The Alito Impact

The U.S. Supreme Court on Friday announced that it would rehear a case involving the rights of public employees, suggesting to many that the court was tied following the departure of Sandra Day O'Connor, but without the vote of Justice Samuel A. Alito Jr.

The case does not directly relate to higher education, but some faculty groups have feared that a ruling could significantly limit the free expression rights of professors at public institutions.

At issue is a dispute over statements made by Richard Ceballos, a deputy district attorney in Los Angeles. Ceballos was demoted and transferred after he told his supervisors that he believed a deputy sheriff had made false statements in seeking a warrant. Ceballos then sued and as his suit has gone through the judicial process, it has taken on much broader issues than whether Ceballos was treated unfairly. Some of the issues concern the immunity of state and local governments from being sued.

But one issue central to the Ceballos case is whether public employees have the right to speak out on matters of public concern. The U.S. Court of Appeals for the Ninth Circuit ruled that they have such a right. But when the Supreme Court agreed last year to hear the case, academic groups grew worried that the justices could reverse the Ninth Circuit’s decision in a way that could seriously hurt public college faculty members.

Of particular concern to faculty members is that the statements Ceballos made that apparently angered his superiors related directly to his work. If Ceballos loses in the Supreme Court, some fear, public college faculty members could lose protection to take controversial stands about their areas of scholarly expertise.

“The most valuable contributions that most university scholars and teachers make to public debate and understanding typically derive from their academic disciplines or fields of expertise,” says a brief recently filed with the U.S. Supreme Court by the American Association of University Professors and the Thomas Jefferson Center for the Protection of the First Amendment. “Thus, any suggestion that ‘matters of public concern’ many not encompass job-related expression of professors would undermine the special protections the Court has given academic freedom for the past 50 years.”

As is the Supreme Court's custom when it orders a rehearing in a case, it did not explain why it was doing so. But legal reporters in numerous publications noted that when a new Supreme Court justice arrives, the votes of the justice who was replaced no longer count if the decision has not been issued. Typically, the Supreme Court will go ahead and release decisions in which that vote was not decisive, but rehearings are likely when the departing judge leaves a 4-4 tie. In this case, the rehearing may not be great news for the faculty groups, given Justice Alito's history of supporting state and local government actions.