Contributions

Sustaining Academic Freedom: The Need to Redefine the Threshold Question in First Amendment Claims Brought by Public University Professors

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.

* * * * *

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, 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, 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, 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.

* * * * *

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.


Rec­om­mend­ed Cita­tion: Emi­ly Sev­er­al, Sus­tain­ing Aca­d­e­m­ic Free­dom: The Need to Rede­fine the Thresh­old Ques­tion in First Amend­ment Claims Brought by Pub­lic Uni­ver­si­ty Pro­fes­sors, 2018 N.Y.U. Pro­ceed­ings 3, http://proceedings.nyumootcourt.org/2018/02/sustaining-academic-freedom-the-need-to-redefine-the-threshold-question-in-first-amendment-claims-brought-by-public-university-professors/.

Notes:

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.
33. Id.
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.
51. Id.
52. Id.
.53. Id.
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.