Courts in the United States either do not understand shared governance at colleges, or really enjoy irony. Here is the brief version of what I learned.
Historically courts applied the Pickering balancing test to determine whether a public employee’s speech was permissible. The Pickering test asks the courts to decide whether the rights of the employee commenting on public policy as an individual outweigh the rights of the state as an employer in administering efficient services. A 2006 Supreme Court decision in Garcetti v. Ceballos further restricted the speech of public employees in that the speech could not occur as part of the employee’s public duties. The Court reserved judgment on whether Garcetti applies to professors.
Here is where the twist comes. Some professors as part of their duties participate in shared governance wherein some hiring and policy decisions are made for the campus. Some professors have been disciplined or retaliated against for speech as part of shared governance (Hong v. Grant 2007; Renken v. Gregory 2008; Gorum v. Sessoms . . . 2009, Sadid v. Idaho State University 2009). Courts have upheld the discipline, or retaliation because shared governance is part of the employee’s duties and so Garcetti applies. In other words an employee must give his, or her opinion as part of their job duties and is subject to retaliation for expressing his, or her opinion. Hopefully the Supreme Court can exercise common sense and make an exception for shared governance if any of these cases make it to the Supreme Court.
There was one positive note. In Kerr v. Hurd a federal court ruled that Garcetti does not apply to reasonable speech in the classroom. Kerr claimed he was dismissed as an obstetrics professor for advocating the use of forceps in delivery. The decision actually made a reference to Stalin’s enforcement of Lysenko biology as a reason not to discipline faculty for offering differing opinions.
I want to thank AFT General Counsel David S. Strom for preparing the summary of these cases I used to make this post. I also want to thank him for presenting at the AFT Higher Education Conference.
Looks like Kerr v. Hurd is a positive sign for academics in the post-Garcetti world. Are you aware of any other cases recent academic cases dealing with the application of the First Amendment to faculty?
The AFT packet cited two more cases.
In Adams v. Trustees of University of North Carolina-Wilmington (East District Ct.. N.C. March 15, 2010) Adams included some controversial blog pieces in his application for tenure. (It’s not clear why he did this.) When tenure was denied the court ruled that since he included them that he considered them part of his job and their content could be used for the denial of promotion.
In Nichols v. University of Southern Mississippi, Nichols made negative comments about homosexuals to a student who was gay after class. USM dismissed him. He tried to claim that the comments were made after class and so he was speaking as a private citizen. The courts ruled it was classroom speech and that USM, as his employer, could regulate it.