In a case emerging as a major test of the free-speech rights of faculty members at public colleges, the U.S. Court of Appeals for the Seventh Circuit is being asked to decide whether Northeastern Illinois University could legally punish a professor who advised student activists by deeming her own statements of protest to be job-related.
The dispute involves a lawsuit filed against the university by Loretta Capeheart, a tenured associate professor of justice studies who has advised the university’s student Socialist Club and was denied promotions and a faculty award after clashing with administrators over her protest activities. The American Association of University Professors is concerned enough about the potential ramifications of a ruling against Ms. Capeheart that on Thursday it filed a friend-of-the-court brief urging the appeals court to hold her speech to have been protected under the First Amendment.
The lawsuit accuses Sharon K. Hahs, the university’s president, Lawrence P. Frank, its provost, and Melvin C. Terrell, who was vice president for student affairs during the period covered by the litigation, of violating Ms. Capeheart’s First Amendment rights by retaliating against her for her speech. The lawsuit separately accuses Mr. Terrell of defamation for publicly stating that Ms. Capeheart had been accused by a student of stalking, even though the student had not filed a formal charge against her and never did end up doing so.
The question of whether Ms. Capeheart’s protest-related speech was constitutionally protected is what has drawn the attention of the AAUP and other advocates of academic freedom and First Amendment rights.
The case is one of several in which the federal courts have grappled—and sometimes differed—on the question of how to apply 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.
The Garcetti case involved a district attorney’s office, not a college, and the Supreme Court’s majority opinion explicitly put off the question of whether the decision should apply to speech related to scholarship or teaching. Nevertheless, several lower courts have cited the Garcetti ruling in decisions concluding that public colleges had the right to discipline faculty members for speech deemed to be related to their jobs. Among the few victories for those who argue Garcetti should not apply to academic speech was an April ruling by the U.S. Court of Appeals for the Fourth Circuit, which held 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 journalistic writings that university administrators had deemed job-related.
The speech at issue in Ms. Capeheart’s case is connected to her criticisms of U.S. foreign policy, her opposition to the February 2007 arrests of students protesting at a Central Intelligence Agency recruiting event, and her complaints that the university was doing a poor job of recruiting Hispanic faculty members and students. Her lawsuit claims that administrators threatened to take disciplinary action against her when she protested military recruitment at an April 2006 job fair on Northeastern Illinois’s campus, and were similarly perturbed by her efforts to contact administrators and rally faculty members in defense of the students arrested for protesting CIA recruitment in 2007. It accuses administrators there of also seeking to retaliate against her for publicly complaining, when the Illinois legislature’s Latino Caucus visited the campus in September 2006, that the university’s failure to have enough money to hire more Hispanic faculty members stemmed from excessive administrative spending.
In July 2007 the faculty of the university’s justice-studies program, which was being transformed into an independent department, overwhelmingly voted for Ms. Capeheart to lead that new department, but Mr. Frank, the university’s provost, declined to appoint her to the post. Administrators also denied her a seat on the search committee to select the department’s new chair, and in the spring of 2007 denied her an award for faculty excellence, even—she alleges—while granting awards to other faculty members who were no more qualified.
Last February, Judge Blanche M. Manning of the U.S. District Court for the Northern District of Illinois rejected Ms. Capeheart’s First Amendment claims.
On the question of whether the professor had suffered retaliation for her criticism of the university’s Hispanic recruitment efforts, Judge Manning held that, although such speech was not connected to Ms. Capeheart’s professional duties, too much time had elapsed between the September 2006 incident and the retaliatory acts that she had alleged for the latter to be blamed on the former.
Regarding Ms. Capeheart’s speech related to the CIA and military recruitment, Judge Manning held that Ms. Capeheart could not claim that such speech was protected under the First Amendment because she made such statements pursuant to her professional duties. The judge’s ruling said Ms. Capeheart herself had acknowledged “her involvement in protests over recruiting and her advocacy on behalf of student protesters were part of her role as adviser to the Socialist Club.”
Both Ms. Capeheart’s appeal and the AAUP’s brief on her behalf argue that the Garcetti decision’s holding regarding the job-related speech of public employees should not be applied to such academic disputes. They also challenge the lower court’s conclusion that the speech at issue was job-related.
The AAUP’s brief says: “The message of the district court’s ruling is chilling and clear: University administrators need not tolerate outspoken faculty dissent on matters of broad public concern or on the university’s institutional response to those concerns.”
Dana Navarro, a spokeswoman for Northeastern Illinois, issued a statement on Friday that said her institution “is dedicated to the exchange of ideas and free speech both on campus and within the greater society,” and it firmly believes that “at no time were Dr. Capeheart’s First Amendment rights abrogated.”
“Northeastern Illinois University is pleased that the district court ruled in its favor and on appeal will urge the Seventh Circuit to affirm that decision,” the statement said.
