The U.S. Court of Appeals for the Ninth Circuit last week gave a lift to free speech rights for faculty members at public colleges and universities by ruling that a 2006 Supreme Court decision does not limit those rights. Instead, the appeals court found that a more general First Amendment analysis protects those rights. The 2006 ruling, in Garcetti v. Ceballos, limited the speech rights of public employees. But the decision, which concerned the Los Angeles district attorney's office, noted that the ruling did not deal with identical issues to those found in public higher education. Despite that, some courts have been applying the ruling to faculty disputes at public universities -- while others have not. Faculty leaders have been pushing for clarification of university policies as a way to protect free speech rights amid the uncertain legal environment.
Last week's ruling, which essentially adopted the position of faculty groups with regard to Garcetti, came in a lawsuit by David Demers, a professor who says he was retaliated against with negative performance reviews for writings that criticized the administration. A lower court, citing Garcetti, rejected the suit, which has now been revived by the appeals court. The appeals court sent the case back to the district court, however, and did not determine whether retaliation had taken place.