Landmark Fourth Circuit Ruling Protects Faculty Speech
April 7, 2011
In a victory for freedom of expression, the United States Court of Appeals for the Fourth Circuit yesterday issued a landmark defense of First Amendment rights for faculty at public colleges and universities. The Fourth Circuit reversed a federal district court's ruling in part, holding that the lower court had improperly dismissed First Amendment claims brought by Professor Mike Adams of the University of North Carolina Wilmington.
In his complaint, filed against the university in March of 2007 with the backing of the Alliance Defense Fund, Adams alleged that his application for promotion had been denied in part due to the conservative political viewpoints expressed through his work as a columnist. As a result, Adams argued that the university's rejection of his application constituted retaliation against protected speech in violation of his First Amendment rights. Adams also alleged that he had suffered religious discrimination and an equal protection violation.
In a ruling issued in March of 2010, the federal district court rejected Adams' claims. With respect to his First Amendment retaliation charge, the district court found that because Adams had included the conservative columns in his application for promotion, the content of the columns became speech "made pursuant to his official duties"—and thus not protected by the First Amendment. In support of this holding, the district court cited the Supreme Court's ruling in Garcetti v. Ceballos, 547 U. S. 410 (2006), in which the Court ruled that public employees do not enjoy First Amendment protections when engaging in speech pursuant to their official duties. Under Garcetti, the district court determined that the columns could not be cited as grounds for retaliation in violation of the First Amendment.
We here at FIRE found the district court's ruling against Adams deeply worrying. For one, we felt the facts provided significant support for Adams' First Amendment claim. But even more ominously, the district court's reliance on Garcetti made the ruling against Adams just the latest in a quickly-growing string of Garcetti-based defeats for public university faculty members. The problem with Garcetti is that in lessening First Amendment protections for public employees generally, it particularly impacts faculty members, whose speech in fulfilling teaching and research duties differs greatly from the speech of, say, district attorneys, police officers, or public administrators. Because while the government as employer may reasonably expect a significant amount of control over the public speech of district attorneys, that same amount of control over the scholarly research and teaching of public university faculty members is inappropriate and amounts to an infringement on academic freedom.
To address this exact concern, Justice Anthony Kennedy inserted a crucial caveat into the majority opinion he penned in Garcetti, writing:
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.
Justice Kennedy thus specifically and explicitly declined to extend Garcetti's analysis to bear on cases involving the speech of public university faculty, reserving the question. Unfortunately, in application, Justice Kennedy's careful carve-out has been largely disregarded by courts, and Garcetti's impact on faculty speech has been so significant in recent years that the American Association of University Professors (AAUP) mounted a campaign to push back against Garcetti and what it has deemed "judicial hostility or indifference" to academic freedom.
So, given the concerns of both FIRE and the AAUP regarding Garcetti generally and its application by the district court against Adams' First Amendment claims specifically, it was fitting that FIRE, the AAUP, and the Thomas Jefferson Center for Free Expression filed an amici curiae brief last July urging the Fourth Circuit to reverse the lower court's holding. In our brief, we pointed out the problem with the district court's decision to invoke Garcetti as grounds for granting summary judgment, writing:
Because academic speech under the First Amendment is neither governed by Garcetti nor susceptible to the "official duties" analysis reflected in Garcetti, the scope of First Amendment protection for academic speech should be governed by more than a half-century of decisions, beginning with Sweezy v. New Hampshire, 354 U.S. 234 (1957), that recognize the vital role that academic speech by college and university professors plays in our society and the First Amendment interest in that speech. Further, granting the University of North Carolina-Wilmington summary judgment on Adams' First Amendment claims sets a dangerous precedent by prematurely judging the matter, a step that another appellate court has noted may be inappropriate in First Amendment retaliation cases.
Yesterday's landmark ruling from the Fourth Circuit was thus especially welcome. In reversing the district court's First Amendment holding, the Fourth Circuit panel made several points worth noting here.
First, the Fourth Circuit pointed out that the district court hadn't even acknowledged Justice Kennedy's carve-out for public faculty speech:
[T]he district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university.
If it seems odd that the district court needed to be reminded of the Supreme Court's explicit reservation of the Garcetti ruling to public university faculty, that's because it is—and the Fourth Circuit apparently thought so, too.
The Fourth Circuit next pointed out that just because Adams had included his columns in his application for promotion, that act alone did not transform them into speech made pursuant to his duties as a government employee. The court observed that "[n]othing about listing the speech on Adams' promotion application changed Adams' status when he spoke or the content of the speech when made." Further, the court noted that while Garcetti may apply to public university faculty when their duties include "a specific role in declaring or administering university policy, as opposed to scholarship or teaching," the facts presented by Adams' case don't merit such an application. Indeed, the court found that Adams' case involved speech that was "intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams' assigned teaching duties at UNCW or any other terms of his employment found in the record," noting that the university defendants "concede none of Adams' speech was undertaken at the direction of UNCW, paid for by UNCW, or had any direct application to his UNCW duties."
But even though the speech was "unrelated to any of Adams' assigned teaching duties" and "was clearly that of a citizen speaking on a matter of public concern," it nevertheless implicated Adams' right to academic freedom, as provided for by Garcetti's carve-out, because it is understood that professors will provide such commentary as a function of their role as academics. As the Fourth Circuit wrote:
Put simply, Adams' speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields. For all the reasons discussed above, that thin thread is insufficient to render Adams' speech "pursuant to [his] official duties" as intended by Garcetti.
To its credit, the Fourth Circuit also further provided much-needed clarity about just how Garcetti should be navigated by courts with regard to its impact on academic freedom. The court wrote:
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, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.
Interestingly, the Fourth Circuit also weighed in on the district court's denial of the defense of qualified immunity to the university administrators named as defendants here:
As a final matter, we note that remand is appropriate despite the Defendants' alternative argument that the district court erred in denying their defense of qualified immunity. The Defendants assert they were entitled to immunity as to Adams' First Amendment claim because their conduct did not violate a "clearly established constitutional right" given the uncertain state of the law in the area of what protection should be afforded to public university teacher's speech following Garcetti. We disagree. Garcetti provided an additional component to the McVey test and the Pickering-Connick analysis traditionally applied in assessing whether the First Amendment protects a public employee's speech. However, the underlying right Adams asserts the Defendants violated - that of a public employee to speak as a citizen on matters of public concern - is clearly established and something a reasonable person in the Defendants' position should have known was protected. As such, the Defendants are not entitled to qualified immunity, and the proper course is to remand Adams' claims for further consideration under the second and third prongs of the McVey test. [Emphasis mine.]
In other words, the Fourth Circuit rejected the defendants' argument that Garcetti has so changed the legal landscape that reasonable university administrators can't possibly know that faculty members continue to enjoy a First Amendment right to speak out about matters of public concern. Because the court found that a reasonable administrator would have recognized that this right persists even post-Garcetti, the defendants here cannot avail themselves of the defense of qualified immunity.
FIRE is very pleased by this victory for faculty speech, and we hope that its impact is felt far beyond the Fourth Circuit's jurisdiction. I whole-heartedly agree with the sentiments expressed by Rachel Levinson, Senior Counsel for the AAUP, who told The Chronicle of Higher Education that the AAUP is "thrilled by the court's decision" because it "recognized that the Garcetti decision-by its clear language-does not apply to scholarship or teaching by faculty at public universities." I'm also in deep agreement with David French, former FIRE President and current senior counsel for the Alliance Defense Fund, who told the Chronicle that yesterday's decision "deals a real blow to the idea that professors' speech is somehow wholly owned by the university. It is not."
Of course, we'll be watching closely to see if yesterday's decision is appealed by the university to the Supreme Court. As always, we'll have all the developments for you here on The Torch.