In a ruling that breaks from other recent federal court decisions chipping away at the speech rights of public colleges’ faculty members, the U.S. Court of Appeals for the Fourth Circuit held on Wednesday that the University of North Carolina at Wilmington could not deny a promotion to a faculty member, the prominent conservative commentator Michael S. Adams, based on writings that university administrators had deemed job-related.
Squarely tackling the question of whether the speech of a faculty member at a public college is covered by the U.S. Supreme Court’s 2006 ruling in Garcetti v. Ceballos, which held that public agencies can discipline their employees for any statements made in connection with their jobs, a three-judge panel of the Fourth Circuit answered with an emphatic no.
“Applying Garcetti to the academic work of a public-university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment,” the appellate panel’s unanimous decision says. “That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.”
The ruling overturns a U.S. District Court’s decision to reject Mr. Adams’s assertions that the speech at issue in the case was constitutionally protected.
“Put simply,” the panel said, “Adams’s speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields.”
The panel’s ruling noted that the majority opinion in Garcetti explicitly put off the question of whether the decision should apply to speech related to scholarship or teaching, and suggested that about the only faculty speech potentially covered by the Supreme Court’s ruling is that stemming from a given faculty member’s involvement “in declaring or administering university policy,” which is “clearly not the circumstance” in the Adams case. The panel said the Fourth Circuit had previously declined to apply the Garcetti decision in a case involving the speech of a public-high-school teacher, and its belief that Garcetti should not be applied to speech involving scholarship or teaching “is equally—if not more—valid in the public university setting.”
‘A Ringing Victory’
David A. French, who, as senior counsel for the Alliance Defense Fund, helped represent Mr. Adams in the case, on Wednesday cheered the Fourth Circuit’s ruling as “a ringing victory for academic freedom,” with language that “is very clear, and not only binding in the Fourth Circuit but, I hope, quite persuasive to the other circuits.”
The ruling “deals a real blow to the idea that professors’ speech is somehow wholly owned by the university. It is not,” said Mr. French, whose organization, an Arizona-based alliance of Christian lawyers and like-minded groups, took up the case partly because Mr. Adams had accused the university of religious discrimination.
The University of North Carolina at Wilmington issued a statement on Wednesday in which John P. Scherer II, its associate general counsel, said that officials there are still reviewing the Fourth Circuit’s ruling in consultation with the state attorney general’s office and do not have additional comment at this time.
Rachel Levinson, senior counsel of the American Association of University Professors, which signed onto a friend-of-the-court brief supporting Mr. Adams, issued a statement saying, “We are thrilled by the court’s decision,” which “recognized that the Garcetti decision—by its clear language—does not apply to scholarship or teaching by faculty at public universities.”
The Fourth Circuit’s ruling was far from a total victory for Mr. Adams, an associate professor of criminology who often writes opinion columns expressing conservative views and, in many, takes aim at the university’s administration, faculty members, and staff.
The three-judge panel endorsed the lower court’s decision to reject Mr. Adams’s claim that he was the victim of religious discrimination, holding that the presence of religious content in some of the writings university administrators considered in denying him a promotion did not amount to evidence that the university’s decision was in response to his religious views. Based on its conclusion that Mr. Adams was not the victim of religious discrimination, the appeals panel also rejected his claim that his right to equal protection under the law had been violated.
But the Fourth Circuit panel held that Mr. Adams’s claims to First Amendment protection were clear enough that the district court was correct in denying university officials’ claim to immunity from being sued as individuals based on their assertion that their conduct did not violate any clearly established constitutional right.
The panel also rejected the district court’s conclusion that the opinion columns written by Mr. Adams formally became work-related speech when he included them in his application for promotion. “The district court cited no precedent for this determination, that protected speech can lose its First Amendment-protected status based on a later reading of that speech,” the panel’s ruling said.
Undecided Issues
As a practical matter, the Fourth Circuit’s ruling does not settle the case. If the university does not appeal, the district court will now have the task of determining whether Mr. Adams’s commentaries were a substantial factor in the university’s decision not to promote him and whether his speech should have been protected because his interest in speaking on matters of public concern outweighed the university’s interests in determining for itself how to best serve the public.
Robert R. Hoon, general counsel for the university, issued a statement on Wednesday that said he was pleased that the professor’s claims of violations of his religious-freedom and equal-protection rights had been dismissed. Noting that the appeals-court panel chose to send the case back to the district court for further review, he said the ruling “is not a victory for either the plaintiff or the defendant.”
The AAUP has been concerned enough about the implications of federal courts applying the Garcetti decision, which involved a dispute within a district attorney’s office, to public colleges that it has launched a national campaign urging such institutions to adopt policies or contractual provisions shoring up faculty members’ speech protections. Before the Fourth Circuit decision, however, about the best news the AAUP had received on the legal front had been a November ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in a case involving an emeritus professor at the University of California at Irvine.
In that case, rather than squarely applying Garcetti, the Ninth Circuit held that the free-speech rights of professors are “far from clearly established” in the wake of the Garcetti decision.
