The Footnote Judges Ignore

The American Association of University Professors is trying once again to get federal judges to pay attention to a footnote.

The footnote in question -- in a 2006 Supreme Court decision limiting the free speech rights of public employees -- explicitly stated that the decision in Garcetti v. Ceballos did not apply to faculty members in public higher education. Some (but not all) federal courts have been ignoring that footnote, and the AAUP filed a brief last week in one such case, which the association says highlights the dangers of the way Garcetti is being applied to free speech for faculty members.

The case that the AAUP entered is one in which a federal judge in February was explicit in finding that Garcetti removed protections for much faculty speech. "[S]ince Garcetti, courts have routinely held that even the speech of faculty members of public universities is not protected when made pursuant to their professional duties," said the ruling.

That ruling came in a suit filed by Loretta Capeheart, a tenured professor in the justice studies department at Northeastern Illinois University. Capeheart sued the university, charging that it retaliated against her by refusing to let her serve as department chair -- despite being elected to the post by her colleagues -- because of her activism on campus.

This retaliation, she said, violated her First Amendment rights. Among other things she has spoken out on behalf of two students who were arrested by campus police while they were protesting Central Intelligence Agency recruiting on campus. Further, she has made critical statements about administrative spending, and blamed the university for budget priorities that have made it difficult to attract more minority faculty members.

The various statements Capeheart made were in her capacities as a faculty member, as a member of the faculty governance system and as faculty adviser to the Socialist Club, a student group whose members were involved in the protest that led to two arrests.

Northeastern Illinois has denied doing anything that limits anyone's free speech rights. But the district court ruling in February did not address any evidence seeking to link university decisions about Capeheart to her campus activism. For the district court in February, the only relevant fact it needed was that she acted in her official capacity. Since Capeheart's claim was based on a First Amendment violation, once the court determined that Garcetti applied and that she had no First Amendment protection for the statements in question, it found that there was no reason to consider the merits of the case.

In Garcetti, the Supreme Court limited the rights of public employees in a case involving Richard Ceballos, a Los Angeles deputy district attorney who was demoted and transferred after criticizing a local sheriff's conduct to his supervisors. As the Garcetti case moved through the courts, advocates for faculty rights eyed it nervously, worried about limits on the speech of public employees, but hopeful that courts would see public higher education as having different needs for robust, public debate than some other units of government.

The Garcetti decision and dissent both contained evidence of the justices' concerns about academic freedom. In his dissent, then-Justice David Souter wrote that what the majority had defined as "beyond the pale of the First Amendment ... is spacious enough to include even the teaching of a public university professor, and I have to hope that today's majority does not mean to imperil the First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to official duties.' "

The decision, written by Justice Anthony M. Kennedy, answered Souter in a way that (at the time) relieved faculty members. "Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value,” Kennedy wrote in a footnote. “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."

Despite that seemingly clear directive from the Supreme Court, several courts have applied Garcetti to disputes involving public college faculty members. But other courts -- notably the U.S. Court of Appeals for the Fourth Circuit in an April ruling -- have found that Garcetti should not be applied to public higher education. "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, in a case involving a faculty member at the University of North Carolina at Wilmington.

The AAUP brief urges the U.S. Court of Appeals for the Seventh Circuit to apply similar logic. "The district court decided this case without acknowledging the academic speech reservation, much less undertaking the 'nuanced consideration of the range of issues that arise in the unique genre of academia' that both the majority and the dissent in Garcetti clearly called for," the AAUP brief says.

It goes on to talk about the unique nature of academic speech -- and ways that academic employees' speech doesn't fit the Garcetti model. For example, the AAUP brief notes that the Garcetti decision says that public employees who speak out are employed "to speak on behalf of the government." And that there is thus a legitimate government need for "substantive consistency and clarity" in the case of many government officials' speech, the brief says.

The AAUP adds: "This framework is fundamentally at odds with the professoriate’s unique role in the advancement of human knowledge – a 'transcendent value' not only for a community of scholars and students, but, as the Supreme Court has long recognized, for society as a whole."