UPDATE: Another federal appeals court backs academic free speech for public employees

The U.S. Court of Appeals for the Seventh Circuit just sided with free speech, joining five of its sister circuits in holding the First Amendment protects academic research, writing, and teaching at public colleges and universities. This carves out an important exception to the Supreme Court’s 2006 decision in Garcetti v. Ceballos holding that public employees’ speech pursuant to their official duties is not protected.

This is a big deal. Just ask Jason Kilborn, a law professor at the University of Illinois Chicago suspended in late 2021 for using a redacted racial slur “n___” on a final exam question about employment discrimination. He also used the redacted term “b___” in the same question.

UIC suspended Kilborn and launched an investigation into his (non-)use of the terms. That’s when FIRE stepped in — defending Kilborn, writing to UIC administrators, and securing him a lawyer through our Faculty Legal Defense Fund. With help from that lawyer, UIC briefly reached a resolution with Kilborn but it later reneged on that agreement and forced him to write reflection papers and participate in months-long training sessions before he could return to teaching.

Kilborn sued, alleging administrators violated his constitutional right to academic freedom — and while the district court had dismissed the case, on Wednesday, the Chicago-based Seventh Circuit agreed the First Amendment protected Kilborn’s speech. That court rejected UIC’s “invitation to extend Garcetti to speech involving university teaching and scholarship when the Supreme Court was unwilling to do so,” and sent the case back to the district court. 

With the rejection of that application of Garcetti, the district court will analyze this case using the balancing test from Pickering v. Board of Education, which directs courts to weigh “the interests of the [employee] in commenting upon matters of public concern” against “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” 

This is now the sixth federal appeals court to establish this exception to Garcetti, extending academic freedom protections to public university faculty throughout Illinois, Indiana, and Wisconsin. FIRE is currently awaiting a decision from the Atlanta-based Eleventh Circuit, where we’ve asked that court to do the same with respect to the Garcetti exception. Stay tuned for more as we continue to press and follow this issue closely.