In new brief, FIRE asks Supreme Court to protect academic speech inside and outside the classroom

Do professors cease being academics when they leave the classroom? 

A recent decision from the U.S. Court of Appeals for the Fourth Circuit says public university faculty do not have academic freedom unless they are “teaching a class” or “discussing topics [they] may teach or write about.” But that would severely curtail their rights under the First Amendment, which the Supreme Court has “long recognized” protects “the expansive freedoms of speech and thought associated with the university environment.” 

The Fourth Circuit’s decision moves academic speech from the honor roll to probation.

That’s why yesterday FIRE, along with law professor Keith Whittington and the First Amendment Lawyers Association, filed an amicus curiae — “friend of the court” — brief urging the Supreme Court to reverse that decision. All academic speech should be fully protected as a “special concern” of the First Amendment.

The First Amendment does not let public universities punish professors for their academic speech — whether that speech is in the classroom or not. 

The case, Porter v. Board of Trustees of North Carolina State University, concerns remarks made by Stephen Porter, a professor in North Carolina State University’s College of Education. Porter is a critic of diversity, equity, and inclusion policies and particularly how those policies have impacted his own field: education. At a department meeting, Porter criticized the decision to include a DEI-related question on student surveys. And in a department-wide email, Porter criticized faculty hiring practices, which he thought were unduly motivated by DEI concerns. Then, in a blog post, Porter called a national academic association a “woke joke.”

These remarks landed Porter in hot water with his department and colleagues. His lawsuit alleged that he was forced to teach an extra course, was not permitted to attend Ph.D. admission meetings, and was excluded from a “program area,” effectively prohibiting him from advising doctoral students. With these key job responsibilities taken from him, Porter sued for unconstitutional retaliation against his free speech.

The trial court assumed that Porter’s statements were protected speech, and suggested further proceedings would be needed to balance his academic freedom against any of the university’s interests — like maintaining collegiality among the faculty. It dismissed Porter’s case on other grounds.

But on appeal, the Fourth Circuit “ha[d] no trouble concluding” that Porter’s statements were not protected speech. According to the panel opinion, because he made them first two statements in department-only communications, they were not academic speech. As for the blog post, it concluded there was no evidence the university retaliated against him for that.

The Supreme Court should take Porter’s case and make clear that when professors leave their classrooms, their freedoms stay with them.

That was wrong. Porter’s criticism of DEI policies don’t have to occur in a classroom or academic journal to be academic speech. Porter is a professor of higher education. His critiques of higher education policy — including of his own institution’s policies — remain academic even if they leave the classroom. Academic speech regularly occurs at office hours, in hallways, or at large academic conferences. And many academics comment on issues outside their university’s walls: on television, in newspaper op-eds, or via blogs. Limiting academic speech to a narrow sliver of academic discourse “would imperil the future of our Nation,” the Supreme Court says, by “impose[ing] a[] strait jacket upon the intellectual leaders in our colleges and universities.

The First Amendment does not let public universities punish professors for their academic speech — whether that speech is in the classroom or not. The Supreme Court should take Porter’s case and make clear that when professors leave their classrooms, their freedoms stay with them.

Read the full amicus brief here.