'Garcetti' Issue Comes Up Again, This Time in Seventh Circuit Case at Northeastern Illinois University

A Northeastern Illinois University (NEIU) professor's lawsuit alleging violation of her First Amendment rights by her employer is the latest case to test the speech protections afforded to public university faculty in the aftermath of the Supreme Court's 2006 decision in Garcetti v. Ceballos.

Loretta Capeheart, a tenured associate professor of justice studies at NEIU, lost her dispute at the federal district court level and has appealed the ruling to the United States Court of Appeals for the Seventh Circuit. The case has drawn the attention of the American Association of University Professors (AAUP), which submitted an amicus curiae ("friend of the court") brief to the Seventh Circuit last week. Both The Chronicle of Higher Education and Inside Higher Ed have the story.

Capeheart's suit arose when she was denied promotions and a faculty award after she clashed with the university administration over a number of protest activities. Capeheart alleges in her lawsuit that administrators threatened her with disciplinary action for protesting military recruitment at a job fair on NEIU's campus in 2006, and that they were similarly angered by her defense of students arrested for protesting Central Intelligence Agency recruitment in 2007, in the form of contacting members of the administration and rallying faculty support. She also accuses administrators of seeking to retaliate against her for publicly complaining that the university's inability to hire additional Hispanic faculty for financial reasons was due to excessive administrative spending, a pertinent issue when the Illinois legislature's Latino Caucus visited NEIU in 2006.

Following these clashes, the faculty of NEIU's justice studies program voted for Capeheart to lead the new department in July 2007. However, the university's provost, Lawrence P. Frank, declined to appoint her to this position. She was also denied a position on the search committee for selecting the department's new chair, and in the spring of 2007 denied an award for faculty excellence despite the fact, according to her lawsuit, that other professors who were no more qualified than she received awards.

Capeheart's case is another test of Garcetti, which held that public employees generally do not enjoy First Amendment protection for speech made "pursuant to official duties." Garcetti arose outside of the university setting, however, and the Supreme Court in that opinion explicitly reserved the question of whether this holding applied to the scholarship and teaching duties of professors at public universities. Despite the fact that the Court set aside that question for another day, lower courts have disappointingly applied the Garcetti rationale in a number of faculty speech cases since 2006, countenancing university censorship and punishment of constitutionally protected speech. Indeed, both colleges and courts have broadly construed what faculty speech counts as being pursuant to official duties, with professors suffering discipline for expressing their views on anything from social and political matters of national significance to issues related to university policy and governance.

There have been victories as well in the fight to push back Garcetti in the academic setting, and these have been heartening. The Fourth Circuit, for instance, recently upheld the First Amendment rights of Professor Mike Adams at the University of North Carolina - Wilmington in the face of university punishment, a major win at the federal appellate level.

In the case of Loretta Capeheart, one can only hope that the Seventh Circuit puts more emphasis on the academic freedom and free speech rights at stake than the district court did. In rejecting Capeheart's First Amendment claims, the district court held that her statements regarding CIA and military recruitment were made pursuant to official duties and were therefore not protected against university retaliation. The court in particular emphasized that this expression came in her role as advisor to NEIU's student Socialist Club, to which the students arrested for protesting belonged. With respect to Capeheart's criticism of administrative spending and minority faculty hiring, the court found that this speech was not made pursuant to her official duties, but that too much time had elapsed between her comments and the alleged retaliatory acts to support a claim of retaliation.

If upheld on review, the district court's ruling would deal a major blow to professors' academic freedom and free speech in the Seventh Circuit—and quite likely beyond, as it would send the unmistakable message that faculty members aiming to speak out and be active in campus dialogue risk having their careers damaged. On the other hand, a Seventh Circuit decision to uphold these critical rights, coupled with the Fourth Circuit's recent ruling in the Mike Adams case, would do much to push back the imposition of Garcetti in higher education. The case will be worth following closely, and we will have updates for you on The Torch.