The intersection of academic freedom and public employment law is murky. There are two principles that are in potential conflict, and when they have conflicted, the courts as a whole have spoken with a forked tongue about them:
(1) Faculty members at public universities are state employees. The state has managerial and public policy responsibilities. With respect to the former, a public university has a managerial interest in employee speech and conduct. With respect to the latter, a public university, like any state actor, has an interest in speaking with a coherent, consistent voice about policies adopted by the government. Accordingly, faculty at public universities have no academic freedom rights beyond whatever First Amendment rights might apply to any other kind of state employee. Everyone has First Amendment rights as citizens, but public employees do not have the same rights as public employees that they have as private citizens. The same is true of faculty members at public institutions. They have First Amendment rights as citizens, but not as employees (faculty) of public colleges and universities.
(2) Public universities are not like other public institutions. They are institutions of teaching and research. As such, they cannot be governed by the First Amendment norms that apply to other kinds of state actors. To treat them in that way would make them mere mouthpieces of the state government. This would be antithetical to their role as centers of research and teaching. Public universities and their faculty have academic freedom rights that go beyond whatever First Amendment protections apply to the typical state employee. Academic freedom is a special First Amendment right.
Unfortunately, case law favoring Principle 1 above has been far more common in the courts since at least 2000, whereas one has to go back further in time to find significant case law supporting Principle 2.
The line of cases supporting Principle 2 began in 1957 with Sweezy v. New Hampshire. This involved a guest lecturer at the University of New Hampshire who was under investigation for alleged subversive activities. The Court’s opinion accorded faculty members at least the same speech rights possessed by other citizens. A concurring opinion by Justice Felix Frankfurter (citing a statement of a conference of senior scholars from the University of Cape Town) accorded to a university “four essential freedoms”: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”
The Court accorded universities relatively strong academic freedom rights in Keyishian v. Board of Regents (1967). The Court’s opinion, written by Justice William J. Brennan Jr., called academic freedom “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” This decision struck down a New York State loyalty law that the Court had upheld in Adler v. Board of Education (1952).
But decisions and opinions have started moving in the opposite direction and favoring Principle 1 since at least 2000. In Urofsky v. Gilmore, the Fourth Circuit Court of Appeals denied individual faculty members any First Amendment speech rights beyond those possessed by other citizens—thereby repudiating the view that academic freedom is a special First Amendment right. Urofsky upheld a Virginia state law that prohibited professors from viewing pornography on state-owned computers. The group of public-college professors who were the plaintiffs in the case had argued that the law hindered the ability of faculty members to teach students about laws, like the Communications Decency Act, governing pornography. Urofsky was particularly alarming to advocates of academic freedom because it spoke directly to the content of what is taught in a classroom.
Advocates of academic freedom were also alarmed by the Supreme Court’s ruling in 2006 in Garcetti v. Ceballos. Garcetti involved a deputy district attorney who had challenged disciplinary action taken against him for questioning an affidavit issued by his office. The Supreme Court found that because Ceballos’ memo against the affidavit was prepared as part of his official duties, it was not protected as citizen speech.
The Court’s opinion, which was written by Anthony M. Kennedy, held that “when public employees make statements pursuant to their official duties, the employees are not speaking out as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In Garcetti, the Court sidestepped the concern raised by David Souter in his dissenting opinion that the decision should not jeopardize the speech rights of public-college faculty members who “necessarily speak and write ‘pursuant to official duties’.” The Garcetti Court simply put aside the question whether its opinion “would apply in the same manner to a case involving speech related to scholarship or teaching.”
A conference I organized in the late 1990s for the California Association of Scholars addressed the question whether faculty have special First Amendment rights related to scholarship or teaching. The keynote speaker for the conference was Judge Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit. I was particularly pleased that Judge Kleinfeld agreed to be the keynote speaker, because he had been one of the three members of a panel of judges who had written a very strong opinion upholding the constitutionality of Proposition 209 in Coalition for Economic Equity v. Pete Wilson. Judge Kleinfeld accepted my invitation, offering to give the keynote address on the topic of academic freedom.
Judge Kleinfeld’s address was excellent, but dismaying. He was himself, he assured us, a strong advocate of the principle of academic freedom as public policy. He had, however, come to the conclusion that there was no constitutional principle supporting academic freedom as a First Amendment right. Students have very strong First Amendment rights at public colleges, he said, but the same is not true of professors, since they are regarded in the law as public employees, not citizens. This, he said, was a conclusion he did not expect to reach or want to reach: it was forced on him by a consideration of the law.
As an undergraduate he had read Mill’s On Liberty, and had assumed, like everyone else in the university, that the U.S. Constitution enshrined Millsian views about free speech and academic freedom as a constitutional principle. But later, as a judge, Kleinfeld concluded that it did not.
He was forced to consider the issue in a case he had adjudicated involving the salmon industry in Alaska. (Judge Kleinfeld is located in Fairbanks, Alaska.) I forget many of the details of the particular case, but it involved a professor who had published research findings that the salmon industry in Alaska didn’t like. If I remember correctly, the university barred him from further publication of his views or findings. Judge Kleinfeld didn’t approve of that policy, but he found no constitutional bar against it.
He spent the last part of his talk stressing the importance of organizations like the NAS and the CAS. While the law itself does not support the principle of academic freedom of faculty members as applied to their duties as public employees, he said, the principle of academic freedom is important and needs to be defended. That is one of the vital functions, he said, of organizations like the CAS and the NAS.
Several years later, I happened to mention Judge Kleinfeld’s talk in a phone conversation I had with Robert C. Post. At the time, Post was a member of the Boalt School of Law at U.C. Berkeley; since then he has been appointed the David Boies Professor of Law at Yale. As he has been in the past, Post continues to be very active in the cause of defending academic freedom.
Post scouted Kleinfeld’s view that academic speech had no special First Amendment protection. He said it simply wasn’t true. As I have noted, however, court decisions have not been favorable recently to Post’s own constitutional views. Recent case law has been strongly favoring the interpretation of the law given by Judge Kleinfeld in his keynote address to the CAS conference.
In the next part of this series, Tom Wood will look at how the current controversy at Virginia Tech exemplifies the intersection of academic freedom and public employment law.