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Faculty Speech Rights Rejected

December 23, 2009

A bitter dispute over a tenured professor fired by Idaho State University has become the latest case in which a court has suggested that faculty members at public colleges and universities do not have First Amendment protection when criticizing their administrations.

While the individual case of Habib Sadid continues to be much debated at the university, the way the judge ruled in the case has advocates for faculty members concerned.

The language in the decision "eviscerates the identity and role that a faculty member plays" in public higher education, said Rachel Levinson, senior counsel for the American Association of University Professors. The decision applies to a higher education context several court cases that the AAUP believes should not be applied to higher education, and one case involving higher education that the AAUP believes was wrongly decided because of reliance on the other cases. In many respects, the ruling in Sadid represents an extreme form of a legal pattern the AAUP recently warned was eroding faculty rights at public colleges.

Sadid was a frequent, caustic critic of his university's administration -- in ways that many at Idaho State (in particular the administration) believed crossed over lines of professionalism, but that he said represented the appropriate right to express dissent. He was fired despite a faculty panel's finding that there was not cause to do so, and his suit against the university charges that the university denied him his First Amendment rights.

Of particular concern to faculty members, Levinson said, is language in the ruling that suggests that professors at public colleges and universities have no more rights than employees of other institutions. In dismissing his suit, Judge David C. Nye cited several other cases that involve the right of employers to limit their employees' public statements. "Sadid should understand that he has limitations of his speech that he accepted when becoming a state employee," Nye wrote.

Further, Nye cited both the U.S. Supreme Court's decision in Garcetti v. Ceballos, and a lower court's decision based on it. In Garcetti, the Supreme Court ruled that First Amendment protections do not necessarily extend to public employees when they speak in capacities related to their jobs. Because that case involved a suit by a deputy district attorney in Los Angeles, and courts have traditionally accorded public college faculty members much more protection for their speech than other employees receive, faculty leaders hoped Garcetti wouldn't be applied to them. (And the majority decision suggested it need not have been.)

But judges have started to do so, notably in a federal district court's ruling that Juan Hong, a professor of chemical engineering at the University of California at Irvine, could not raise First Amendment protections when he said he was unfairly denied a merit raise because comments he made in faculty meetings offended superiors. Hong said that his department was relying too much on part-time instructors to teach lower-division courses, and that students were entitled to full-time professors.

The district court dismissed the suit, saying that these discussions were part of the "official duties" of professors, and thus under the Garcetti decision were not entitled to First Amendment protection.

Hong, with backing from the AAUP, is appealing that ruling. But Hong was cited several times by Judge Nye in dismissing the Sadid case. Based on the ruling in Hong's case, Nye wrote, "Sadid does not have a valid First Amendment claim."

Citing those cases "shows a profound misconception about the role public [college] faculty play," Levinson said. Questioning administrators on university policies is a matter of public interest that deserves First Amendment protection and has traditionally been seen that way, Levinson said. The shift in thinking by some courts, post-Garcetti, is why the AAUP has been urging faculty members to bolster their free speech rights in university documents or contracts.

While the Sadid ruling is another one applying Garcetti in ways faculty groups oppose, other judges have ruled that Garcetti does not limit faculty rights.

 

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