Typically, observers of the U.S. Supreme Court focus on what the justices definitively ruled. But there are also times when issues that aren't addressed -- even issues that are explicitly not addressed -- can create legal controversies. Faculty leaders believe that is what happened three years ago, when the U.S. Supreme Court ruled  that First Amendment protections do not necessarily extend to public employees when they speak in capacities related to their jobs.
The ruling came in Garcetti v. Ceballos,  a suit by a deputy district attorney in Los Angeles who was demoted after he criticized a local sheriff's conduct to his supervisors. By applying the case strictly in the context of higher education, lower courts are "posing the danger that, as First Amendment rights for public employees are narrowed, so too may be the constitutional protection for academic freedom at public institutions, perhaps fatally," says a report being issued today  by the American Association of University Professors.
The report suggests that, given the way Garcetti is being used by lower courts, it is time for faculty members to urge public college and university boards to affirm academic freedom protections, so that the decision is not applied to faculty members. Such action is needed, the AAUP report says, "to preserve all elements of academic freedom even in the face of judicial hostility or indifference." (The association has created a special Web page  with the report, suggestions for faculty groups, op-eds and case studies on how to get academic freedom policies revised to deal with concerns about the case.)
The AAUP's concern about Garcetti predated the Supreme Court ruling. The association, along with the Thomas Jefferson Center for the Protection of the First Amendment, filed a brief in the case, saying: "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.... Thus, any suggestion that ‘matters of public concern’ may not encompass job-related expression of professors would undermine the special protections the Court has given academic freedom for the past 50 years.”
Justice Anthony Kennedy, in his opinion in the case, noted the issues of academic freedom (which were picked up on in Justice David Souter's dissent) and suggested that they weren't relevant to the Garcetti dispute. "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," Kennedy wrote.
Justice Souter was not convinced. What the majority considers to be "beyond the pale of the First Amendment," Souter wrote, "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.'"
Souter draws the latter part of that quotation from the Supreme Court's 2003 decision in a University of Michigan affirmative action case, one in a long line of cases that expressed the court's commitment to "safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned," as the court put it in 1967.
To the dismay of advocates for academic freedom, and as outlined in several court cases in the AAUP report, Souter's prediction appears to have come true.
Consider, for example, the case of Juan Hong,  a professor of chemical engineering at the University of California at Irvine, who maintains that he was unfairly denied a merit raise because comments he made in faculty meetings offended superiors. Some of those comments concerned personnel decisions. More generally, Hong said that his department was relying too much on part-time instructors to teach lower-division courses, and that students were entitled to full-time professors.
A federal district court dismissed the suit, saying that these discussions were part of the "official duties" of professors, and thus under the Garcetti decision were not entitled to First Amendment protection. The court did not determine whether the lost merit raise was related to the comments. The case is currently on appeal and the AAUP has filed a brief saying that the district court's analysis was "fatally flawed" in ignoring the "profound differences" between academic and other forms of employment.
While the AAUP is continuing to appeal that and other cases, and is not conceding the idea that Garcetti should apply to public higher education, it is issuing the report coming out today out of the view that courts can't be relied upon to protect faculty rights on this issue, and to push an alternative approach. That approach is to have public universities adopt specific language in their policies on academic freedom that would cover matters such as governance or policy debates in which professors would likely have opinions (and express them).
As an example, the AAUP cites favorably a policy adopted in June by the University of Minnesota Board of Regents that states: "Academic freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the university. Academic responsibility implies the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest, one is not speaking for the institution."
Cary Nelson, national president of the AAUP, said that the association continues to believe that the courts that have applied Garcetti to public higher education have been in error, and said he expected that the association would continue to weigh in on the side of faculty members like Hong as their cases work their way through the legal system.
But Nelson said it didn't make sense to rely on an appeal to the Supreme Court to resolve the issue. "One is only willing to play Russian roulette with a certain number of the chambers filled," he quipped.
Codifying an interpretation of academic freedom into college and university policies, he said, provides two defenses. For those who teach at those institutions, there is the protection of having their rights stipulated. But if the Supreme Court ever does consider this issue, Nelson said, there will be a clear record that speaking out on institutional issues is a standard part of academic life for faculty members. "If there is a case that comes before the court, there will be a history that arrives with the case," he said.
Nelson noted that the Supreme Court has some history of "deferring to standard academic practice," so there are gains to be made by defining standard academic practice to have a broad understanding of academic freedom.
Ada Meloy, general counsel of the American Council on Education, said she agreed with the AAUP that higher education is a "unique haven" in American society for the free exchange of ideas, and said that the council had been "gratified" to see Justice Kennedy's statement in Garcetti indicating that different standards might apply at colleges and universities.
Meloy said she hasn't sensed "a raft of misapplications" of Garcetti to higher education, and that it was important to remember that each case has unique facts and circumstances.
Nonetheless, she said she thought the University of Minnesota's policy was "well thought out," and that the strategy of not relying on courts to protect academic freedom is "a wise one." Meloy particularly praised the Minnesota policy for noting "the importance of clarity when a faculty member is not speaking for the institution."