Members of campus communities often speak of a strong commitment to academic freedom.[4] First emerging as a professional norm and then later established as a constitutional right through U.S. case law, academic freedom has become an expectation at American colleges and universities. What “academic freedom” means, however, can vary depending on the speaker and the context, especially with respect to the specific rights that academic freedom encompasses and to whom the right applies. Ambiguity in this area can cause frustration among administrators, faculty, and those tasked with protecting the legal interests of higher education institutions.
Academic freedom is a tricky concept largely because courts define it more narrowly than do most members of campus communities. In addition, courts are still developing the constitutional dimensions of the academic freedom right. This presents yet another challenge to problem-solving and decision-making in this area. The key U.S. Supreme Court case on public employee speech, Garcetti v. Ceballos, holds that public employees cannot assert First Amendment claims against their employers for speech rendered as part of the employees’ “official duties.”[5] This holding would encompass much of a faculty member’s work, except that the Garcetti Court explicitly stated that, at least for the time being, it did not intend its holding to extend so far.[6] The Court’s decision to forego the matter has left the circuit courts to provide a preliminary answer to this very fundamental question: Do faculty have a First Amendment right in their scholarship and teaching that they can assert against their employer?[7]
This Note endeavors to serve four purposes: to introduce legal practitioners to academic freedom as a professional norm that influences institutional culture and the expectations on campus; to provide a reference for practitioners on the black letter law underlying academic freedom as what Court dicta labels a “special concern”[8] of the First Amendment; to discuss the limitations on speech imposed by Garcetti v. Ceballos and the line of case law applying Garcetti to faculty speech; and to offer guidance on how the existing law applies to different scenarios that raise academic freedom concerns on campus, such as faculty discipline (including unique issues that arise in the context of bias incidents and/or “micro-aggressions”), the peer review process, faculty governance, and trigger warnings.
DISCUSSION:
I. THEORETICAL & GENERAL HISTORICAL BACKGROUND OF ACADEMIC FREEDOM
A. Academic Freedom: The Professional Norm
Academic freedom was originally understood as a professional norm that prioritized the preservation of faculty members’ autonomy as individuals against interference by their institutional employers. The norm evolved from the German principle of lehrfreigheit—the “distinctive prerogative” of academics to inquire, to examine evidence, to report findings, and to teach students without fear of reprisal in an environment with few administrative restrictions.[9] The concept soon found its way across the Atlantic into the American Association of University Professors’ (AAUP) 1915 Declaration of Principles on Academic Freedom and Academic Tenure.[10] The 1915 Statement, in turn, served as a precursor to what is perhaps the most influential articulation of academic freedom principles in American higher education literature[11]: the 1940 Statement of Principles on Academic Freedom and Tenure.[12]
The 1940 Statement declares that faculty members are entitled to the freedom to pursue scholarly research, to discuss their areas of expertise within the classroom setting, and—as citizens, academic professionals, and educational institution officers—to speak and write without the threat of “institutional censorship or discipline.”[13] Since the 1940 Statement was published, private and public postsecondary institutions alike have incorporated this notion of academic freedom into their faculty handbooks, policies, and guidelines.[14]
B. Academic Freedom: The Constitutional Right
The U.S. Supreme Court waded into the discussion in the mid-twentieth century, establishing a jurisprudence specific to academic freedom within the broader context of the First Amendment’s protection of speech. Initially, these cases highlighted the public policy concerns underlying academic freedom, lauding the right as an “essential[] freedom in the community of American universities.”[15] Much of the Justices’ language in these opinions echoed the sentiments articulated in the AAUP’s 1940 Statement, which emphasized the academic freedom rights of faculty members.[16]
The following decade, however, the Supreme Court appeared to depart from the traditional understanding of academic freedom by shifting the identity of those who hold the right from individual faculty to the institutions themselves.[17] Under this precedent, when a faculty member challenges the institution’s employment decisions, institutions are well within their rights to assert their own interests and preserve their academic freedom. [18]
In some sense, then, the Supreme Court’s jurisprudence has set in motion a collision course between two competing notions of academic freedom: the potential right of faculty to engage in unfettered expression as part of their academic work, on the one hand, versus the rights of colleges and universities to determine who may teach and what may be taught at their institutions, on the other. And while academic freedom as a professional norm—one that preserves the rights of individual faculty against institutional interference—has firm grounding in institutional culture, vigorous legal and scholarly debate has ensued over whether and to what degree the law recognizes academic freedom as a distinct right of the individual versus that of the institution.[19]
C. The Speech Rights of Public Employees
More recently, the Supreme Court began to develop a separate line of cases to address an issue that ties directly into the academic freedom debate: the First Amendment rights of public employees.[20] The current leading case, Garcetti v. Ceballos,[21] establishes the legal framework governing First Amendment retaliation claims by public employees. Before taking any adverse employment action against a faculty member, public institutions must not only grapple with whether the faculty member’s speech is subject to the same protections as the speech of public employees generally, but with whether and to what extent the faculty member’s speech is protected under the First Amendment’s “special consideration” for academic freedom—if such a right exists.[22]
The following section attempts to untangle these competing threads of cases, beginning with an overview of academic freedom case law and followed by a summary of public employee First Amendment retaliation jurisprudence. It concludes with a discussion of how courts have interpreted Garcetti in light of the Supreme Court’s dictum explaining that the Court did not “decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship and teaching.”[23]
II. SPECIFIC LEGAL BACKGROUND AND FRAMEWORK
A. Early Academic Freedom/First Amendment Cases – Sweezy, Keyishian
The 1950s and 1960s heralded the appearance of vanguard U.S. Supreme Court cases protecting academic freedom under constitutional free speech principles and articulating the public policies advanced by academic freedom. These cases involved institutions as well as individual faculty members fending off external threats to their independence. Two cases are worth particular emphasis. First, in Sweezy v. New Hampshire,[24] the Supreme Court held that it violated principles of academic freedom and the First Amendment’s protection of political expression for a court to impose a contempt sanction against a college professor for refusing to answer questions by the Attorney General concerning the content of the professor’s lectures and his knowledge of a particular political party and its adherents. It was here that Justice Frankfurter, in a concurring opinion, first spelled out “the four essential freedoms” of the institution—“to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”[25] Second, in Keyishian v. Board of Regents of University of State of New York, [26] the Supreme Court held in a 5-4 vote that New York state could not prohibit employees from being members of the Communist Party and that the laws at issue were overbroad and vague; in addition, the State University of New York could not require faculty to swear they were not members of the Communist Party.
These two cases supply often-quoted articulations of public policy concerning academic freedom. The plurality opinion in Sweezy explained:
To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. [27]
In the same vein, the Court in Keyishian explained: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”[28] The Keyishian Court further emphasized the need for the “marketplace of ideas” to thrive in higher education, and the need to prevent government intrusion that would otherwise “cast a pall of orthodoxy over the classroom.”[29] Finally, in the 1970s, in Regents of University of California v. Bakke,[30] the Court relied on this line of cases to formulate a seminal articulation of the academic freedom rights of higher education institutions, which included Justice Frankfurter’s “four essential freedoms.”[31]
These cases—which addressed the rights of the academy to protect itself—did not consider the question of whether faculty members have a right to level claims against the institution. Instead, this question was addressed in cases that spoke to the rights of public employees to be free of censorship by their employers, as discussed in the next section.
B. Employee Free Speech Generally – Garcetti v. Ceballos
1. The Test for Public Employee First Amendment Retaliation Claims
In the last several decades, the U.S. Supreme Court has developed a framework for determining the First Amendment rights of employees against a public employer. The Court has articulated three general requirements for a public employee to establish a claim against an employer for First Amendment retaliation. An employee’s speech will be protected from retaliation if (1) it is on a matter of “public concern,”[32] (2) it does not constitute speech made by the employee “pursuant to . . . official duties” but instead is speech “as a private citizen,”[33] and (3) the employee’s First Amendment interests outweigh the government employer’s legitimate interests in efficient administration.[34] This last factor is known as the “Pickering balancing” test, and has been further developed and refined by case law.[35]
Elaborating on the “Pickering balancing” test, courts have stated that the government employer must establish that it “had an adequate justification for treating the employee differently from any other member of the general public.”[36] More specifically, “the government must establish that its ‘legitimate administrative interests outweigh the employee’s First Amendment rights.’”[ 37] Such interests may include “promoting efficiency and integrity in the discharge of official duties and maintaining proper discipline in the public service.”[ 38] An employer can also use “disruption” as the basis for restricting an employee’s speech. Circuit courts have developed different definitions of disruption, but in general, “[t]he employer need not establish that the employee’s conduct actually disrupted the workplace—‘reasonable predictions of disruption’ are sufficient.”[39]
Garcetti added to the analysis a clear articulation of the second element listed above, which relates to speech made in furtherance of duties as a public employee. The “official duties” rule from Garcetti explains that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[40] The Court reasoned that restricting speech that “owes its existence” to a public employee’s job responsibilities does not infringe any liberties the employee enjoys as a private citizen.[41]
2. Academic Freedom Carve-out
Academic freedom has received different treatment under the “official duties” rule, starting with Garcetti itself. In response to a concern that Justice Souter raised in the dissenting opinion—that the “official duties” rule might undermine academic freedom[42]—the majority opinion includes a “carve-out” regarding the issue of academic freedom. As the majority explained, “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.”[43] This carve-out—or caveat—does not indicate that the “official duties” rule has no application in the context of scholarship or teaching. Instead, the Garcetti Court merely stated that it declined to decide, for the time being, the extent to which its “official duties” holding would apply in this context.[44] Indeed, the Court’s language appears to confirm that the Court considered the “official duties” test to apply in some manner in the academic context, if not in the “same manner” it does for public employees generally.[45]
C. Circuit Split—Does the Garcetti “Official Duties” Rule Apply to “Scholarship and Teaching”?
There is currently a split among the federal circuit courts about whether the Garcetti “official duties” rule applies to “scholarship and teaching.” If it does not, such speech potentially has First Amendment protection even though it is part of the academic’s job. If the Garcetti “official duties” rule does apply, however, then a faculty member’s work-related speech, though traditionally protected by academic freedom as a professional norm, does not carry with it corresponding First Amendment rights that the faculty member can assert against his or her institution. Many would say that this latter interpretation makes sense, since it is the institution itself that is thought to have paramount academic freedom rights under Bakke. Moreover, the institution is the entity that supported, paid for, and made possible the speech at issue.
The contrary view is that a constitutional right should extend to individual faculty members in order to insulate the pursuit of inquiry from falling victim to a “pall of orthodoxy” in the classroom. Under this view, if faculty have no First Amendment right to assert against their own employer in their scholarship and teaching, they will have insufficient safeguards from improper interference in their work.[46]
Courts have held both ways on the question of whether a faculty member’s right to academic freedom at a public college or university is protected by the First Amendment. The Sixth Circuit in Evans–Marshall v. Board of Education,[47] for instance, held that under Garcetti, “curricular and pedagogical choices” rendered “in connection with [plaintiff’s] official duties as a teacher” were not protected by the First Amendment. Prior to the 2006 Garcetti decision, the Fourth Circuit in Urofsky v. Gilmore[48] had also rejected the First Amendment academic freedom claims of professors, holding, “Our review of the law . . . leads us to conclude that to the extent the Constitution recognizes any right of ‘academic freedom’ above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors . . . .”[49]
After Garcetti, however, the Fourth Circuit changed course in Adams v. Trustees of the University of North Carolina-Wilmington,[50] finding that a faculty member’s columns, publications, and presentations were speech related to scholarship or teaching at the time of their creation and not “speech pursuant to official duties” that would lack First Amendment protection. The Fourth Circuit determined that the speech was protected and opined that it expected that the Garcetti rule would not apply in the context of scholarship and teaching in higher education.[51]
Then on January 29, 2014, the Ninth Circuit issued its decision in Demers v. Austin.[52] In Demers, the Ninth Circuit squarely answered the question left open in Garcetti in favor of the First Amendment’s supporting academic freedom rights, holding, “We conclude that Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.”[53] In Demers, a member of the faculty at Washington State University circulated a “7-Step Plan” proposing substantial restructuring of faculty responsibilities. He alleged the college retaliated against him for doing so in violation of his First Amendment rights.[ 54] The court determined that the “7-Step Plan” was within the scope of scholarship and teaching for purposes of the dictum in Garcetti concerning academic freedom.[55] The court held that even though the faculty member’s alleged speech was pursuant to his official duties, he could nevertheless claim First Amendment protection in the speech based on his unique status as an educator employed by the state. The court’s opinion also confirmed the scope of what “official duties” speech has this unique protection—it is speech “related to scholarship or teaching.”[56]
The Demers opinion, however, makes clear that a faculty member must still prove other traditional elements of a public employee First Amendment retaliation claim. In other words, for the claim to succeed, a faculty member must still prove that his or her speech was on a matter of “public concern” and must still prevail on the traditional balancing test under Pickering v. Board of Education.[57] The Demers opinion adds that, when applying this Pickering balancing test, future courts will need to give some deference to college and university administrators. The court provides some examples, including a college’s “evaluation of a professor’s writing for purposes of tenure or promotion.”[58] The court states that such an evaluation “involves a judgment by the employing university about the quality of what he or she has written.”[59] The court explains further: “Ordinarily, such a content-based judgment is anathema to the First Amendment. But in the academic world, such a judgment is both necessary and appropriate.”[60] The Ninth Circuit in Demers further concluded that courts in future cases should not just substitute their views for those of the administration: “[R]ecognizing our limitations, we should hesitate before concluding that we know better than the institution itself the nature and strength of its legitimate interests.”[61]
III. PARTICULAR ISSUES RAISING QUESTIONS OF ACADEMIC FREEDOM
The legal concept of academic freedom as a “special concern” of the First Amendment, particularly at the individual level, is more fiction than fact under contemporary jurisprudence.[62] So how does the relative uncertainty of the role of constitutional academic freedom in a post-Garcetti world impact the daily life of a professor or college administrator?
Because courts have tackled the Garcetti caveat with varying degrees of consistency, the answer will depend on who and where an institution is located. Some courts have firmly read the Garcetti “official duties” rule to apply to the intramural speech of academics, meaning that they have found no constitutional concept of academic freedom-protection for faculty acting within their official duties.[63] Other courts have gone to lengths to find that the faculty speech at issue is extramural—and thus outside the course and scope of the faculty member’s duties and apply the Pickering balancing test.[64] In these districts and circuits, the Garcetti caveat offers little protection for faculty speech inside the institution and greater employer discretion for college and university administrators to make personnel and policy decisions.
However, universities and colleges in the Fourth Circuit and the Ninth Circuit face a different reality. Most strongly in the Ninth Circuit, the Demers case is clear that “academic speech” is exempt from the Garcetti analysis but subject to the Pickering balancing test. Importantly, the Ninth Circuit’s analysis of academic speech—speaking or writing on academic matters—touches on traditional professional notions of individual academic freedom as well as participation in faculty governance. The result is that faculty in the Ninth Circuit arguably enjoy greater First Amendment protection than their colleagues in other parts of the country.
Despite the uncertainty surrounding the future of individual academic freedom rights after Garcetti, other First Amendment analyses remain on firmer ground. These include First Amendment protections of student speech as well as the institution’s constitutional right to be free from state interference with its core academic functions.[65] With the existing constitutional framework in mind, institutional responses to the rise of student activism will become all the more crucial and criticized. For example, many colleges and universities are considering policy remedies intended to create an inclusive learning environment for all students, particularly those with experiences that deeply and negatively affect their ability to access an education. Some of these remedial measures have arisen as a direct response to the demands of student activism; these strategies may impact faculty academic freedom analyses made even more acute in the wake of the Garcetti decision. We will attempt to outline and briefly respond to the more well-known measures in this Note, with particular emphasis on special concerns raised by post-Garcetti academic freedom issues. Importantly, each of these issues has the potential to set up a direct conflict between the institution and the faculty member on the issue of personnel expectations and notions of academic freedom. In these cases, the Garcetti analysis rises to the fore.
A. SPEECH WITHIN ACADEMIC DISCIPLINES
Speaking and writing in a given field of expertise is the bread and butter of academic work. According to the traditional view of academic freedom—a view espoused by many institutional policies and faculty handbooks—faculty members are entitled to speak on subjects within the scope of their expertise without fear of institutional discipline.[66] Many faculty members who find themselves under the institutional microscope for controversial statements attempt to wield this norm-based understanding of academic freedom as an absolute shield from institutional oversight.[67]
Under the constitutional view, however, academic freedom is not the sole prerogative of faculty members (and, in some circuits, may not be their prerogative at all). Legally speaking, the institution itself is also entitled to academic freedom—in its choices of who may serve as faculty and what general subjects those faculty members may teach.[68] Therefore, even if faculty members are entitled to some kind of academic freedom exemption from the Garcetti “official duties” rule, the academic freedom rights of public institutions may take precedence over those of individual faculty members.[69] This holds true even when faculty members are expressing opinions related to the field of their expertise.[70] The degree of leeway an institution has in terms of disciplining faculty for expertise-related speech hinges on the interpretation of the Garcetti caveat, if any, adopted in the jurisdiction in which the institution is located.
What renders the Garcetti inquiry so delicate in the context of academia is the fact that faculty members’ speech on expertise-related matters often falls within the overlap between speech pursuant to faculty members’ official duties as scholars and their speech as citizens on matters of public concern.[71] That the speech in question concerns the subject matter of the faculty member’s employment is not dispositive, nor is the fact that the faculty member spoke on campus as opposed to within the public sphere.[72] Thanks to this equivocal guidance from the Supreme Court, lower courts’ attempts to draw a line between protected and unprotected speech may seem more results-oriented than the product of clear, principled reasoning.[73]
In jurisdictions where academic speech is exempt from the Garcetti “official duties” rule, institutions have relatively less flexibility in subjecting faculty members to discipline for speech on matters related to their expertise.[74] However, courts in these jurisdictions must still apply the Pickering balancing test to weigh the faculty member’s interest in expression versus the institution’s interest in promoting the efficiency of the public services it performs through its faculty. Institutions with legitimate pedagogical concerns—such as poor performance, teaching discredited theories, or scholarship rejected by the faculty member’s discipline—would likely find refuge in the Pickering balancing test, where the institution’s interest in maintaining solid pedagogy would outweigh the faculty member’s free speech interests.[75]
B. PEER REVIEW
What, if any, effect does Garcetti have on the peer review process for evaluation of teaching and research within the academic institution? Legal issues regarding the peer review process can arise on both sides of the coin. For instance, faculty who are denied promotion or tenure, or who receive a negative performance evaluation based in part on the recommendation of a peer review committee, may argue that the evaluators engaged in improper bias or discrimination based on race, sex, national origin, or other protected categories. They might also allege that the peer review itself violates the First Amendment because of bias against the faculty member’s area of expertise or political stance, giving rise to a First Amendment content claim.
The examples outlined above run to the heart of academic freedom. As well-known academic freedom scholar J. Peter Byrne has written, “The core of the scholarly norm of academic freedom is that non-academics such as trustees and administrators should refrain from interfering with scholarship and teaching, and leave evaluation of academic quality to scholarly peers (i.e., other professors primarily within the relevant discipline).”[76] With this in mind, colleges and universities have traditionally protected the sanctity of the peer review process, even to the point of maintaining the confidentiality of deliberative discussions and reviewer identity. However, colleges and universities also adopt the opinions and recommendations of these peer reviews when making personnel decisions. Courts addressing First Amendment claims in the peer-review context have tried to strike a balance between respecting the process of peer review within the context of academic freedom, on the one hand, while permitting institutions to address significant matters of improper discrimination (for example) on the other.[77]
C. FACULTY GOVERNANCE, COMMITTEE, & ADMINISTRATIVE WORK
Faculty participation in institutional governance—particularly in areas affecting tenure, research, and curriculum—has long been embedded in professional notions of academic responsibility in higher education.[78] Even jurisprudential protection for academic freedom focusing on the institution—arising from the “four essential freedoms”[ ]identified by Justice Frankfurter in his Sweezy concurrence and on which the Court relied in Bakke—finds common ground with the tradition of collective academic decision-making and consultation with trustees and administration. Every day, faculty senates and committees across the country work together with deans, department heads, and administrators to establish curricula, course offerings, and degree requirements. Depending on the institution, faculty committees and senates are asked to vet policies, review tenure disputes, and take positions on institutional direction, even in traditionally non-academic areas. Many colleges and universities have formal shared governance policies, faculty service requirements, and general expectations that faculty will give back to the institution beyond teaching and research.
Post-Garcetti, circuits have taken different paths, with some recognizing and others ignoring the concept of academic freedom as a carve-out from the official duties question. Some circuits have held that traditional notions of faculty participation in teaching, research, and service fall squarely within the faculty member’s duties and responsibilities to the institution (“official duties”) and do not recognize any special academic freedom protection under the First Amendment.[79] Other circuits recognize a limited carve-out from Garcetti’s official duties analysis for speech falling within academic freedom. The Fourth Circuit has recognized the concept of academic freedom for certain faculty speech.[80] The Ninth Circuit recognizes a legal definition of academic speech (speech on “scholarship and teaching”) that can arguably include faculty speech on internal governance matters. Depending on the case, the circuit might apply the Pickering balancing test to determine First Amendment protections for faculty speech falling within the scope of shared governance.
Institutions that face First Amendment challenges to personnel decisions should consider whether the faculty speech at issue is within the scope of official faculty responsibilities. Some practical questions include:
• Was the speech based on a personal grievance or made in response to a proposed policy?
• Do university policies or faculty by-laws outline an expectation that faculty will participate in certain institutional decisions?
• Does the college have a collective bargaining agreement that defines the scope of faculty governance or influence?
• Is the faculty member evaluated on “service” to the university such that participation on institutional advisory committees or hearing boards is rewarded or failure to participate negatively affects performance reviews?
The answers to these questions will help determine whether the faculty member was acting within the course and scope of their official duties. If the institution determines that the faculty member was acting within that course and scope, then whether and how the Garcetti analysis applies depends on the circuit in which the institution is based. In all cases, faculty will likely try to separate their activities and speech from their official duties for the best chance of receiving First Amendment protection.
D. INSTITUTIONAL RESPONSES TO BIAS
Many institutions are wrestling with appropriate and effective ways to respond to allegations of bias that seem to be reported with increasing regularity on many campuses, but do not necessarily rise to the level of creating a hostile or discriminatory environment prohibited at law. However minor the incident may seem to uninvolved observers or to the person whose comment is characterized as an incident of bias, the negative impact on the educational environment of the receiving employees or students can be significant, particularly when the behavior undercuts traditionally marginalized populations.[81] In response, some colleges and universities have created avenues for reporting bias incidents within the university community.[82] These reporting systems implicate First Amendment and academic freedom concerns, particularly when the reported statements are made by faculty or arise in the classrooms themselves and result in disciplinary action.[83]
Because of the subtle nature of some incidents of bias, the speech triggering a report may fit squarely within First Amendment protection for ordinary citizens. Additionally, many faculty have responded sharply that administrative measures to remedy perceived bias incidents through reporting impinge on their academic freedom because these measures will either punish those who speak out of turn on campus or will unconstitutionally chill effective classroom discussion and teaching.[84]
Colleges and universities that implement bias reporting processes must tackle important questions that run directly into constitutional First Amendment (and due process) analyses, particularly for public institutions. Will the institution allow for anonymous reporting? How will records be maintained and reviewed? Will there be disciplinary or adverse consequences for faculty and staff who are accused of bias? How will respondents defend their personal and professional reputations from abusive or bad faith reporting?
In circuits where courts have not carved out a post-Garcetti exception for academic speech, faculty fears may be realized if colleges and universities initiate and act on bias reporting systems, particularly in jurisdictions where courts have found that academic freedom protections inure to the institution, not to individual academics.[85] In circuits such as the Ninth, where Garcetti does not affect academic speech, courts will look to the facts and circumstances of any personnel actions through the lens of the Pickering test. Either approach seems difficult to navigate.[86] Ideally, institutions already have effective nondiscrimination and anti-harassment policies in place to prevent and respond to illegal discriminatory harassment on campus. Biased behavior, including speech and speech acts, would generally need to meet the level of “sufficiently severe or pervasive” conduct based on a protected class in order to trigger a legal obligation under most state and federal non-discrimination laws.[87]
Institutions that encourage reporting of behavior that may not rise to the level of a violation of institutional anti-harassment and anti-discrimination policies so that other interventions[88] can be used to prevent the behavior from crossing the line into harassment or discrimination should be cognizant of potential countervailing First Amendment implications as well as basic due process rights, employment contracts and handbooks, collective bargaining agreements, open records laws, and local defamation laws. Colleges and universities must be cautious when addressing allegations of bias that arise from pure speech and should be clear that they will not adversely act on protected speech alone.
E. SAFE SPACES & TRIGGER WARNINGS IN THE CLASSROOM
The term “safe space” as used on college campuses today can range from group-specific student or cultural centers where students are able to congregate, to pedagogical concepts in the classroom where students are assured that they can engage in a free exchange of ideas and experiences without subjective retaliation or disapproval.[89] Part of the safe space lexicon is the “trigger warning.” In essence, a trigger warning consists of advance notice to students when the assigned material contains information or subjects that might trigger difficult emotional responses for students with past trauma.[90] They may allow students who are uncomfortable with the materials or concepts to be discussed to opt out of participating.[91]
Both concepts have strong proponents as well as detractors. Some faculty believe that trigger warnings are pedagogically important and use them on their syllabi or in their classrooms. They defend trigger warnings as allowing students who are sensitive to certain subjects to mentally prepare themselves to encounter those subjects and to manage their responses to them,[92] or to request alternative assignments if encountering the material would be overwhelming.[93] Other faculty believe strongly that such warnings—and their outcomes—are akin to censorship in the classroom, effectively forcing academics to alter fundamental pedagogical methods and curricula to avoid backlash from students.[94] Critics of safe spaces and trigger warnings within and outside academia focus on the negative impact such concepts have not only on the intellectual rigor and maturation of our youth, but on fundamental First Amendment concepts and ideals.[95] If mandated by the institution, trigger warnings arguably erode the First Amendment rights of all members of the university community by requiring forewarning regarding the content of certain speech.[96]
Concerns over trigger warnings and safe spaces on campus led the American Association of University Professors Committee A on academic freedom and tenure to release a report in August 2014 urging that “[i]nstitutional requirements or even suggestions that faculty use trigger warnings interfere with faculty academic freedom in the choice of course materials and teaching methods.”[97] More recently, the University of Chicago’s Dean of Students sent a letter to each incoming first-year student in August 2016 proclaiming that the University’s “commitment to academic freedom means that we do not support so-called trigger warnings . . . and we do not condone the creation of intellectual safe spaces where individuals can retreat from ideas and perspectives at odds with their own.”[98] Other institutions have formally endorsed the Chicago statement.[99]
However, creating safe spaces and requiring the use of trigger warnings in college classrooms may not be the constitutional quagmire that the AAUP believes them to be, since such tools may have the goals of reducing the obstacles that some students face and increasing access to curriculum, both of which lie within the institution’s academic purview. Yet even if the required use of safe spaces or trigger warnings does not implicate judicial notions of academic freedom, such requirements may still run afoul of professional notions of academic freedom, free expression, and (quite possibly) local faculty expectations created and enforced at the institutional level under policies or collective bargaining agreements. In light of these dilemmas, colleges and universities can and should explore alternative and more effective responses to the cultural issues that are at the heart of use of these concepts on campus.[100] Finally, while required trigger warnings will certainly generate debate, there may be some circumstances in which trigger warnings are valuable, such as when they are used as a pedagogical tool or as an accommodation for student disabilities or issues related to disabilities. These issues are beyond the scope of this Note but are important to consider nonetheless.
CONCLUSION:
Academic freedom’s relationship to the First Amendment is complex in part because courts’ definition of academic freedom varies from how campus communities have traditionally understood it. While the original understanding of academic freedom would grant faculty members free reign to engage in expression, under current law, a public institution’s interest in preserving the efficiency and integrity of the services it provides to the public often takes precedence over the rights of individual faculty. Indeed, it is well-established that institutions of higher education have their own academic freedom rights protected by the First Amendment, and that these rights must, at a minimum, allow those institutions to ensure quality scholarship and teaching. Unless and until the U.S. Supreme Court takes up the question of whether or how Garcetti applies to academic speech, institutions must pay close attention to how their respective jurisdictions interpret the Garcetti caveat when considering whether and how to discipline faculty members whose speech or opposition to institutional requirements may be subject to academic freedom protections.
ENDNOTES:
[1] Stephanie S. Rosenberg is a Senior Associate General Counsel at the University of Arizona in Tucson. Her practice area focuses on employment and student affairs matters. Prior to joining the University, Ms. Rosenberg served as the General Counsel to the Humble Independent School District near Houston, Texas and as an associate attorney with Bracewell LLP.
[2] David A. Urban is senior counsel at Liebert Cassidy Whitmore in Los Angeles, California. He has successfully represented higher education clients in First Amendment litigation in federal and state courts, and has experience in a broad range of labor, employment, and education matters, including those involving wage and hour rules and Title IX.
[3] Christina Pesavento is a past Law Fellow at the National Association of College and University Attorneys (NACUA), where she was involved with a variety of NACUA’s legal services. She currently works as an editorial manager for a public policy research organization in Washington, DC.
[4] See, e.g., Report of the Committee on Freedom of Expression, UNIV. OF CHI. (January 2015) (reflecting the University of Chicago’s commitment to freedom of expression).
[5] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
[6] Id. at 425 (stating that the Court would not “decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship and teaching”).
[7] One can look at the question another way: When a public college or university allows a faculty member to exercise discretion in their scholarship or teaching and the faculty member exercises that discretion, is the faculty member’s expression part of their official duties? This articulation of the question does not assume that faculty have fundamentally greater free expression rights than other public employees, i.e., that they might enjoy the special status of being partially exempt from the Garcetti “official duties” rule.
[8] Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 603 (1967). At least one scholar has pointed out that, although the “special concern” language of Keyishian is often quoted, it
is more accurately described as a “rhetorical makeweight” than a concrete rule of law. Scott R. Bauries, Individual Academic Freedom: An Ordinary Concern of the First Amendment, 83 MISS. L.J. 678, 678–79 (2014).
[9] Lawrence White, Fifty Years of Academic Freedom Jurisprudence, 36 J.C. & U.L. 791, 796 (2010).
[10] AM. ASS’N OF UNIV. PROFESSORS, 1915 DECLARATION OF PRINCIPLES ON ACADEMIC FREEDOM AND ACADEMIC TENURE (1915).
[11] White, supra note 8, at 802.
[12] AM. ASS’N OF UNIV. PROFESSORS, 1940 STATEMENT OF PRINCIPLES ON ACADEMIC FREEDOM AND TENURE (1940) [hereinafter 1940 Statement].
[13] Id. The Statement notes that the primary function of higher education institutions is not to promote the interests of individual faculty members or even those of the institution, but to further the public welfare through the search for truth. Id. In emphasizing this purpose, the Statement expressly ties the preservation of academic freedom to the ability of institutions to carry out their ultimate purpose for existing. Id.
[14] Michael H. LeRoy, How Courts View Academic Freedom, 42 J.C. & U.L 1, 11 (2016); Rachel B. Levinson, “Academic Freedom, Shared Governance, and the First Amendment after Garcetti v. Ceballos” (AAUP 31st Annual Conference), at 3 (Feb. 2011). State contract law determines whether these documents are legally enforceable. Id. For guidance on the legal status of faculty handbooks and related documents in a specific state, see Am. Ass’n of Univ. Professors, Faculty Handbooks as Enforceable Contracts: A State Guide (2009).
[15] Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion).
[16] See infra, Part III.A.
[17] See infra, Part III.A. (quoting Regents of University of California v. Bakke’s “four essential freedoms” of the university).
[18] See infra Part III.A. (discussing Sweezy and Keyishian).
[19] Larry D. Spurgeon, The Endangered Citizen Servant: Garcetti Versus the Public Interest and Academic Freedom, 39 J.C. & U.L. 405 (2013).
[20] See infra, Part III.A.
[21] 547 U.S. 410 (2006).
[22] Id.
[23] Garcetti, 547 U.S. at 425.
[24] 354 U.S. 234, 263 (1957).
[25] Id. (quoting a statement from University of Cape Town and University of the Witwatersrand).
[26] 385 U.S. 589, 595–96 (1967).
[27] Sweezy, 354 U.S. at 250 (plurality opinion).
[28] Keyishian, 385 U.S. at 603.
[29] Id.
[30] 438 U.S. 265 (1978).
[31] Id. at 312 (Powell, J., writing for the majority) (quoting Sweezy, 354 U.S. at 263 (1957) (Frankfurter, J., concurring)).
[32] See Connick v. Myers, 461 U.S. 138, 147 (1983) (holding that the respondent’s discharge for distributing a questionnaire to coworkers regarding internal office policy did not offend the First Amendment).
[33] See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006) (reversing the judgment of the Ninth Circuit).
[34] Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
[35] A further vital element of a First Amendment retaliation claim under 42 U.S.C. §1983, developed by circuit courts and beyond the scope of the discussion here, is that the employee suffer an “adverse employment action.” See, e.g., Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (noting that “adverse employment action” is a necessary part of a public employee’s free speech retaliation claim). An adverse employment action is one that is “reasonably likely to deter” an employee from engaging in constitutionally protected speech. Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir. 2003). The Ninth Circuit has “cautioned that “a government act of retaliation need not be severe . . . [nor] be of a certain kind” to qualify as an adverse action. Id. at 975. All the same, some harsh employer conduct has failed to qualify. “[M]ere threats and harsh words are insufficient” to constitute an adverse employment action. See Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998). Coszalter, citing Nunez, acknowledged that an employee’s being “bad-mouthed and verbally threatened” did not qualify as an adverse action. Coszalter, 320 F.3d at 975.
[36] Clairmont v. Sound Mental Health, 632 F.3d 1091, 1106 (9th Cir. 2011) (quoting Garcetti, 547 U.S. at 418).
[37] Id. (quoting Huppert v. City of Pittsburg, 574 F.3d 696, 701 (9th Cir. 2009) (emphasis omitted)).
[38] Id. (citing Connick, 461 U.S. at 150–51).
[39] Nichols v. Dancer, 657 F.3d 929, 933 (9th Cir. 2011) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 979 (9th Cir.1998)).
[40] Garcetti, 547 U.S. at 411.
[41] Id. at 421–22.
[42] See Garcetti, 547 U.S. at 438–39 (Souter, J., dissenting, quoting majority opinion). Justices Stevens and Ginsburg joined in the opinion. Justice Souter wrote: “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.’” Id.
[43] Id. at 425 (emphasis added).
[44] Id.
[45] See id. The full quote from the majority opinion is as follows: “[] Justice SOUTER suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 1969–1970. 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.” See also Spurgeon, supra note 19, at 434–45.
[46] See Keyishian v. Bd. of Regents of the Univ. of N.Y., 385 U.S. 589, 603 (1967) (stating in context of a legislative attempt to regulate higher education, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom”).
[47] 624 F.3d 332, 340–43 (6th Cir. 2010).
[48] 216 F.3d 401 (4th Cir. 2000).
[49] Id. at 410 (emphasis added); see id. at 410–11.
[50] 640 F.3d 550 (4th Cir. 2011).
[51] Id. at 560-67.
[52] 746 F.3d 402 (9th Cir. 2014).
[53] Id. at 412.
[54] Id. at 406–09.
[55] The faculty member also alleged First Amendment retaliation for his having circulated excerpts of his in-progress book The Ivory Tower of Babel, but the Court of Appeals determined there was insufficient evidence of retaliation based on this alleged speech and did not proceed further with the legal analysis. Id. at 406–09, 413–14.
[56] Id. at 414–15.
[57] Id. at 415–17.
[58] Id. at 413.
[59] Id.
[60] Id.
[61] Id.
[62] See generally Bauries, supra note 8 (arguing that the U.S. Supreme Court has not recognized academic freedom “as a unique or ‘special’ individual right under the First Amendment that inheres only in academics”).
[63] See Evans-Marshall v. Bd. of Educ., 624 F.3d 332 (6th Cir. 2010); Williams v. Dallas ISD, 480 F.3d 689 (5th Cir. 2007); Gilder-Lucas v. Elmore Cty. Bd. of Educ., 186 Fed. Appx. 885 (11th Cir. 2006).
[64] See Meade v. Moraine Valley Comty. Coll., 770 F.3d 680 (7th Cir. 2011); Van Heerden v. Bd. of Supervisors of La. State. Univ., No. 3:10-CV-155-JJB-CN, 2011 WL 5008410 (M.D. La. 2011); Adams v. Marquette Univ., 2018 Wisc. 88 (Wisc. Jul. 6, 2018).
[65] See Fisher v. Univ. of Tex. at Austin, 579 U.S. __ (2016); Grutter v. Bollinger, 539 U.S. 306 (2003); Sweezy v. New Hampshire, 354 U.S. 234 (1957).
[66] Supra Part II.A.
[67] See LeRoy, supra note 14, at 4 (asserting that many faculty members believe that the First Amendment’s protection of academic freedom encompasses all classroom and public speech).
[68] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978).
[69] See generally LeRoy, supra note 14 (finding that public institutions prevailed in over 70 percent of First Amendment cases involving faculty speech from 1964 through 2014).
[70] Id. (finding that, from 1964 through 2014, institutions prevailed in 72 percent of First Amendment cases involving classroom speech and 64 percent of cases involving publications).
[71] As Justice Souter observed in his Garcetti dissent, faculty members “necessarily speak and write ‘pursuant to official duties.’” 547 U.S. at 438–39 (Souter, J., dissenting) (emphasis added).
[72] See Garcetti, 547 U.S. at 421 (holding that the fact that Ceballos’ speech concerned the subject matter of his employment was “nondispositive” to the First Amendment inquiry); id. at 420 (adding that the fact that Ceballos expressed his opinion within his workplace, as opposed to publicly, was similarly “not dispositive”).
[73] Spurgeon, supra note 19, at 435.
[74] This is also the case in jurisdictions where the Garcetti “official duties” rule applies, once a court determines that the faculty member was speaking as a citizen on matters of public concern.
[75] Demers v. Austin, 746 F.3d 402, 412 (9[th] Cir. 2014). For a list of these factors, as outlined by the Ninth Circuit, see the text accompanying notes 57–59.
[76] J. Peter Byrne, Neo-Orthodoxy in Academic Freedom, 88 TEX. L. REV. 143, 145 (2009).
[77] See, e.g., Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 451, 541 A.2d 1046, 1056 (1988) (“In the instant case we must balance the public interest in maintaining a confidential peer review process that protects the university’s academic freedom against our State’s strong public policy favoring disclosure and eradication of discriminatory treatment in employment.”).
[78] “The academic freedom of faculty members includes the freedom to express their views (1) on academic matters in the classroom and in the conduct of research, (2) on matters having to do with their institution and its policies, and (3) on issues of public interest generally, and to do so even if their views are in conflict with one or another received wisdom.” On the Relationship of Faculty Governance to Academic Freedom, AAUP (1994).
[79] See, e.g., Renken v. Gregory, 541 F.3d 769, 773–74 (7th Cir. 2008) (concluding that a professor’s speech complaining about the University’s use of funds was not protected by the First Amendment).
[80] See, e.g., Adams v. Trustees of Univ. of N.C.-Wilmington, 640 F.3d 550, 563 (4th Cir. 2011) (noting that “[t]here may be instances in which a public university faculty member’s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching. In that circumstance, Garcetti may apply to the specific instances of the faculty member’s speech carrying out those duties.”).
[81] For example, micro-aggressions have been the subject of much campus debate. They have been described as “everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.” Derald Wing Sue, “Microaggressions: More than Just Race,” Psychology Today (Nov. 17, 2010). As the term implies, these encounters can be brief and do not necessarily rise to the level of conduct that is “sufficiently severe or pervasive” such that they meet the legal standard for a hostile environment under Titles VI, VII, or IX. See generally Robin A. Lukes and Joann Bangs, A Critical Analysis of Anti-discrimination Law and Microaggressions in Academia, 24 RESEARCH IN HIGHER EDUC. JOURNAL, August 2014 (urging institutions to centralize their responses to microaggressions by creating structures of accountability and leadership).
[82] University of Oregon, Oberlin College, and University of Michigan are some examples of higher education institutions with bias reporting systems.
[83] These reporting systems, institutional responses, and their outcomes raise a number of additional legal, moral, and practical issues, which are beyond the scope of this Note.
[84] See Samantha Harris, “Unconstitutional ‘Bias Reporting’ Programs: A Nationwide Problem,” Foundation for Individual Rights in Education (Nov. 29, 2007) (discussing bias incident reporting systems at The College of William and Mary and other institutions).
[85] See, e.g., Edwards v. Cal. Univ. of Pa., 156 F.3d 488 (3d Cir. 1998) (concluding, among other things, that a professor did not have a First Amendment right to choose his classroom materials and subjects in contravention of the University’s dictates).
[86] See, e.g., Eugene Volokh, “UC teaching faculty members not to criticize race-based affirmative action, call America ‘melting pot,’ and more,” The Washington Post (June 16, 2015) (providing a critical review of microaggression response on campus).
[87] To the contrary, vague civility codes on campus generally fail First Amendment constitutional scrutiny. See, e.g., Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1988) (outlining constitutional minimums for speech codes).
[88] These interventions can take the form of coaching, counseling, group education, or application of other resources.
[89] See Katherine Ho, Tackling the Term: What Is a Safe Space?, HARV. POL. REV. (Jan. 30, 2017) (discussing the various denotations associated with the phrase “safe space”).
[90] See Leonor Vivanco & Dawn Rhodes, “U. of C. tells incoming freshmen it does not support ‘trigger warnings’ or ‘safe spaces’,” Chicago Tribune (Aug. 25, 2016) (citing a survey of more than 800 college educators that found a majority “think trigger warnings have or will have a negative effect on academic freedom.”).
[91] Alexander Tsesis, Campus Speech and Harassment, 101 MINN. L. REV. 1863, 1874–76 (May 2017).
[92] See, e.g., Kate Manne, “Why I Use Trigger Warnings,” N.Y. Times (Sept. 19, 2015) (noting that trigger warnings are not a new concept and they allow students to better manage their reactions to sensitive content).
[93] Tsesis, supra note 91, at 1868.
[94] See What’s All This About Trigger Warnings, NATIONAL COALITION AGAINST CENSORSHIP (Dec. 2015) (finding in a survey that many educators believe that trigger warnings have adverse effects on academic freedom).
[95] See Greg Lukianoff & Jonathan Haidt, “The Coddling of the American Mind,” The Atlantic (Sept. 2015) (“[v]indictive protectiveness . . . prepares [students] poorly for professional life, which often demands intellectual engagement with people and ideas one might find uncongenial or wrong.”).
[96] Tsesis, supra note 91. The number of higher education institutions that have formal trigger warning requirements for faculty classrooms is reportedly low. Samantha Harris, “Think Trigger Warnings Are Never Mandatory on Campus? Think Again.,” Foundation for Individual Rights in Education (Aug. 31, 2016).
[97] See On Trigger Warnings, AAUP, Committee A (2014) (“Trigger warnings . . . threaten the academic freedom of teachers and students whose classrooms should be open to difficult discussions, whatever form they take.”).
[98] The letter itself has triggered widespread debate regarding the role of free expression and subtle forms of marginalization on college campuses. Vivanco & Rhodes, supra note 90.
[99] Such institutions include Princeton University, Purdue University, American University, Columbia University, Georgetown University, and the University of North Carolina at Chapel Hill, among others.
[100] Institutional proclamations or requirements regarding trigger warnings and safe spaces, such as those issued by the University of Chicago or Drexel University in Philadelphia, raise more urgent issues for college campuses than simply questions surrounding academic freedom. They implicate the best way to address and educate students and the wider campus community on issues of bias, discrimination, and opportunity. For an extensive review of student climate issues and suggestions for response, refer to Hisham R.O. Khalid, Renee Navarro & Sidney R. Steinberg, “Microaggressions and Trigger Warnings in a Diverse Environment: Policy and Legal Implications,” (NACUA Annual Conference 2016).
This article was published originally published in NACUANOTES (National Association of College and University Attorneys) on December 3, 2018.