U.S. Court Ducks Academic-Freedom Debate in Ruling Against California Professor

November 12, 2010

A federal appeals court has ruled against an emeritus professor who had accused the University of California at Irvine of trampling his free-speech rights, but the court did not take up the tough First Amendment questions that attracted national attention to his case.

In a terse, four-page decision issued on Friday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit said the various university leaders named as defendants in the lawsuit were shielded from its legal claims under the 11th Amendment, which has been interpreted as granting sovereign immunity to state officials.

Having declared the defendants immune, the three-judge panel declined to weigh in on the merits of the First Amendment claims made by the plaintiff, Juan Hong, an emeritus professor of chemical engineering and materials science. "We leave the question of whether faculty speech such as Hong's is protected under the First Amendment for consideration in another case," the judges said.

Mr. Hong alleged in his lawsuit that he had been denied a merit salary increase in 2004 because he had criticized the hiring and promotion decisions within his department at Irvine and had voiced concern about its reliance on part-time lecturers to teach lower-division classes. A U.S. District Court held in 2007 that Mr. Hong was not entitled to First Amendment protection for such speech because he had made the statements at issue in his capacity as a state employee.

Shadow of a Past Decision

In ruling against Mr. Hong, the district court cited a 2006 U.S. Supreme Court decision, in the case Garcetti v. Ceballos, which held that public agencies can discipline their employees for any speech made in connection with their jobs. That case involved a deputy district attorney, and the Supreme Court explicitly put aside the question of whether its logic would apply to speech made in an academic setting as well. Nevertheless, federal courts have applied the Garcetti ruling to several cases involving college faculty members, causing alarm among free-speech advocates who believe that letting colleges discipline faculty members over much work-related speech threatens academic freedom.

The Ninth Circuit panel could have denied immunity to the various university officials and administrators named as defendants in Mr. Hong's lawsuit if it concluded that they had violated a clearly established constitutional principle. But, the panel's decision said, "it is far from clearly established today, much less in 2004 when the university officers voted on Mr. Hong's merit increase, that university professors have a First Amendment right to comment on faculty administrative matters without retaliation."

Although the Ninth Circuit's decision is clearly a setback for Mr. Hong, it could have represented a much bigger setback for academic-freedom advocates if the judges had explicitly affirmed the lower court's application of the logic of the Garcetti decision to the dispute.

"The important thing for us is that the court does recognize that this is not a closed question," said Rachel Levinson, senior counsel for the American Association of University Professors, which had joined the Thomas Jefferson Center for the Protection of Free Expression in filing a friend-of-the-court brief urging the Ninth Circuit not to decide the case based on the Garcetti precedent.