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Tuesday, June 16, 2009

On the Children of Garcetti

So I’m back from the AAUP national meeting, and I’ve decided that I’m a bad person for not blogging about Garcetti v. Ceballos or Hong v. Grant (.pdf) until now.  (Marc Bousquet was all over it more than a year ago.) The Hong case is just one example of what I call the Children of Garcetti, and if you teach at a public university in the United States (or if you know someone who does), you should know about Garcetti.

Here’s the Oyez summary of the case.  Since Garcetti involves the fate of a deputy district attorney in Los Angeles who was whistleblowing with regard to what appeared to be a fraudulent affidavit, most people didn’t realize that it might have implications for academic freedom.  Ah, but not the AAUP’s legal staff!  They were on the case, so to speak, from the start (here’s a .pdf of the brief).  Which is yet another reason you all (if you’re college professors) should have joined the AAUP by now, because (a) the AAUP sees these things coming when most of the rest of us don’t and (b) helps to fight ‘em in court.  Indeed, the AAUP/ Thomas Jefferson Center for the Protection of Free Expression brief seems to have caught the attention of David Souter, who, bless his retiring heart, wrote in dissent:

This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to official duties.”

In response, Justice Kennedy’s majority opinion, citing Bugs Bunny, replied, “ehhhhhh ... could be!” Though the actual language was this:

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.

In other words, we’re leaving that door open, thanks—if any lower courts want to walk through it, just make sure they wipe their feet on the 1940 Statement of Principles of Academic Freedom.  And don’t be fooled by Kennedy’s reference to “scholarship and teaching,” either. Anything you do or say as part of your job as a public-university employee—including ordinary university committee work that touches on matters of institutional policy and procedures—can now be grounds for disciplinary action, up to and including dismissal.

Or so held the Hong court.  And as a result, the members of the Faculty Senate at the University of California-Davis recently received this letter:

Academic Senate colleagues,

The UC Davis Academic Senate Committee on Academic Freedom and Responsibility has been carefully reviewing recent court cases in which professors have sought relief from real or perceived disciplinary actions against them by the university administrations at their institutions. These cases include Hong v UC Regents, Renken v Gregory et al. (representing University of Wisconsin at Milwaukee), and Gorum v University of Delaware. Each case has unique circumstances, but the uniformity of the judicial rulings across these cases provides a clear and important message that we feel is necessary to make you aware of.

According to recent court rulings, your speech and behavior in job-related duties as a public employee rather than a private citizen have no First Amendment protection. This means that disciplinary action may be taken against you (including dismissal) for statements you make in the course of your employment. Any activity performed on the job falls within this purview. According to the recent court rulings, speech and actions in shared governance activities are certainly not protected. Historically, courts perceived that some First Amendment protection may exist for speech and actions related to your academic scholarship, but that subset of activities has never been directly evaluated by the Supreme Court. It may be that future cases will reverse the present trend and give support to faculty. Nevertheless, we recommend that you expect that your speech and behavior outside of your field of scholarship is absolutely not protected by the First Amendment.

Further, university policies on academic freedom (APM 010 and 015) only protect speech and behavior in your area of demonstrated academic scholarship. Do not expect that university policies give you a right to speak and act freely in your job duties on campus outside of your scholarship. For example, the Renken case illustrates that your speech and actions related to the management of your research grants are not protected, even though the activities covered by those grants are part of your academic scholarship. Our employment culture at UC Davis has been supportive of transparency and freedom, but it may not be a right.

In light of the present deep economic recession and dramatic cuts under discussion at UC Davis, faculty participating in shared governance are in a position in which they may voice strong views and concerns that could lead to lawful but punitive reaction by the administration, including denial of merits and even dismissal. Given the legal and policy realities at hand, we highly recommend that you use caution, restraint, and judgment in your speech and actions in all job-related duties.

Committee on Academic Freedom and Responsibility

How do I know this?  Because UC-Davis historian Eric Rauchway passed it along to me this weekend, and I forwarded it to the AAUP (with his permission), and now Eric has blogged about it as well.  (I did not know there was an Ari Fleischer University!  Ah, well, We Are All Ari Fleischer University Now.) Here’s Eric:

In Hong v. Grant, Judge Cormac Carney ruled that it didn’t really matter why Hong had been denied his merit, because even if he had been denied on account of his statements, rather than on account of a modest research record, it would have been acceptable under Garcetti v. Ceballos.

Mr. Hong is under professional obligation to actively participate in the interworkings and administration of his department, including the approval of course content and manner of instruction.

If I follow the logic correctly, Hong is obliged to participate in the administration of his department. But the definition of “actively participate in the interworkings and administration of his department” appears here to be, “say only those things which won’t lose you a merit increase.”

Now so far, the implication of the case seems to be, don’t say anything bad about how the administration runs the university. None of this seems to touch utterances in the classroom or research. But it doesn’t exclude them, either. As Carney notes, “In the University of California system, a faculty member’s official duties are not limited to classroom instruction and professional research.” Which is to say, official duties include serving on committees and suchlike in addition to classroom instruction and professional research. The clear implication of this sentence is that classroom instruction and professional research would be covered under Garcetti, unless they were specifically exempted by such precedents as Souter cited.

What is to be done?  Well, I’ve already suggested, and will suggest again, that it’s a good time to join the AAUP and help fund our attempts to get this stuff overturned and reversed and rendered moot.  But in the meantime, if you’re working at a public university, you should probably set about revising your faculty handbook as well, just in case.  As it happened, earlier this year the Penn State Faculty Senate asked me to consult with them about threats to academic freedom, and asked whether I had any advice for them as they reviewed Penn State’s academic freedom guidelines.  “Oh boy, do I,” I replied, “and this time, my advice has nothing to do with He Who Shall Not Be Designated By His First Initial and a Drastic Truncation of His Surname.” I showed up and proposed a specific revision to our handbook, along the lines of the language proposed by the University of Minnesota Faculty Senate.  At Minnesota, they’ve struck the phrase “as a public citizen” from the following, because the logic of Garcetti (and all its children) is that you still have First Amendment rights when you speak as a citizen; you just don’t have them as a public employee.  The italicized passage is the new language:

Academic freedom is the freedom to discuss all relevant matters in the classroom; to explore all avenues of scholarship, research, and creative expression; and to speak or write as a public citizen without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the University. Academic responsibility implies the faithful performance of academic duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that the individual is not speaking for the institution in matters of public interest.

Hat tip to my friend Cary Nelson, AAUP President, who called this to my attention in his forthcoming book, No Campus is an Island: Saving Academic Freedom.  (Due next spring from NYU Press.  Keep an eye out for it!)

It’s so funny, except of course that it’s not funny at all: you spend so much time and energy defending academic freedom from the culture warriors of the right, and then something else, completely unrelated, comes along and does far more systemic damage.  Interestingly, Ye Olde Culture Warriors of the Right haven’t had much to say about the Children of Garcetti either.  But since this development could certainly affect conservative professors (if there are any left in the United States after the Great Purge) at public universities who comment on their schools’ policies and procedures, maybe it would be a good time for everyone to recognize that it makes sense to protect faculty from institutional retaliation when they speak on matters “pertinent to official duties.”

x-posted.

Posted by Michael on 06/16 at 08:56 AM
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