At a time when faculty groups are increasingly worried that a Supreme Court ruling is being used to limit the free speech rights of public college professors, a federal judge has declined a college's request  to do just that.
The judge's ruling keeps alive First Amendment claims in a lawsuit by June Sheldon, who in 2007 lost an adjunct science teaching job (and the offer of courses to teach the following semester) at San Jose City College. Sheldon lost her job following a student complaint about comments she is alleged to have made during a class discussion of the "nature vs. nurture" debate with regard to why some people are gay.
Some students complained that her comments suggested that she did not believe anyone could be born a lesbian, and that the way she endorsed the "nurture" side of the debate was offensive. (While it is not disputed that there was a general discussion on this topic, there is considerable disagreement over exactly what was said, and this week's ruling does not resolve that matter.)
Sheldon sued the college  in federal court, charging that her First Amendment and other rights were violated. Judge Ronald M. Whyte, while rejecting parts of the suit, turned down a request by the San Jose/Evergreen Community College District to dismiss the First Amendment claims. While Judge Whyte's ruling makes no determination on whether Sheldon's First Amendment rights were violated, the ruling states that she has First Amendment rights and doesn't lose them by virtue of the speech in question taking place while she was teaching at a public college.
The ruling stated that "the precise contours of the First Amendment's application in the context of a college professor's instructional speech are ill-defined and are not easily determined," and also noted that Sheldon could still be punished for what she said in the classroom if the college was acting under "legitimate pedagogical concerns." But the ruling rejected the community college district's attempt to apply the Supreme Court's 2006 ruling in Garcetti v. Ceballos  to reject Sheldon's claims to having First Amendment rights for classroom speech.
In theory, many faculty leaders say, Garcetti never should even be a cause of concern when it comes to faculty members' rights. The Garcetti ruling came in a case involving the district attorney's office in Los Angeles and rolled back the First Amendment protections available to public employees in the context of their jobs. In the court's opinion in the case, Justice Anthony M. Kennedy wrote explicitly that the factors in the case were different from those at play in higher education, and that the Supreme Court was not making a determination about these issues as they might play out in higher education.
"There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching," Kennedy wrote.
At the time, advocates for faculty members said they couldn't agree more that academic employment is different from employment in the district attorney's office. But to faculty leaders' dismay, not all judges applying the Garcetti decision seem to have noted Justice Kennedy's comments about academe.
For example, there is the case of Juan Hong,  a professor of chemical engineering at the University of California at Irvine, who maintains that he was unfairly denied a merit raise because comments he made in faculty meetings offended superiors. Some of those comments concerned personnel decisions. More generally, 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.
A federal 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. The case is currently on appeal, but rulings such as that one led the American Association of University Professors to issue a report last month  saying that Garcetti's inappropriate application was eroding academic freedom.
But in the Sheldon case, Judge Whyte rejected the college's attempt to cite Garcetti, writing that "Garcetti by its express terms does not address the context squarely presented here: the First Amendment's application to teaching-related speech" and saying that, as a result, the college district's "heavy reliance on Garcetti is misplaced." And without an impact from Garcetti, "the [U.S. Court of Appeals for the] Ninth Circuit has previously recognized that teachers have First Amendment rights regarding their classroom speech, albeit without defining the precise contours of those rights," the judge wrote, leaving it to trial to determine how these rights would be applied in this case.
Rachel Levinson, senior counsel for the AAUP, said she was "cautiously" pleased with the ruling in the Sheldon case, and that she couldn't be fully pleased while other rulings continue to apply Garcetti to higher education. She added, however that "I was very pleased that the court did recognize that the majority in Garcetti expressly reserved the issue of First Amendment protection for speech related to teaching, among other things. It’s heartening."
Lawyers for the San Jose/Evergreen district, which had tried to apply Garcetti to the Sheldon case, did not respond to a request for comment.