Court Denies Conservative Pundit-Professor's Bias Claim Against University

March 17, 2010

A federal court has rejected a claim that the University of North Carolina at Wilmington committed viewpoint discrimination against Michael S. Adams, a prominent conservative commentator and associate professor of criminology, by denying him a promotion based partly on its review of online columns and other expressions of opinion that he included in his application to move up the ranks.

In granting the university's motion to dismiss Mr. Adams's lawsuit against it, Judge Malcolm J. Howard of the U.S. District Court in Greenville, N.C., held that Mr. Adams had failed to prove his allegation that the university denied him a promotion to full professor based on his Christian beliefs and conservative views, which he has expressed in a substantial body of published opinion columns that emulate the style of Ann Coulter and often have taken aim at the university's administration, faculty members, and staff.

More significantly as a matter of broader legal interpretation, the ruling that Judge Howard issued on Monday said Mr. Adams himself had caused his columns to be considered as work-related speech—rather than as outside speech clearly protected under the First Amendment—by including them in the package of materials he submitted in applying for promotion.

The judge said that to have ruled otherwise—and held that the opinion columns contained in the application were not work-related speech—would have opened the door for people in Mr. Adams's position "to place employers in a double bind" by submitting such material. The employers' choice would be to either "neglect employee requests and refuse to look at the material, fueling allegations of free-speech violations grounded in the refusal," or consider the material with the knowledge that, if they decide against the applicant, they will be open to claims they violated the applicant's First Amendment rights by basing their denial on protected speech.

Judge Howard's decision cited the U.S. Supreme Court's 2006 Garcetti v. Cabellos ruling, which upheld the disciplining of a deputy district attorney for questioning his own office's actions, in holding that Mr. Adams was not protected under the First Amendment for speech made pursuant to his official duties. Although other lower courts have similarly applied the Garcetti ruling to cases involving the speech of college faculty members, the Supreme Court's majority opinion in the case explicitly sidestepped the question of whether its reasoning should apply to academic speech. The American Association of University Professors has been joined by many free-speech advocates in arguing that federal courts are mistaken in applying the Garcetti ruling to cases involving college professors.

Mr. Adams has been represented in his lawsuit by the Alliance Defense Fund, an Arizona-based organization of Christian lawyers and like-minded groups. The alliance issued a statement saying that its lawyers were considering an appeal of the federal district court's decision.

"We disagree with the court's assessment that Dr. Adams's speech is somehow not protected by the Constitution," Jordan Lorence, a senior counsel for the alliance, said in the statement. "Opinion columns are classic examples of free speech protected by the First Amendment, and mentioning them in a promotion application does not change this fact."