Amicus Curiae Brief Filed in Ninth Circuit Academic Freedom Case

The AAUP and the Thomas Jefferson Center for the Protection of Free Expression (TJC) recently filed an excellent amicus curiae brief in an important case in the Ninth Circuit, Juan Hong v. Stanley Grant, et al., 516 F. Supp. 2d 1158. The brief offers a strong defense of public university professors' academic freedom. 

In the case, Professor Hong, a professor at the University of California Irvine (UCI), alleged that UCI denied him a raise and increased his workload as retaliation for his critical review of other faculty members and the department's reliance on lecturers to teach classes. The Central California District Court granted summary judgment for UCI, and Hong has appealed to the Ninth Circuit.

The district court's opinion applied the rule set out in Garcetti v. Caballos, 547 U.S. 410 (2006), which governs public employee speech generally, to Professor Hong's speech.  The Garcetti rule states that public employee speech made pursuant to official duties is not protected by the First Amendment. In Garcetti, however, the Supreme Court specifically identified public university professors' speech as potentially requiring a different approach due to the university's unique status as an institution of ideas. Given the Court's long-standing history of viewing the university as an important First Amendment institution, requiring freedom of speech to fulfill its purpose, it seems likely that the Court, when it addresses the issue, will conclude that a different approach is merited.

Unfortunately, not only did the district court apply the Garcetti rule directly to Professor Hong's speech, it did not offer any justification for doing so. The AAUP and TJC amicus brief takes the court to task for this glaring failure to justify its resolution of a contested issue.

The AAUP and TJC amicus brief argues that academic freedom requires that faculty be able to speak freely on the school, faculty decisions and scholarship without the threat of punishment, and thus UCI should not be able to punish Professor Hong for his speech on these matters. The brief points out that professors require "discretion and autonomy that find no parallel elsewhere in public service."

Indeed, unlike other public employees, professors are hired to seek, engage and espouse the truth. They are not hired to speak for the government or to parrot the views set out by the school. The Garcetti rule is premised on the fact that when public employees speak pursuant to their official duties they are speaking for the government.  Their speech can be regulated, then, because the government can regulate its own speech. In contrast to the average public employee—say a clerk at the DMV or a police officer—professors are clearly not speaking for the government. Rather, they have been hired to speak for themselves, and thus their speech must be treated differently than the average public employee's speech.

The amicus brief fails to address the issue of when a professor's speech can be regulated by his school, and in fact implies that it can never be. But clearly academic departments can refuse to promote scholars who produce shoddy scholarship, thereby regulating professorial speech. This distinction—between regulating the speech for academic quality and regulating it for its viewpoint—arises from the fact that the school has commissioned the professors to pursue scholarly knowledge, and that pursuit is marked by reason, logic and insight. In other words, the government has hired professors to speak in a reasoned and insightful fashion and thus can regulate the features it has commissioned. It cannot, however, step beyond that and dictate the content or viewpoint of professors' speech.

The separation between the average public employee and a professor finds analogy in student-fee subsidy cases. In Rosenberger v. Rector and Visitors of the University of Virginia, 515 U. S. 819 (1995), the Court held that a school may dictate the content of its own speech and the students it hires to deliver that message, but if it subsidizes a multiplicity of student groups to engage in their own private speech, it has established a public forum, and cannot then regulate the viewpoint of those multiple voices. Similarly, with the aforementioned restraint on quality, professors are funded to speak in their own voices, and thus should be able to speak freely, without restraint.     

The speech at issue in Hong v. Grant was not scholarship—it was Professor Hong's review of the qualifications of other faculty members as well as criticism of the number of lecturers the department had assigned to teach classes. Though not scholarship, his reviews were scholarly assessments and thus fall under the same ambit. This speech too could be punished if it failed to meet standards of academic quality. Like scholarship, it cannot, though, be punished because the department or school disagrees with his viewpoint.

Unfortunately, the district court's pat application of the Garcetti rule to Professor Hong's speech—making it completely unprotected—meant that there was no determination of why Professor Hong's speech was punished, if it was. Based on the brief description of Professor Hong's speech in the opinion, it seemed of academic quality, and thus should have been fully protected. 

Hopefully, the Ninth Circuit will find the AAUP and TJC' amicus curiae brief to heart and reverse this poor decision.