The Review

The 2006 Supreme Court case Garcetti v. Ceballos has long struck proponents of academic freedom as a ticking time bomb. The decision limited the First Amendment protections enjoyed by public employees when speaking in the course of their job duties (as opposed to speaking extramurally, as citizens, which remains well-protected). Although the case did not involve higher-ed personnel, the danger posed to the speech rights of public-college faculty members is obvious. After all, what are scholars doing in the classroom or in their research if not speaking pursuant to their job duties? In a dissenting opinion, Justice David Souter named the threat: “The ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities.”

Writing for the majority, Justice Anthony Kennedy assured that it did not: “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship and teaching.” But, as the Princeton political and legal theorist Keith Whittington explained in our pages, a recent decision by the Fourth Circuit imperils that exception. In Porter v. Board of Trustees of North Carolina State University, a 2-1 majority determined that a faculty member named Stephen R. Porter, who had argued fiercely against including a question about diversity in student course evaluations, was not protected from adverse employment consequences on the grounds of academic freedom. The court reasoned that, since Porter “was not teaching a class nor was he discussing topics he may teach or write about as part of his employment,” his objections to proposed changes in course-evaluation policy were not matters of academic freedom.

Whittington disagrees. In a recent article titled “What Can Professors Say on Campus? Intramural Speech and the First Amendment,” he develops a theory of academic freedom that would place speech like Porter’s — job-related emails, office memos, comments during faculty meetings, and so forth — squarely within its protection. The first thing to understand is why there’s any ambiguity. The American Association of University Professors’ 1940 statement on academic freedom establishes that professors “are entitled to full freedom in research and in the publication of the results"; in “the classroom in discussing their subject"; and “when they speak or write as citizens.” That trinity — freedom of research, freedom of teaching, and freedom of extramural speech — has since been formalized across the college landscape. In the case of public colleges, a series of Supreme Court decisions in the ‘50s and ‘60s established a strong First Amendment interest in academic freedom so defined.

Intramural speech of the kind involved in Porter isn’t, at first glance, included in the AAUP’s 1940 statement. But Whittington argues that “scholarly research and classroom instruction are best read as stand-ins for a broad set of activities and expressions that are ‘related to’ those core scholarly functions,” including speech like Porter’s. Whittington depends on the useful definition of intramural speech offered by Matthew Finkin and Robert Post in their book For the Common Good: Principles of American Academic Freedom: It is “faculty speech that does not involve disciplinary expertise but is instead about the action, policy, or personnel of a faculty member’s home institution.”

The Fourth Circuit decided that such speech isn’t properly academic, and therefore not insulated from Garcetti’s weakening of public-employee speech. To Whittington, this is a perversely narrow construal of academic freedom. As the AAUP stated formally in 1994, “the protection of the academic freedom of faculty members in addressing issues of institutional governance is a prerequisite for the practice of governance unhampered by fear of retribution.” Educational policies as intimately connected to the business of teaching and scholarship as student evaluation materials, Whittington suggests, ought to be considered matters of institutional governance well within academic freedom’s pale. Moreover, the Supreme Court’s mid-century concern for academic freedom was not narrowly confined to classroom or research; rather, a more general “specter of forced conformity in academia … worried the justices of the era,” as Whittington puts it. Matters of intense ideological contestation like specific diversity efforts are especially vulnerable to forced conformity. Whittington concludes that, if intramural speech about such matters does not merit protection, then “a professor who defended such a policy at New College in Florida might well find herself fired for voicing ideas repugnant to the current trustees and administration. On the other hand, a professor who criticized such a policy at a state university in California might find herself fired for voicing ideas repugnant to the majority of her faculty colleagues as well as the university administration.”

The solution, Whittington says, is to bring intramural academic speech “under the umbrella of the Garcetti exception for academic freedom.” The Garcetti exception, recall, is the idea that faculty members are exempted from Garcetti’s failure to find that public employees have robust job-related speech protections. A Sixth Circuit case, Meriwether v. Hartop, found such an exception with respect to classroom speech; a Ninth Circuit case, Demers v. Austin, found that “Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.” Whittington makes a strong case that unless intramural speech of the sort at issue in Porter is not similarly excepted, Garcetti remains a severe threat to the spirit and practice of academic freedom.

Read Keith Whittington’s “What Can Professors Say on Campus?” and “A Recent Appeals-Court Ruling Imperils Academic Freedom.”

Next week, I’ll explore the question of how academic freedom extends to administrators, or doesn’t.

Recommended

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• “Moral philosophy was condemned to become what it has become, a scene of theoretical disputes between fruitlessly contending rival parties.” In Church Life Journal, Alasdair MacIntyre on “having survived the academic moral philosophy of the 20th century.”
• “It was at Mansour’s apartment that Matta, who had been exiled from Breton’s disputatious inner circle, crept back into its good graces after allowing himself to be branded by a hot iron with the word SADE, in honor of the 18th-century pornographer and occasional political prisoner Donatien Alphonse François, the Marquis de Sade.” In the New York Review of Books, Anahid Nersessian writes about the Joyce Mansour renaissance.

Write to me at len.gutkin@chronicle.com.

Yours,

Len Gutkin