Appeals court delivers favorable affirmation of college faculty free-expression rights

A federal appeals court has recognized a heightened right of First Amendment protection for college instructors rooted in the doctrine of academic freedom, addressing a question that the U.S. Supreme Court had purposefully evaded.

In the case of conservative activist Michael Adams, who was denied tenure by the University of North Carolina-Wilmington, a federal appeals court decided Wednesday that the university can be liable for violating the First Amendment if the professor can prove that bias against his political writings was a substantial motivating factor.

Wednesday’s ruling from the Fourth U.S. Circuit Court of Appeals, Adams v. Trustees of the University of North Carolina-Wilmington, may end up testing whether the Supreme Court believes that college educators have the same minimal level of protection for on-the-job expression that applies to other government workers.

The ability of government employees to claim First Amendment protection when they are punished for what they say has been in steady decline for  decades.

In a 2005 ruling, Garcetti v. Ceballos, the Supreme Court decided that a public employee has no claim for violation of his First Amendment rights if he is punished for speech created “pursuant to his official duties.” But the Court pointedly refused to address whether the same principles would apply in the academic setting:

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.

Adams responds in part to the question that Garcetti ducked. Although speaking and publishing are essential parts of being a college professor, that does not mean everything a college professor publishes during his employment is attributable to his employer. A professor can speak out on matters of education policy — as Adams did — in his role as a citizen rather than as an employee:

Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.

Based on the Garcetti principle, a U.S. district judge threw out Adams’ claims against UNCW. The Fourth Circuit’s ruling reinstates the case, but in no way assures Adams of a victory. He still will have to prove that it was the viewpoints he expressed — rather than the lack of academic substance in his body of publications, a justification put forth by UNCW — that actually cost him his promotion.

While any First Amendment victory is welcome for public employees, the Adams case still does not resolve the central question of whether a college instructor’s speech that is, undeniably, a part of his employment enjoys any greater than the minimal Garcetti level of protection.

It  is now clear that the Fourth Circuit believes books and editorial columns written by professors are First Amendment-protected speech. What remains to be determined is whether lectures, class handouts and other on-the-job speech are to be judged by Garcetti — meaning that the employer in a retaliation case will invariably win — or by some standard more solicitous of academic freedom.