Federal District Court in California Rejects Using 'Garcetti' to Dismiss Professor's First Amendment Claim in FIRE Case
December 21, 2009
by Azhar Majeed
Here on The Torch, we've tracked the effect of the United States Supreme Court's ruling in Garcetti v. Caballos, 547 U.S. 410 (2006), since the opinion was issued. In Garcetti, the Court held that when public employees engage in expressive activity pursuant to their official duties, that speech is normally not protected by the First Amendment. In an aside, however, Justice Kennedy's opinion reserves the question of whether or not Garcetti applies to public university faculty:
There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. 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 or teaching.Kennedy's important remark was prompted by an argument made by Justice Souter in his dissenting opinion:
This 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, whose teachers necessarily speak and write "pursuant to official duties." See 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. Board 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))); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (a governmental enquiry into the contents of a scholar's lectures at a state university "unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression--areas in which government should be extremely reticent to tread").Even though Garcetti in theory carves out a potential exception to its holding for professors, some lower courts disappointingly have failed to preserve such an exception in practice. FIRE Jackson Legal Fellow Kelly Sarabyn explored one district court's failure to limit Garcetti in the public university context last year, in the case of Juan Hong v. Stanley Grant, et al., 516 F. Supp. 2d 1158 (C.D. Cal. 2007), currently on appeal to the Ninth Circuit. The American Association of University Professors (AAUP), concerned about the potential for more such decisions in the wake of Garcetti and about the erosion of academic freedom that could result, has undertaken a vigorous national campaign aimed at preserving academic freedom in the face of what it calls "judicial hostility or indifference."
Given these trends, it is heartening to report that a federal court in California has rejected a community college district's attempt to apply Garcetti to strip a professor of First Amendment protection for her classroom speech. In Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009), the federal district court ruled, contrary to the college district's argument, that the professor, June Sheldon, did not lose her First Amendment rights merely because her speech took place during classroom instruction. Sheldon lost her adjunct science teaching position at San Jose City College as well as the opportunity to teach courses the next semester following remarks she made to her class about the "nature versus nurture" debate with regard to why some people are homosexuals. Though her comments were part of a class discussion about the topic, some students complained that the way she embraced the "nurture" side of the argument was offensive, leading the college to take the adverse employment actions against her. (FIRE took up Sheldon's case in 2008.)
In Sheldon's subsequent suit under 42 U.S.C. 1983 (a federal statute providing a cause of action for the vindication of federal constitutional and statutory rights), the federal court rejected the college's argument, based on Garcetti, in favor of dismissing Sheldon's First Amendment claims altogether. Crucially, the court observed that "Garcetti by its express terms does not address the context squarely presented here: the First Amendment's application to teaching-related speech. For that reason, defendants' heavy reliance on Garcetti is misplaced." The court opined that the "precise contours" of the First Amendment's reach in this context are "ill-defined and are not easily determined at the motion to dismiss stage." Ultimately, however, it held:
To the extent that the defendants took action against plaintiff because of her instructional speech to her class, and assuming without deciding at this stage of the proceedings that the instructional speech was within the parameters of the approved curriculum and within academic norms - i.e., that the defendants actions were not reasonably related to legitimate pedagogical concerns - then the complaint has stated a claim for relief under 42 U.S.C. §1983. Therefore, the motion to dismiss the first claim is denied.Thus, while the court's ruling is not a full victory for Sheldon's First Amendment claims (and by extension, not yet a full victory for proponents of academic freedom), insofar as the court did not yet have to decide whether Sheldon's First Amendment rights were in fact violated, it is meaningful in several senses. First, it rejects the college district's motion to dismiss and preserves Sheldon's First Amendment claims, giving hope that her rights will ultimately be vindicated. Second, it repudiates the argument that First Amendment rights are inapplicable when it comes to classroom instruction and other speech pursuant to a professor's official duties. Third, it hopefully sends the message to other courts, university administrators, and the academic profession that reliance on Garcetti is inapposite in the academic realm. Only time will tell whether they will heed the lesson, but I am more or less inclined to agree with Rachel Levinson of the AAUP, who gives her take on the decision to Inside Higher Ed:
Rachel Levinson, senior counsel for the AAUP, said she was "cautiously" pleased with the ruling in the Sheldon case, and that she couldn't be fully pleased while other rulings continue to apply Garcetti to higher education. She added, however [sic] that "I was very pleased that the court did recognize that the majority in Garcetti expressly reserved the issue of First Amendment protection for speech related to teaching, among other things. It's heartening."
That about hits the nail on the head. While there is much work to be done for academic freedom, the district court's ruling is a good start and provides reason for cautious optimism. We will have updates on The Torch as Sheldon's important case proceeds.