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High Noon for Academic Freedom

cross-posted from howtheuniversityworks.com

Last week I posted on the scary case of Juan Hong, a tenured full professor at UC Irvine, who was retaliated against for his speech in connection with his governance duties. Because he dissented from the majority on a couple of personnel decisions, and expressed concern about the impact of nontenurable hiring on undergraduate learning, he attracted the ire of administrators and was denied a merit raise and assigned additional work. He has since retired, but is appealing his case, which has truly chilling implications for the rest of us: if you don’t have speech protections when engaging in governance, where do you have it? And how meaningful can “shared” governance be if you can be hounded off the campus for disagreeing with the administration?

Of course Bob Dole’s ranting response to Scott McClellan’s memoir of his years in the Bush mob makes it clear that real men don’t need no stinking academic freedom.

“There are miserable creatures like you in every administration who don’t have the guts to speak up or quit if there are disagreements with the boss or colleagues,” Dole opined, “because if all these awful things were happening, and perhaps some may have been, you should have spoken up publicly like a man, or quit your cushy, high-profile job.”

Thanks to the U.S. Supreme Court’s decision in the Garcetti case, however, even the most obscure civil servant who “has the guts to speak up” had better be prepared to be demoted, disgraced, or terminated for disagreeing with the political hacks appointed to be her boss. Thanks to Garcetti, in a way Dole’s right: “Speaking up” for civil servants has become a test of courage in a way that we haven’t seen for many years.

By the way, I checked in with my academic freedom guru, John Wilson, author of a prescient book on Obama as well as the essential Patriotic Correctness: Academic Freedom and its Enemies, on the applicability of the Garcetti case.

Most recent academic freedom cases are tests of the tension between the philosophically tenuous but nonetheless steadily more concrete claim of administrations to “institutional academic freedom” (construed as freedom from judicial intervention) and the actual speech rights of individuals. Increasing “freedom” for institutions often means greater encroachments on the faculty.

The Hong case seeks to give “institutional academic freedom” the cover of Garcetti, at least for public institutions. Regarding this strategy, however, Wilson snorted with derision via email: “First, Garcetti v. Ceballos was wrongly decided by the Supreme Court, and wrongly applied here to academic speech. [Clearly] when faculty are performing their official duties, academic freedom protects them from being fired for expressing controversial views.”

Referencing what he described as the equally flawed Parate v. Isibor, he noted: “It clearly stands for the right to express a viewpoint. The administration can overrule a professor’s grade under the ruling, but it can’t fire a professor for expressing a certain viewpoint.”

But while UC-Irvine didn’t fire Hong, it did retaliate, and the Ninth District upheld that retaliation under the Garcetti standard. So unless Hong v. Grant is overturned on appeal, you better get ready to live in Bob Dole’s world. Kinda like playing Gary Cooper’s role in High Noon.

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