Today, Peter Schmidt has an excellent article at the Chronicle of Higher Education on the efforts of various professors to shore up academic freedom at their respective universities. This effort is entirely understandable, but I fear will ultimately prove ineffective.
As the article explains, in the aftermath of Garcetti v. Ceballos, the well-recognized protections of academic freedom were thrown into serious doubt. Garcetti held that speech related to a public employee’s “official duties” has no First Amendment protection. But it is self-evident that faculty members necessarily speak and write pursuant to their official duties. Recognizing the potential impact for professors, the Court reserved the issue of whether its reasoning “would apply in the same manner to a case involving speech related to scholarship or teaching.” Nonetheless, some federal courts have stepped into the void and applied Garcetti to nullify the free speech rights of academic personnel.
This move is troubling to say the least because it places professors in a Catch-22. They must constantly publish to inject their ideas into the stream of academic research and thought in order to have any hope of securing tenure or any subsequent promotion. But when they do so, they risk offending the colleagues and administrators who review their scholarship. Without the First Amendment, there is nothing to prevent these reviewers from shutting the door to future advancement based on the viewpoint and ideas of the budding professor. Thus, publish or perish may have become publish and perish.
With their backs against the wall, it is entirely understandable that professors are looking for protection from their academic institutions. But I fear that such efforts will not be effective.
First, as a matter of practice, who will enforce such measures but the same administrators and colleagues who make the tenure/promotion decisions in the first place? Even if an “independent” panel reviews an allegedly retaliatory personnel decision, such panels inevitably involve employees reviewing the decisions of their fellow employees about another fellow employee. In the often tight-knit academic community, this is hardly reassuring. But, more critically, such measures have already proven futile in the case of Dr. Michael S. Adams. The University of North Carolina system has multiple layers of policies expressly “guaranteeing” academic freedom for its professors both from the UNC Board of Governors and from the University of North Carolina-Wilmington. Yet, these “protections” did not prevent UNCW from denying Dr. Adams’ promotion to full professor based on the conservative opinions he expressed in his online columns.
Given the practical shortcomings of institutional protections, it appears this matter needs to be settled by the Supreme Court. For almost half a century before Garcetti, the Court recognized the “transcendent value” of academic freedom and the special place it holds in the First Amendment. The Court needs to clarify that Garcetti did not change this precedent and that the viewpoint of professors’ scholarship and teaching is still protected by the Constitution. The ADF Center for Academic Freedom is currently appealing this precise issue to the U.S. Court of Appeals for the Fourth Circuit for Dr. Adams because the district court wrongly used Garcetti to quash his First Amendment rights. For the sake of academic freedom, let’s hope the Fourth Circuit—and ultimately the Supreme Court—get it right.