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Evaporating First Amendment?

Evaporating First Amendment?
March 18, 2010

Garcetti strikes again. That's the U.S. Supreme Court decision -- in a case having nothing to do with higher education -- that faculty advocates are worried is being interpreted incorrectly and in ways that limit professors' free speech.

In the latest ruling, a federal judge rejected a suit by Mike Adams, an associate professor of criminal justice at the University of North Carolina at Wilmington who charged that he was denied promotion to full professor because of his conservative, Christian views. The suit was rejected for many reasons, including a judge's finding that there were legitimate reasons cited for the decision that had nothing to do with Adams's beliefs. (His colleagues faulted his research productivity and service, although they generally gave him high marks on teaching.)

But part of the judge's ruling also rejected the idea that Adams has First Amendment protection for the columns he wrote for various publications (columns known for a mocking tone along with hard line views) because he submitted them as part of his promotion dossier. And the reason that the columns have no protection, the judge ruled, is the Garcetti decision. Because Adams is receiving strong support from conservative groups for his suit, the ruling is drawing their attention to Garcetti's impact on the academy.

The Alliance Defense Fund, which has been backing Adams, issued a statement Monday in which Jordan Lorence, one of its lawyers, said: “We disagree with the court’s assessment that Dr. Adams’s speech is somehow not protected by the Constitution. Opinion columns are classic examples of free speech protected by the First Amendment, and mentioning them on a promotion application does not change this fact.”

Garcetti v. Ceballos was filed by a deputy district attorney in Los Angeles who was demoted after he criticized a local sheriff's conduct to his supervisors. The ruling in the case found that First Amendment protections do not extend to public employees when they speak in capacities related to their jobs. A footnote said that the ruling did not necessarily apply to higher education. But to the dismay of faculty groups, several federal judges have applied it in the higher education context.

Several of those cases have involved faculty members who criticized their administrations. The Adams case is one that might seem quite close to the First Amendment, as it involves controversial stands on political issues.

The ruling in the case said, however, that even if the columns played some role in his treatment, they lacked First Amendment protection. The judge ruled that as soon as Adams submitted them in his tenure dossier, they became part of his work as a professor. And once they became part of his work as a professor, he lost First Amendment protection for them, the judge ruled, citing Garcetti.

Rachel Levinson, senior counsel of the American Association of University Professors, said that she was concerned that the judge didn't "make any attempt to grapple" with the Supreme Court's explicit "reservation" of the question of whether Garcetti should be applied to faculty members. Levinson said that the decision was especially of concern in light of the subject matter of the Adams columns -- political issues.

"The nexus between the speech in question here and the categories that the Supreme Court reserved for later inquiry is even clearer, and the court nevertheless completely fails to recognize not only that the Garcetti court declined to impose its official duties framework on faculty speech but also that the framework is completely inapposite in the faculty context because faculty are not hired to toe a government line," she said. "That lack of understanding is enormously troubling."

 

 

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