The following statement was drafted by the MLA Committee on Academic Freedom and Professional Rights and Responsibilities in October 2009 after it consulted a report from the American Association of University Professors (AAUP) on the same subject. (For information on the AAUP’s report, see Protecting an Independent Faculty Voice.) In February 2010, the Executive Council revised the committee’s statement slightly and then approved it as an MLA statement.
In the case of Garcetti v. Ceballos (2006), the Supreme Court held that public employees have no First Amendment protection for statements they make in the course of their professional duties. The case concerned a deputy district attorney, Richard Ceballos, who objected to misstatements made in an affidavit for a search warrant. Ceballos brought his concerns to his supervisors; when they decided to proceed with the case anyway, he spoke to the defense attorneys in the case, and defense counsel subpoenaed him to testify. In response, his supervisors in the district attorney’s office retaliated against him, denying him a promotion and transferring him to a distant location. Ceballos sued, losing in district court but prevailing on appeal to the Ninth Circuit Court. The case then went to the Supreme Court, which reversed the findings of the Ninth Circuit, concluding that public employees are not protected when they speak “pursuant to their official duties.”
Even though Garcetti v. Ceballos did not involve university personnel, the Supreme Court’s holding has curious and unsettling implications for academic freedom. In dissent, Justice David Souter wrote, “This ostensible domain 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 First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’” However, Justice Anthony Kennedy’s majority opinion pointedly refused to answer Souter’s question, noting, “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.”
Three lower courts have now walked through the door left open by the Supreme Court majority’s ruling: Hong v. Grant (2007), Renken v. Gregory (2008), and Gorum v. Sessoms (2009). As a result of these rulings, faculty members at public universities can now face disciplinary action for statements they make in the course of their official duties. Notably, this includes statements faculty members may make while serving on academic committees or while addressing university procedures and policies; indeed, it conceivably covers everything a faculty member might do or say in the course of his or her working day.
This development is bad enough, since it affects every faculty member’s ability to render an honest assessment of a wide variety of ordinary academic matters, such as the design and maintenance of academic majors and graduate programs; admissions, hiring, tenure, and promotion; and the creation of new curriculums. But it has even more chilling implications in the light of the financial crisis many universities now face. Faculty members at public institutions who speak out on such matters—even to offer informed input on how to manage pay cuts, layoffs, furloughs, or deferred-compensation plans—can now face administrative retaliation if they participate in college and university governance, and they may have no recourse under the First Amendment.
The situation is complicated still further by the fact that the Garcetti decision relies on the precedent of Pickering v. Board of Education (1968), in which the Supreme Court found that Marvin Pickering’s complaints about his local school board enjoyed First Amendment protection only because they were so ill-informed and implausible that no one could possibly take them seriously. In other words, the implication of Garcetti is that faculty members whose statements are utterly ill-considered and misinformed enjoy First Amendment protection from administrative retaliation, but faculty members who know what they’re talking about speak up at their peril.
In response to Garcetti and the more recent decisions of lower courts, the Modern Language Association advises all faculty members at public colleges and universities to review and, if necessary, revise their faculty handbooks to include language that directly addresses Garcetti’s challenge to speech relating to official duties. 1 The MLA recognizes that faculty handbooks frequently do not have the force of law. Nevertheless, until Garcetti v. Ceballos and its progeny are overturned, we recommend that all faculty senates at public colleges and universities revisit their institution’s definition of academic freedom, and we recommend that all public colleges and universities reaffirm the right of their faculty members to speak on matters of public concern—and matters pursuant to their official duties—without fear of retaliation.
1. The Faculty Senate of the University of Minnesota recently revised their handbook’s academic freedom clause. The relevant clause had previously read, "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 as a public citizen." Now the phrase "as a public citizen" has been deleted and replaced with the following: "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." This revision is offered only as an example. Other strategies or different language may be more appropriate, depending on institutional context.
Garcetti v. Ceballos. 04-473. Supreme Court of the US. 2006. Legal Information Institute: Supreme Court Collection. Legal Information Inst., Cornell U Law School, n.d. Web. 5 May 2010.
University of Minnesota. Academic Freedom and Responsibility. U of Minnesota, Board of Regents Policy, 12 June 2009. Web. 5 May 2010.