The U.S. Court of Appeals for the Third Circuit held on Friday that a public-college professor’s statements can be considered job-related, and thus not “citizen speech” protected by the First Amendment, even if they were made in connection with activities not specifically covered by the professor’s contract.
Affirming a decision by a lower court last year, a three-judge panel of the Third Circuit, which covers several mid-Atlantic states, ruled that Delaware State University was entitled to fire a communications professor for statements he made about a university presidential search, in reference to his organizing a campus breakfast, and in relation to advising his students.
The court rejected an assertion by the professor, Wendell Gorum, that his job description did not cover advising a student because doing so went beyond his responsibilities as specified in a collective-bargaining agreement. Citing a 2006 Supreme Court ruling in the case Garcetti v. Ceballos, involving the disciplining a Los Angeles deputy district attorney, the appeals court unanimously said the definition of job-related speech is a practical one, and formal job descriptions often bear little resemblance to the duties people actually perform.
The Third Circuit panel also rejected Mr. Gorum’s argument that all the speech at issue in the case involved matters of public concern that qualified it for First Amendment protection. The judges held that Mr. Gorum had failed to show that he believed any public issues were at stake in advising a student-athlete during disciplinary proceedings for weapons possession, and similarly had failed to demonstrate that he was dealing with a matter of public concern—or had even spoken publicly—in rescinding an invitation to Allen L. Sessoms, then the university’s president, to speak at a 2004 prayer breakfast.
The Delaware State case was being followed by many advocates of free speech and academic freedom. They are worried about a recent wave of court decisions that have applied the Supreme Court’s Garcetti ruling to academic settings and limited how much public-college faculty members can count on the First Amendment to protect speech connected with their jobs.
Such advocates had not publicly rallied behind Mr. Gorum, however, because of the circumstances of his case.
The university said it had fired him for doctoring student grades, and the appeals court described his First Amendment claims as “makeweight attempts” to fight his dismissal for violating the university’s academic code. It held that he would have been fired even if he had not made any of the statements that he cited in claiming he was the victim of illegal retaliation.
