Free to Speak Out

U.S. appeals court rejects idea -- adopted by several lower courts -- that a 2006 Supreme Court ruling limited the rights of public higher ed faculty.
April 7, 2011

A controversial professor suing his university in North Carolina won a key ruling Wednesday from a federal appeals court -- and the decision could eventually benefit faculty members at all public institutions.

The U.S. Court of Appeals for the Fourth Circuit ruled that the 2006 Supreme Court decision in Garcetti v. Ceballos -- which limited the free speech rights of some public employees -- does not apply to faculty members of public colleges and universities.

"Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment," said the decision.

That conclusion is largely what academic groups have been saying all along. Justice Anthony Kennedy's opinion in Garcetti included a footnote explicitly stating that there may be "additional constitutional interests" in the free speech rights of public higher education faculty members. For that reason, Kennedy wrote, the justices "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."

Despite that footnote, however, federal courts have been applying Garcetti to reject free speech claims of public college and university faculty members, leading many advocates for professors to believe that the judiciary was ignoring Kennedy's footnote, endangering faculty free speech rights.

In the ruling that Wednesday's decision overturned, a federal judge ruled that political columns written by Mike Adams, an associate professor of criminal justice at the University of North Carolina at Wilmington, had no First Amendment protection in his dispute with the university, because he submitted some of the columns with his proposal for a promotion.

The idea that a professor's op-eds had no First Amendment protections enraged many who monitor academic freedom issues. Adams received backing from the Alliance Defense Fund, which frequently defends the rights of religious students and faculty members, and the American Association of University Professors -- two groups that have differed on many other issues.

In his suit, Adams charges that he was denied promotion to full professor because of his conservative, Christian views. (For a sampling of those views, as expressed in his columns, see his page at Townhall Conservative.)

The decision Wednesday does not decide the merits of Adams's case. The appeals court upheld the lower court's decision that there wasn't evidence to back his claim of religious discrimination. And the university has offered reasons that the lower court judge said might be legitimate for denying Adams the promotion. (His colleagues faulted his research productivity and service, although they generally gave him high marks on teaching.) The case now goes back to a federal district court, which will determine whether Adams was denied his promotion in violation of his rights -- but this time his op-eds will be considered material with First Amendment protection.

The university issued a statement following the decision, noting that Adams had been successful only on the First Amendment issue. Rob Hoon, general counsel at Wilmington, said: "We are pleased that summary judgment has been affirmed and that the plaintiff's claims of religious discrimination and equal protection have been dismissed. The third claim has been remanded to the district court for further review; as such, it is not a victory for either the plaintiff or the defendant."

Rachel Levinson, senior counsel to the AAUP, said that the ruling was "extremely important" for faculty members. "The Fourth Circuit recognized that faculty speech on a variety of issues is protected by the First Amendment, and affirmed that the Supreme Court's decision in Garcetti explicitly does not apply to a range of academic work and service at a public university."

The decision, she said, "reiterated a fundamental principle" that "no citizen should be prohibited from speaking on a variety of issues simply because of his or her public employment." Levinson said that she hoped the decision would "guide other courts" when they are considering cases involving "the critical First Amendment rights of faculty members at public universities."

David French, senior counsel for the Alliance Defense Fund, issued a statement calling Wednesday's decision "a ringing vindication of the academic freedom of public university professors. Disagreeing with an accomplished professor’s religious and political views is no grounds for refusing him promotion. Opinion columns are among the purest examples of free speech protected by the First Amendment.”


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