Deans Can't Count on First Amendment

In this era of brutal budget cuts and unpleasant debates about college priorities, deans at public institutions can't count on First Amendment protection if they disagree with their bosses in public.

That's the message of a ruling by the U.S. Court of Appeals for the Second Circuit, which found that the University of Connecticut had wide latitude to get rid of a dean who had differed with senior administrators in public. University administrators have "no obligation to retain in a management position, especially a high-ranking executive position, one who publicly opposed the university management’s policies," said the ruling.

The ruling reversed a federal district court, which found that there was potential that an ousted dean had had his First Amendment rights violated. But the appeals court said repeatedly in its decision that First Amendment protections do not assure deans of their positions if they take public stances in opposition to their presidents and provosts.

"[T]he management of a public institution, such as a university, is not required to retain in a management or policy-making position a person who publicly opposes its policies," said the decision. "Such an institution is entitled, for the sake of effective implementation of its policies, to have in management positions, especially high-ranking executive positions, persons who will support its policies, rather than persons who will undermine its goals by voicing public opposition to them."

The case before the appeals court was a lawsuit by Amir Faghri against, among others, Philip Austin and Peter Nicholls, the president and provost, respectively, at UConn. Faghri was dean of engineering at the university from 1998 until 2006, when Nicholls removed him from his position as dean (but not from his faculty position).

While Faghri was in the middle of a second five-year term when he was removed, his relationship with senior administrators had deteriorated. He had publicly spoken out against a proposed UConn campus in the Middle East, opposed various proposed cuts at the UConn campus, called for an investigation into possible misuse of university construction funds, and said that the university wasn't providing enough money to hold on to top engineering professors. UConn never maintained that it removed Faghri from his deanship for speaking out. Rather, the university noted that faculty members had started to complain about his leadership. And neither the district court nor the appeals court ruled on whether the university moved against Faghri because of his dissent.

But the district court, in rejecting a bid to dismiss the suit, ruled that it was possible that Faghri had a First Amendment case. And the appeals court examined the issue based on assumptions most favorable to Faghri's claims (namely that he was removed as dean for his criticism) and found that he didn't have a First Amendment case.

The issue of deans who disagree with university leaders is hardly unique to UConn. At Georgia State University this year, amid a discussion of possible deep budget cuts, one idea considered was the merger of the Andrew Young School of Policy Studies with another college. A few days after Bart Hildreth, the college’s dean, sent a five-page memo to faculty that said the plan would “destroy arguably the most successful quality academic enterprise on campus," he was out of his job as dean. (The college wasn't merged.)

While the appeals court rejected the idea that a dean has First Amendment protection for being fired for criticizing policy, it did not say that the university's protection was absolute.

Faghri, the court ruled, "could not have been jailed or held liable for such speech or enjoined from speaking."

Further, the court ruled that a faculty member without administrative responsibilities would have First Amendment protection in such a case. "The reasoning of our decision depends upon the fact that it was from a management position that the university removed him. We do not suggest that a public university can fire a teacher for voicing opposition to university policy," the decision said. "Faghri, however, lost only his position on the university management team; he retained his chaired professorship. His vocal opposition to university policies entitled the university management to remove him from the deanship."

Reached at home, Faghri declined to comment on the ruling.