Back in March, a federal district court in North Carolina ruled that Dr. Mike Adams’ nationally syndicated columns were not protected by the First Amendment.  Dr. Adams—an accomplished criminology professor at the University of North Carolina-Wilmington—had simply mentioned his columns, books, and speeches in his application for promotion to full professor, but this was enough to remove them from the First Amendment umbrella according to the district court.  At the time, the decision generated concern in the higher education world, including Inside Higher Education, about the future of First Amendment rights for faculty.

Well, the next chapter in Dr. Adams’ quest to end discrimination against Christian and conservative professors has now unfolded.  Last week, ADF filed the opening brief in his appeal to the U.S. Court of Appeals for the Fourth Circuit.  And just days ago, the American Association of University Professors, FIRE, and the Thomas Jefferson Center for the Protection of Free Expression filed a friend of the court brief on his behalf.

Both briefs show how the district court misinterpreted the Supreme Court’s decision in Garcetti v. Ceballos by applying it to faculty members at public universities.  The Supreme Court specifically reserved this issue in Garcetti, and it did so for good reason.  After all, professors are required to publish their viewpoints and opinions in order to further their careers.  If the First Amendment does not protect those writings, “publish or perish” soon becomes “publish and perish.”  And it is encouraging to see organizations from across the ideological spectrum come together to defend these fundamental freedoms and to ensure that the university campus remains the marketplace of ideas.

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.

Both Inside Higher Ed and Minding the Campus highlight the latest example of academia serving as a network of leftist think tanks.  The “Cry Wolf Project”—organized by “prominent liberal academics”—is trying to rally faculty and graduate students to do “battle with conservative ideas.”  That is, the organizers will pay $1,000 for essays supposedly showing how conservatives “cry wolf” by exaggerating the consequences of leftist public policy proposals.  K.C. Johnson at Minding the Campus notes the organizer’s almost comically inflated sense of self importance and skewed definition of “scholarship.”  But this project illustrates a more disturbing divide between faculty who can speak freely and those who cannot.

Doubtlessly, plenty of faculty members will jump at the opportunity to write what are essentially opinion columns designed to “construct a counter narrative” impugning conservatives.  After all, the organizers are targeting the social sciences, where leftists outnumber conservatives by eight or nine to one (if not more).  Faculty get to use their “research skills,” list another publication on their resume, and perform the vital public service of undermining those who seek to “thwart progressive reform.”  As an added bonus, they get paid fifty cents a word and get their names in front of faculty from schools such as Harvard, Yale, and MIT.  All in all, it is a quick, easy, and financially rewarding way to polish up that next promotion application. 

However, the story is much different for faculty on the conservative end of the political spectrum.  For example, Dr. Mike Adams is a criminology professor at the University of North Carolina-Wilmington.  When he applied for promotion, he had published more peer-reviewed scholarly articles than all but two of his colleagues, had consistently high evaluations from his students, and had earned several teaching awards.  He also mentioned the column he writes on the side, covering a wide expanse of cultural issues but frequently highlighting abuses within higher education.  Because of his column, he lost the promotion, as his colleagues described his writings as “excessively puerile self-indulgence” that “generally detracted from the scholarship of the department.”  Apparently, when it comes to academia, all viewpoints are not created equal.

Or consider Scott Savage, whose story David Hacker recently highlighted.  As a librarian, he simply recommended a book for freshmen to read.  And this prompted sexual harassment charges and a vicious campaign of intimidation and harassment that forced him ultimately to resign.  Again, some viewpoints are more equal than others.

Sadly, the double standard extends beyond the faculty lounge.  For example, though the verdict was later reversed, Ward Churchill’s jury found that his university wrongly fired him for expressing views—odious and reprehensible ones, to be sure—that the First Amendment protects.  And Churchill is a professor with a fake ethnicity, no earned doctorate, and plagiarized articles.  Yet Dr. Adams’ and Mr. Savage’s cases never even reached a jury because the judges ruled that the First Amendment did not protect their speech.  For Dr. Adams, merely referencing his column on his application transformed it into part of his “official job duties,” stripping it of all First Amendment protection.  For Mr. Savage, because recommending a book did not qualify as “teaching” or “scholarship,” it also did not qualify as free speech. 

Media Matters describes the “Cry Wolf Project” as a “yawner,” arguing that lots of professors dabble in politics.  But when they advance leftist causes, they are rewarded and promoted.  And if they are challenged, the higher education world rises to their defense (as it did for Churchill), championing them as First Amendment heroes.  If they dabble in conservative causes, they are vilified and subjected to false but potentially career-ending misconduct charges.  And after they are told that the First Amendment does not protect them, leading higher education publications pile on, mischaracterizing the facts and the ruling.  Perhaps there is a slight imbalance here, but we must be careful lest we be charged with “crying wolf.”

A federal judge ruled Monday that nationally syndicated opinion columns written by a criminology professor at the University of North Carolina-Wilmington are not protected by the First Amendment because he referred to them on a promotion application.

ADF attorneys argue that the university refused to promote Dr. Mike Adams to full professor because of his religious beliefs and political viewpoints, as espoused through his columns.  They are considering their options for appealing the decision.

“Christian professors should not be discriminated against because of their beliefs.  No university should refuse promotion to an accomplished professor simply because it disagrees with his religious and political views,” said ADF Senior Counsel Jordan Lorence.  “We disagree with the court’s assessment that Dr. Adams’ speech is somehow not protected by the Constitution.  Opinion columns are classic examples of free speech protected by the First Amendment, and mentioning them on a promotion application does not change this fact.”

Adams frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998 when he was an atheist.  However, intrusive investigations, baseless accusations, and the denial of promotion to full professor followed his conversion to Christianity in 2000, even though his scholarly output surpassed that of almost all of his colleagues. Keep reading… »