Appeals to the principle of academic freedom may sway campus debates over speech, but college instructors might want to think twice before using them as the basis of lawsuits against their employers.
An analysis of 50 years’ worth of court rulings in faculty members’ First Amendment lawsuits against colleges has found that the instructors lost a solid majority of the time, and their prospects of winning declined as disputes dragged on into appeals courts.
Moreover, the study of more than 200 federal and state court decisions found, only a handful of court rulings hinged on the academic-freedom definitions and standards published by the American Association of University Professors and widely used by colleges. Being censured by the AAUP appeared to do little to make colleges vulnerable to First Amendment lawsuits.
“Courts do not have the same way of thinking about faculty speech as professors and instructors do,” said the study’s author, Michael H. LeRoy, a professor of labor and employment law at the University of Illinois at Urbana-Champaign and a lecturer at the University of Chicago’s law school.
“Many times faculty members thought that they had an absolute right to any kind of expression under the First Amendment, but courts do not accept that at all,” Mr. LeRoy said this week in an interview. The instructors’ low success rate in courts, he said, might be less a reflection of the weakness of their First Amendment protections than the willingness of many to claim such protections in situations where they do not apply.
Mr. LeRoy said “surprisingly few” of the cases he analyzed actually involved the expression of controversial ideas, the activity at the heart of the First Amendment. “The most common scenarios involved an element of faculty-member harassment of others, and also highly confrontational behavior,” he said in an email. In situations where faculty members argued that the First Amendment protected speech that others regarded as harassing or discriminatory, the college was left in the position of having “to pick its lawsuit,” he said.
Mr. LeRoy added, however, that his examination of court rulings offers only a partial glimpse of instructors’ success rates in such legal challenges, because many cases are resolved out of court.
“A lot of cases that would otherwise be successful are settled by colleges and universities before they go to court,” said Aaron Nisenson, senior counsel at the AAUP. Often, he said, the cases that end up getting heard by courts are “the difficult ones.”
Among his more counterintuitive conclusions, Mr. LeRoy determined that courts ruled against tenured professors even more frequently than they ruled against nontenured instructors. He speculated that this finding did not reflect a weakness in tenure protections, but a strength, in that colleges might be relatively hesitant to tread on tenured faculty members in ways that could spawn successful legal challenges.
Compared to the cases involving nontenured instructors, those involving tenured professors were less likely to be a response to the faculty member’s dismissal, and more likely to involve a more limited disciplinary action, such as course reassignments or a paid suspension.
Tallying Scores
Mr. LeRoy, the paper’s author, was hardly a neutral bystander in one recent, high-profile controversy over academic speech. Last September he led an effort to gather faculty signatures on a petition expressing support for Phyllis M. Wise, his campus’s chancellor, after she came under fire for rescinding an offer of a tenured professorship to Steven G. Salaita over his Twitter posts harshly attacking Israel.
In an article published last month in the Notre Dame Law Review, he challenged Mr. Salaita’s argument, in a federal lawsuit against the University of Illinois, that such tweets were protected under the First Amendment.
In an interview this week, however, Mr. LeRoy characterized his newest, unpublished analysis of decisions in instructors’ First Amendment lawsuits as offering an exhaustive and straightforward summary of how the courts had ruled in every applicable case he could find. “I don’t filter out the ones I don’t like,” he said. “I take them all.”
Mr. Nisenson, of the AAUP, reviewed a draft copy of Mr. LeRoy’s paper and said the findings did not surprise him. “There is a lot of research out there that says, generally, plaintiffs in employment cases fare extremely poorly,” Mr. Nisenson said, pointing to other research that showed discrimination lawsuits had a similarly low success rate.
Mr. Nisenson challenged, however, Mr. LeRoy’s apparent assumption that the scarcity of explicit references to the AAUP’s standards as a basis for court rulings meant the standards had played little role in the legal disputes. Often, he said, such disputes hinge on the court’s interpretation of college policies that were based on the association’s standards.
Mr. LeRoy conducted his analysis by using the Westlaw Internet service, federal government databases, and case citations within legal rulings to try to track down every federal or state court ruling since 1964 in cases in which college instructors accused their employer of violating their First Amendment right to free speech. He ended up analyzing a total of nearly 340 decisions in about 210 separate cases.
Because the First Amendment covers government institutions, he focused on public colleges. Although New York state law applies the First Amendment to private colleges, he excluded rulings from that state dealing with such institutions. The analysis took into account pretrial motions, court decisions, and rulings on appeal.
Mr. LeRoy ended up classifying just over 73 percent of the rulings he examined as college wins, meaning that the court dismissed the faculty member’s First Amendment claim. (In many such cases, the faculty member nonetheless prevailed on other legal grounds.) He classified about 14 percent of all rulings as wins for the faculty members, and the remaining 13 percent as partial wins, as a result of the faculty members’ winning at early stages but losing in the end.
Mr. LeRoy found that men and women were about equally likely to win, although more than three times as many men as women were listed as the plaintiffs in such litigation. His analysis said he had been unable to determine how much the gender disparity in lawsuits filed reflected historical inequalities in faculty employment, a greater propensity of men to litigate, more uninhibited speech behaviors by men, or some other force at work.
Colleges’ chances of winning on appeal rose sharply in the wake of a 1994 U.S. Supreme Court ruling, Waters v. Churchill, which expanded the realm of speech that public agencies could act to restrict, the analysis found. Whereas such agencies had previously been required to show speech had disrupted their operations, under the Waters decision they were given leeway to act in response to mere predictions that speech would be disruptive. Although the Waters case involved a nurse’s lawsuit against a hospital, lower courts soon began citing the ruling in disputes between public colleges and their instructors.
Mr. LeRoy’s analysis also examined the outcomes of such First Amendment cases based on the type of speech at issue. The most common disputes were those he classified as “campus critic” cases, involving statements that, for example, pertained to union activities or opposed administrators’ decisions. In the seven categories of speech he devised, colleges prevailed in court from 64 percent to 78 percent of the time.
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
