June 13, 2006

No Academic Bill of Rights?

By Dennis Baron

On May 30, the U.S. Supreme Court ruled that the First Amendment does not protect government employees from being disciplined for speech or writing “made pursuant to official responsibilities.” While the ruling in Garcetti v. Ceballosspecifically excluded the research and teaching of faculty members at public institutions, at least for now, the decision is almost certain to have some campus fallout.

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The case was brought by Richard Ceballos, an assistant district attorney in Los Angeles, who wrote a memo recommending dismissal of a prosecution because the affidavit that police used to obtain a search warrant was inaccurate. Supervisors were openly unhappy with the memo and went forward with the prosecution in spite of it. Ceballos alleged that afterwards they penalized him by reassigning him to a different job and by denying him a promotion. While lower courts found that no retaliation had occurred, the Ninth Circuit Court of Appeals disagreed, further
ruling that Ceballos’s unwelcome memo was protected under the First Amendment. The Supreme Court reversed the Ninth Circuit’s decision on the grounds that the memo was not protected speech, and remanded the case for reconsideration.

In the majority opinion, written by Justice Kennedy, the Court noted that the First Amendment would have protected Ceballos had he been penalized for articulating an unpopular view as a citizen, commenting on politics or other matters of public interest that any citizen might be concerned about, even if they were matters that fell within his particular expertise. Since he was expressing an opinion not as a concerned citizen but as part of his job as a government employee, and in a 5-to-4 decision, the justices concluded that on-the-job speech and writing of public employees are excluded from First Amendment protection.

In his dissent, Justice Souter expressed the fear — voiced by a number of faculty groups once the Supreme Court agreed to hear the case — that the ruling could dilute the academic freedom of instructors at public colleges. Addressing this concern, the Court’s opinion specifically sidesteps the issue of academic freedom, leaving it for another day, and another case: “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.”

This apparent exception is being viewed both as a victory and as a challenge for academic freedom — a victory because it specifically separates academic expression from the broad doctrine of work-related speech being laid down; a challenge because it leaves academic freedom hanging by what may prove to be a slender thread.

After reading Ceballos, instructors at public institutions could easily conclude that academic speech retains the special protections they have come to expect under the principles of academic freedom articulated by the AAUP and subscribed to by most public and private colleges. But to a less optimistic observer the academic freedom exception is a typical Court hedge: we’re not asked to decide whether academic speech is protected today, so we won’t. Furthermore, the carefully qualified, almost skeptical, wording — “there is some argument” that academic discourse “implicates additional constitutional interests” — would seem to invite a test case to resolve the matter.

We may not have to wait long for such a case. Conservative activists are urging states to adopt an “Academic Bill of Rights” aimed not at protecting academic speech but at ridding colleges of left-leaning faculty. The American Council of Alumni and Trustees has published a report critical of liberal faculty who replace traditional curricula with multiculturalism, Marxism, godlessness, and evolution. David Horowitz has published a list of the 100 most dangerous — that is, liberal — professors in the United States. And the Pennsylvania state legislature has set up a select committee to investigate the tyranny of the liberal elite who supposedly control that state’s public colleges.

With all this hoopla, so far there’s no evidence of a liberal plot to control academia and deny students an education, and so far there have been no prosecutions. But in such a climate — one we haven’t seen since Senator McCarthy and HUAC took on the universities in the 1950s — faculty can expect to be challenged, whether they are outspoken liberals or conservatives, or they go quietly about their teaching and research without making many waves; or they belong to the growing group of untenured, temporary, and part-time instructors afraid to say anything even with the protections of academic freedom, for fear they won’t be reappointed.

If a test case involving academic speech does arise, a Supreme Court already unwilling to extend First Amendment protection to public employees ranging from ADA’s to office clerks to medical personnel in state-run facilities could easily extend the doctrine espoused in Ceballos to the classroom.

But applying Ceballos to academic discourse produces unexpected results. The First Amendment prohibits Congress from making laws abridging the freedom of speech. Both public and private employees, when acting as ordinary citizens rather than employees, enjoy First Amendment protection when they express opinions. Protections on employee speech are different. Employers have always been able to control the on-the-job discourse of workers, and the courts have typically supported them in that effort.

The Supreme Court’s new conservative majority ruled against Ceballos — Justice Alito cast the deciding vote — because he is an employee. That he is a government employee simply does not matter. Were Ceballos expressing a political opinion, his speech would be protected, but memos written as part of his job were not.

Using the same reasoning, the Court could just as easily decide that the political speech of academics is protected when it is not part of their job, but that anything academics say or write when they’re at work — not just memos or e-mails to students, but their scholarship and their teaching — actually falls outside the umbrella of the First Amendment.

Adding Ceballos to the mix of what’s protected and was isn’t could let whimsy and prejudice play a significant role in regulating academic speech, just as it now plays a role in regulating what happens to a district attorney who suggests that the police are fabricating evidence in order to get a search warrant. A department head, a dean, a provost, a president, even a trustee who doesn’t like what a faculty member says for any reason, academic, religious or political, could discipline the faculty member for it in the same way that Ceballos’s supervisors didn’t like his criticism of the police, and disciplined him.

Worse still, if a parent, a state legislator, or a watchdog group exerts pressure on the institution because of a faculty member’s professional positions on multiculturalism or postcolonialism, on evolution or the big bang, as stated not in letters to the editor or at town meetings, but in published research or in the classroom, the institution could decide to remove the pressure by silencing the speech.

Of course all of this is conjecture. There is no test case. The Supreme Court has not imperiled academic speech. Even the “Academic Bill of Rights” insists that its goal is to defend academic freedom, though the AAUP, whose principles of academic freedom are liberally co-opted in that document, is skeptical of that claim. But academics and Court watchers would do well to anticipate the chilling impact that the Ceballos decision will have, both in the district attorney’s office and beyond, effects that could eventually affect those of us who work in public institutions of higher education.

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