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No Right to Preach

March 10, 2014

While the First Amendment provides faculty members at public colleges and universities with considerable latitude about what they may say, a federal judge has ruled it does not restrict a state university from cautioning professors against making statements that favor one religion or another, and that may seem to insult the religious views of some students.

Judge Keith Starrett ruled that Thomas Payne did not have a First Amendment claim against the University of Southern Mississippi over statements he made about his Christian faith. Payne said that the university retaliated against him -- in failing to promote him and in negative performance reviews -- based on his speaking out about his faith.

A graduate student complained to the university in 2009 that Payne, an associate professor of criminal justice, was making inappropriately religious statements in class or during course activities. For example, the graduate student said that Payne had encouraged her to pray, and had said that "anyone who is not a Christian is going to hell."

The graduate student said that many students felt uncomfortable, and she noted that there was at least one non-Christian (an international student who was Hindu) in the class.

Judge Starrett's ruling was on a motion by the university to dismiss the charges, so he did not consider evidence about what exactly Payne said. But the judge noted in his ruling that in an email that was entered into evidence, Payne did not contest the facts of what he said, and disagreed with the complaint only in his view that such comments were appropriate.

In fact, in his lawsuit Payne argues that the university unfairly urged him not to make such comments to students, and that this policy by the university had a "chilling effect" on his First Amendment rights "to express [his] Christian walk in the workplace."

Payne also said that he talked about his faith when it was appropriate in the context of the discussion. "As a Christian, I am called on to be evangelical.... [B]y that I mean when I am asked about my faith, that I stand up for my faith ... which is appropriate and not illegal."

But Judge Starrett cited a number of other court decisions to disagree. Among those decisions was the Supreme Court's 2006 ruling in Garcetti v. Ceballos that public employees do not enjoy normal First Amendment protections when their speech takes place in the context of their job duties. The case involved a district attorney's office, and the applicability of Garcetti to higher education has been heatedly debated, although the faculty advocates who do not want Garcetti applied in academe focus on the importance of professors having academic freedom to criticize administration decisions in the spirit of faculty governance, and to speak out on a range of issues. The debate has not focused on church/state issues.

Judge Starrett said Garcetti was relevant.

"Plaintiff apparently argues that the First Amendment permits him to engage in any religious speech he desires without reprisal, even within the context of his employment as a professor at a public university. But when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline," the judge wrote. "Plaintiff wholly failed to address this issue in his briefing, but the evidence demonstrates that all of the speech at issue took place pursuant to plaintiff’s duties as a professor at the university. Therefore, the speech was not protected from employer discipline, and the court grants defendants’ motions for summary judgment as to plaintiff’s First Amendment retaliation claim."

Via email, Payne defended his comments to students about his faith. "I have never had a student or fellow staff member ever question my Christian walk or witness," he said. "There have been no other complaints. Yet, after one unofficial complaint I was told not to practice my faith in the workplace. This was a clear violation of my First Amendment right to practice my faith and use religious speech. The real injury was both the chilling of my First Amendment right to religion but more about the university trying to make me conform to their secular non-religion."

 

 

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