by Emily Several1
A professor’s work does not end when they leave the classroom; professorship may include teaching, researching, serving as an advisor, attending subject matter events, keeping abreast of new developments in one’s field, or serving on university committees and in administrative roles.2 When a professor’s area of scholarship melds with professional responsibilities, the line between her personal and professional expression becomes blurred. This can cause problems when a professor’s speech conflicts with the views of their employer, especially in a public university setting. While the First Amendment prohibits public universities from making adverse employment decisions based on employee speech made in a personal capacity, this protection does not extend to speech made pursuant to official professional duties.3 In Garcetti v. Ceballos, the Supreme Court held that whether an employee’s speech is pursuant to her official duties is the threshold requirement for determining whether a public employer’s termination of an employee violated his or her First Amendment rights.4 The Supreme Court suggested that this distinction may not apply to professors’ speech because expression related to academic scholarship or classroom instruction implicates “additional constitutional interests.”5 However, without a definite answer from the Court, circuit courts have issued varying decisions on when the First Amendment prevents public universities from terminating professors because of their expression.6 Not only does this variance in application create confusion, but it has also allowed some courts to use the official duties requirement to severely curtail academic freedom at public universities. The Fourth Circuit has sought to preserve academic freedom by holding that when a case involves professor speech on academic work, unrelated to specific employment duties, the professor’s claim passes Garcetti’s threshold question and instead, the Pickering-Connick analysis applies.7 However, the Third Circuit has found that Garcetti’s threshold question bars a professor’s First Amendment claim if the professor’s speech was connected to the university in anyway, whether it was a specified duty or not.8 This Contribution ultimately argues that in order to preserve academic freedom on university campuses, the Supreme Court should establish an exception to Garcetti’s application to First Amendment suits brought by professors at public universities.
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The tests to determine whether terminations violate government employees’ free speech rights under the First Amendment far precede the Garcetti decision. In 1968, the Court in Pickering v. Board of Education created a fact-based test that balanced the interest of the employee with the interests of public employers to analyze public employees’ First Amendment claims against their employers.9 In creating this test, the Court emphasized that public employees do not surrender their First Amendment rights simply because they work for a public employer.10 However, the Court recognized that the State also has an interest in regulating employees’ speech in the interest of the operation and administration of public work places.11 In Pickering, for example, the fact that the plaintiff-teacher spoke on a matter of public importance (whether the school system required additional funds) weighed heavily in favor of the employee.12 Although the Court did not require that protected speech involve a matter of public importance for First Amendment protection, the majority’s emphasis on the content of the employee’s speech shaped the test that exists today.
Fourteen years later, the Court clarified the Pickering test in Connick v. Myers, constructing a threshold question for the balancing analysis.13 In Connick, a New Orleans district attorney terminated an assistant district attorney for opposing a suggested transfer to a different section of the criminal court and for distributing questionnaires to colleagues that asked about their opinions on the “office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.”14 The former assistant district attorney, Sheila Myers, filed suit alleging that her termination violated her First Amendment right of free speech.15 In analyzing her claim, the Court stated that “the repeated emphasis in Pickering on the right of a public employee ‘as a citizen, in commenting upon matters of public concern,’ was not accidental,”16 but rather demonstrated that the First Amendment reflects the idea that “speech concerning public affairs is more than self-expression; it is the essence of self-government.”17 The Court found that if the matter does not relate to political, social, or other concerns of the community, then the State has “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”18 Therefore, even unreasonable discharges of employees whose speech is based on a personal concern are not within the Court’s domain.19 After Connick, the Court made clear that an employee-plaintiff must successfully prove that his or her speech was a matter of public concern before even reaching the Pickering balancing test.20
Garcetti incorporated the Court’s tests laid out in Pickering and Connick and added another layer to the analysis of what employee plaintiffs must prove before a court grants them relief. In Garcetti, a supervising deputy district attorney, Richard Ceballos, found inaccuracies in a police affidavit used to obtain a search warrant in the case.21 He notified his supervisors, petitioners in the case, of the errors and wrote a disposition memorandum recommending dismissal, but his supervisors proceeded with the prosecution.22 The defense moved to challenge the warrant and at that hearing Ceballos testified as to what he observed in the warrant.23 Subsequently, Ceballos was terminated and he filed suit, claiming that this termination violated his rights under the First Amendment.24 While the Ninth Circuit held that Ceballos’s claims passed the Pickering-Connick analysis,25 the Court found that before reaching these analyses, policy and past precedent require that a court decide whether the employee’s speech at issue was made pursuant to official duties.26 If an employee speaks pursuant to her official duties and then faces adverse employment action by a government employer, the First Amendment does not protect the speech because a government entity “has broader discretion to restrict speech when it acts in its employer role,” as long as the restricted speech has some potential effect to the employer’s operations.27
Consequently, the Court created Garcetti’s limitation on First Amendment public employee claims; before applying the Pickering-Connick analysis, courts must decide whether an employee spoke pursuant to official duties. Under this new standard, Ceballos’s speech did not receive First Amendment protection because his expressions were made pursuant to official duties.28 Restricting public employees’ speech in this way complies with First Amendment precedent because public employees still retain their rights in their capacity as private citizens, while allowing government employers to efficiently manage their operations.29 Garcetti, therefore, set out a new test for analyzing public employees’ First Amendment claims.
Justice Souter, joined by Justice Stevens and Justice Ginsburg, dissented in Garcetti, disagreeing with the Court’s blanket application of this threshold question in all public employee suits based on First Amendment claims.30 Citing a long history of the Court’s commitment to safeguarding academic freedom, the dissenting justices feared that if the Court meant to include public university professors’ First Amendment claims, the majority would “imperil First Amendment protection of academic freedom in colleges and universities, whose teachers necessarily speak and write ‘pursuant to … official duties.’”31 Such a blanket approach could undermine the Court’s longstanding protection of academic freedom if applied to professors at public universities.
For the Court, Justice Kennedy responded to these concerns, acknowledging that the Court’s employee-speech jurisprudence does not fully account for expression related to academic scholarship or classroom instruction, since these areas of employment implicate “additional constitutional interests.”32 By stating that the Court “need not, and for that reason do[es] not, decide whether the analysis  conduct[ed] today would apply in the same manner to a case involving speech related to scholarship or teaching,” Justice Kennedy left it ambiguous whether the Garcetti limitation applies to public university professors’ speech.33
Circuit courts post-Garcetti, have failed to reach a consensus as to when, and to what extent, Garcetti’s reservation for academic freedom to the context of professor speech should apply.34 The Third and Seventh Circuits have taken the stance that applying Garcetti to public university professors’ expression relevant to their scholarship does not threaten academic freedom or the professor’s First Amendment rights.35 When a professor speaks in this capacity, the professor “act[s] pursuant to his or her official duties,” so the professor speaks on behalf of the university employer instead of in her own capacity.36 Under Garcetii, an employer has the right to restrict this speech to maintain efficient operations.37 While the Seventh Circuit has suggested that professor speech made outside the classroom may escape Garcetti and be eligible for First Amendment protection,38 the Third Circuit contradicts this idea by construing a professor’s duties to be very broad, encompassing any action connected to the university to be within the Garcetti limitation.39 Therefore, at least in the Third Circuit, professors’ speech connected in any way to their discipline or role at the university may be restricted by their employer and serve as a legitimate basis for an adverse employment decision.
Realizing the potential chilling effect Garcetti could have on public university professors’ speech, the Fourth Circuit worked around Garcetti’s limitation in Adams v. Trustees of the University of North Carolina-Wilmington.40 To arrive at a finding that the professor’s speech here did not fail Garcetti, the court was forced to draw confusing distinctions on what constitutes a professor’s “official duty,” revealing the need for the Supreme Court to clarify whether Garcetti applies to public university professors’ expression.41 In Adams, the court distinguished the various duties of a professor at a public university, reasoning that Garcetti only applies when a professor speaks pursuant to administering a university policy.42 Adams was an associate professor at the university of the state of North Carolina who vocalized and published his views on political and social issues at the university and in society at large.43 Despite strong teaching reviews, the university denied Adams’ application for full professorship and Adams filed First Amendment claims against the University.44 While the district court found that Adams’s act of listing his publications and speeches on his promotion application converted the speech at issue into unprotected speech under Garcetti,45 the court of appeals ruled that this was an error; “[n]othing about listing the speech on Adams’ promotion application changed Adams’ status when he spoke or the content of the speech when made.”46 Reversal of the district court’s decision depended on the courts’ different interpretations of when a professor speaks pursuant to official duties, similar to the debate between the circuits on how the Garcetti limitation applies to professors’ speech. The Fourth Circuit found that Adams’s speech did not qualify as pursuant to his official duties and passed Garcetti; while the university paid Adams to be a scholar and a teacher, Adams’ speech was “intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams’ assigned teaching duties…or any other terms of employment found in the record.”47 Since the “plain language of Garcetti” left open the question of whether its limitation applies when the speech at issue relates to a professor’s scholarship or teaching, the court could have refused to apply Garcetti to Adams’ case and moved straight to the Pickering-Connick analysis.48 The court even states that applying Garcetti to a situation like Adams’s “could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment.”49
Because of the ill-fit of Garcetti to academic speech, the Fourth Circuit’s decision rested on a shaky distinction: according to the court, Adams’ speech was not pursuant to official duties under Garcetti because his speech was “intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams’ assigned teaching duties…or any other terms of employment found in the record.”50 However the court also stated that Garcetti prevents a First Amendment claim by a professor if the professor’s speech had any “direct application to [employee] duties.”51 Since universities often demand broad responsibilities from professors, such as scholarship or service on committees, the court of appeals could have legitimately classified Adams’s speech as having a “direct application to employee duties.”52 The university paid Adams to be a scholar in his field and his publications were a direct outgrowth of his professional responsibility. To resolve the uncertainty surrounding Garcetti’s application to professor First Amendment claims, the Supreme Court should hold that Garcetti does not apply in this context.
In order to protect academic freedom and further intellectual progress at public universities, the Supreme Court should build on its response to Justice Souter in Garcetti and explicitly state that Garcetti’s limitation does not apply to public professors’ speech related to scholarship or instruction. While universities will argue that they need to control employee speech in order to run an efficient operation, exempting professor speech from Garcetti’s threshold question does not mean that university defendants will lose these claims or lose control of their operations; professors’ claims will still have to pass the Pickering-Connick analysis. The Pickering-Connick analysis “permits a nuanced consideration of the range of issues that arise in the unique genre of academia,”53 while still taking into account government employers’ interest in efficient operations. Without Garcetti’s limitation, professor plaintiffs would still have to prove that they spoke regarding a matter of public concern and the university’s interests would still be weighed against the interest of the employee. By exempting professor speech from Garcetti’s limitation, courts can focus on the public importance of the expression and weigh the employers’ interests, rather than spending time making indiscriminate decisions as to whether a professor spoke pursuant to official duties.54
If Garcetti’s limitation applied, public universities would have broad power to regulate professors’ expression, since any act related to their discipline could be construed as pursuant to the professor’s official duties. The power to regulate speech in this way severely impinges on academic freedom; professors further “universit[ies’] commitment to the pursuit of truth” and advance students’ ability to think critically.55 Professors’ academic speech in the higher education setting occupies a special niche of the First Amendment right to free speech since society can benefit from professors’ ability to specialize in an area and disseminate their specialized learnings freely.
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The Court has a longstanding tradition of protecting academic freedom in public universities for this reason.56 However, the current confusion with regards to whether an academic exception to Garcetti exists and how it applies threatens the future of an educated society. By clearly stating that the Garcetti threshold question does not apply in the public higher education setting, the Supreme Court would resolve the circuit split and protect academic freedom. This would allow the government as an employer to continue to regulate the workplace without compromising the important role of professors in furthering intellectual development.
1. Emily Several is a 3L at New York University School of Law. This piece is a commentary on the 2017 Problem at the Wagner National Labor and Employment Law Moot Court Competition hosted by the New York Law School in New York, New York. The problem dealt with whether a public university’s Board of Trustees violated a professor’s First Amendment rights, pursuant to 42 U.S.C. § 1983, when it denied her tenure based on a poem she read at a school-sponsored event. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of the argument assigned to the team the author represented at the Wagner National Labor and Employment Moot Court Competition.
2. See Responsibilities of the Faculty Member, N.Y.U., https://www.nyu.edu/faculty/governance-policies-and-procedures/faculty-handbook/the-faculty/other-faculty-policies/responsibilities-of-the-faculty-member.html (last visited Jan. 26, 2018).
3. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
4. See id.
5. Id. at 425.
6. Compare Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550 (4th Cir. 2011) (holding that a professor at a public university cannot be terminated for speech related to their academic work) with Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009) (holding a professor at a public university can be terminated for speech made related to the university in any way).
7. See Adams, 640 F.3d at 564.
8. See Gorum, 561 F.3d at 187-88.
9. See Pickering v. Bd. of Educ. Of Tp. High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968).
10. See id. at 567.
11. See id. at 568.
12. See id. at 574.
13. See Connick v. Myers, 461 U.S. 138, 143 (1983).
14. Id. at 141.
15. See id.
16. Id. at 143.
17. Id. at 145.
18. Id. at 146.
19. See id. at 147 (“When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee on matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum” to review the agency’s dismissal).
20. See id. at 146.
21. See Garcetti, 547 U.S. at 413-14.
22. See id. at 414-15.
23. See id.
24. See id. at 415.
25. See id. at 415-16.
26. See id. at 421.
27. Id. at 418.
28. See id. at 426.
29. See id. at 421.
30. See id. at 438.
31. Id. at 438 (Souter, J., dissenting). See also Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”); Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’” (quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960))).
32. Garcetti, 547 U.S at 425.
34. Compare Adams v. Trs. of the Univ. of N. C.-Wilmington, 640 F.3d 550 (4th Cir. 2011) with Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009).
35. See, e.g., Edwards v. Cal. Univ. of Pa., 156 F.3d 488 (3d Cir. 1998); Gorum, 561 F.3d 179; Piggee v. Carl Sandburg Coll., 464 F.3d 667 (7th Cir. 2006); Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008).
36. Renken, 541 F.3d at 773 (“Only if Renken was speaking as a citizen and not as an employee, will we ‘inquire into the content of the speech’ to ascertain whether his speech touched on a matter of public concern to determine whether it is protected speech”).
37. See Garcetti, 547 U.S at 425.
38. See, e.g., Piggee, 464 F.3d at 671.
39. See Gorum, 561 F.3d at 187-88.
40. See Adams v. Trs. of the Univ. of N. C.-Wilmington, 640 F.3d 550, 564 (4th Cir. 2011) (“applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended”).
41. See id. at 563.
42. See id. at 563 (holding Garcetti may apply when a faculty member’s speech has to do with her assigned duties, but not when her speech involves scholarship and teaching unrelated to the professor’s assigned employment duties).
43. See id. at 553.
44. See id. at 553-56.
45. See id. 561-62.
46. Id. at 562.
47. Id. at 564.
48. See id. at 563.
49. Id. at 564.
50. Id. at 564.
54. See Connick, 461 U.S. at 146.
55. J. Peter Byrne. Academic Freedom: A “Special Concern of the First Amendment,” 99 Yale L.J. 251, 265 (1989) (noting that academic freedom demonstrates “the university’s commitment to the pursuit of truth”).
56. See supra note 40.