to apply to institutions of higher learning. Indeed, universities and schools of theology were the first Western institutions to take seriously the notion that protecting speech encourage ideas to flourish. I suggest you study the evolution of the university in the Middle Ages and beyond.

I also wonder if you have any understanding of the pernicious influence of corporate conformism. I doubt you have yet worked for a major corporation and have an appreciation for how stiffling such an environment.

Roderick Beck, Roderick, at 10:05 pm EDT on May 31, 2006

Why is this decision even controversial? If you work for Microsoft and proclaim that Bill Gates is an idiot, you will get fired. If you work at McDonald’s and tell the customers that Burger King is better, you will get fired. Employees have never had free speech. Admittedly, there are some free speech concerns within academia, and I can accept that exploring this issue is worthwhile. But saying that a lawyer who insults his colleagues while on the job is having his free speech rights stifled is absurd.

Steve

Steve, What’s going on?, at 12:20 pm EDT on June 1, 2006

Larry Deserves Special Attention: ...

I read almost all of Larry’s posts at InsideHigherEd. From some I learn quite a bit, but from more than a few I see an attorney addressing details of legal decisions and snipping at others about issues that leave me cold and, in my opinion, are only tangential to the issue at hand. I know, I know ... I can already hear him lecturing me that the Devil is in the details.

But Larry’s recent lecture — it’s becoming a theme — that no one, least of all a scholar, has the right to comment on a legal decision unless s/he has actually read the decision is just nonsense. I suppose if we all cave in and refuse to comment on anything without having studied it at the level of “first principles,” he will still not be mollified. I can just imagine his next admonition, “No one purporting to be a scholar should comment on Supreme Court decision XT-238, Section B unless s/he has a law degree from Harvard, has clerked for a Supreme Court justice, and has read the case.”

There are many things I know — and some I know quite well — because I have relied on the knowledge and analysis of others whose backgrounds and expertise I trust. Indeed, that is why I often read Larry’s posts. Several days ago I started in on GARCETTI ET AL. v. CEBALLOS and learned, among other things, that ...

“This displacement of managerial discretion by judicial supervision finds no support in the Court’s precedents. The doctrinal anomaly the Court of Appeals perceived in compelling public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties misconceives the theoretical underpinnings of this Court’s decisions and is unfounded as a practical matter. Pp. 8–13..”

I would have learned more, but, unfortunately I never clerked for Sandra Day O’Conner, and anyway it was time for me to tune in to Judge Mathis.

And what have I learned from Larry’s posts on this topic? Well, first, that he’s apparently read the decision and, second, that he is sometimes like a yappy Terrier nipping at the heels of the postman and barking, “Watch out for me ... watch out for me.”

Larry, what I really wanted from you was your take on what this ruling means in a very practical sense to faculty at public colleges and universities today ... and what is your sense of the meaning of this case vis-a-vis how the new “Reagan/Bush/Bush majority” will refashion both the First Amendment and academic freedom.

By the way, I think your statement, “While it is all well and good to say that ‘employees have no rights,’ in fact, public employees do have some rights, since unlike private employers, public employees (sic) cannot violate the constitution, and (absent a specific statute) a private employer could fire someone for writing a letter” is in error. Unless I’m mistaken, even private employers must obey the constitution; it’s just that when it comes to firing an employee because you don’t like the content of a letter he sent to a few friends, the constitution constrains the private employer not one iota. And, as you can tell from my earlier post, I am one of the fired.

RWH, at 12:30 am EDT on June 3, 2006

Response to Dr. Beck

Greetings Dr. Beck. My point was simply that Academic freedom is based on contractual obligations, not a government-created protection from your employers.

The first amendment ONLY protects a person from government action, not from those of other individuals (including, but not limited to the people who employ you).

Kevin, Undergraduate, at 7:55 pm EDT on June 4, 2006