Professors’ free speech protected
Published: Tuesday, November 16, 2010
Updated: Tuesday, November 16, 2010 02:11
In response to recent federal and Supreme Court decisions that have challenged academic freedom and First Amendment rights of professors, the university Faculty Senate finalized a new amendment to its handbook at an Oct. 4 meeting in an effort to protect the free speech of university professors.
The amendment revised ambiguous language regarding free speech, giving faculty the right to freely address any matter, institutional policy or action of the administration. The revised policy now covers faculty governance, an aspect of academic freedom that allows professors to speak freely when discussing policies or changes in faculty or administrative structure.
"We now have a policy that's as strong as any I've seen at any university," said Jan Blits, chairperson of the Committee on Faculty Welfare and Privileges within the Faculty Senate. "Faculty governance is now broadly stated so that any forum in which I voice an opinion or anyone else voices an opinion on university matters would be protected."
Blits said there is a widening gap between administrators and faculty at colleges and universities across the country that is allowing professors to be denied merit increases, assigned extra teaching loads and even fired for critical comments made towards the administration. The actions of the administrators are backed by Garcetti v. Ceballos, a 2006 Supreme Court decision that limits the rights of government employees.
In that case, the court held that when public employees make statements pursuant to their official duties, the employees are not protected by the First Amendment.
"The Supreme Court studiously said the case has nothing to do with education, but these other cases in the lower courts of appeals are saying it does," said political science professor James Magee. "There's nothing illogical or logical about the spinoff of these other cases. There's nothing in those decisions that are surprising."
This specific ruling is largely why the Faculty Senate chose to take action, according to Faculty Senate President John Madsen.
"It became pretty clear that academic freedom, in terms of the faculty being able to express their views about work situations at the university, was going to be infringed by the ruling," Madsen said.
While the Garcetti case did not specifically deal with professors speaking out against a university, there are several other federal court cases involving freedom of speech issues where academic freedom of professors was challenged.
According to Blits, at the University of California, Irvine, a professor challenged the university's administration on several issues concerning appointments, promotions and staffing. He was subsequently denied a routine merit increase and assigned an increased teaching load. Drawing on Garcetti, the U.S. District Court for the Central District of California, Southern Division, ruled that the Constitution did not protect public employees when they speak out against administration.
In a second case, a tenured associate professor at the University of Wisconsin, Milwaukee criticized administrators for mishandling a grant awarded to him and several colleagues. The university reduced his pay and returned the grant, prompting the professor to sue, alleging illegal retaliation. The U.S. Court of Appeals for the Seventh Circuit ruled against the professor, saying that his statements were spoken in his capacity as an employee and therefore not legally protected speech.
Magee, who specializes in constitutional law and the United States Supreme Court, said each case must always be looked at contextually. The final 5-4 decision gives only the illusion of law because cases must be weighed on their merits, he said.
"There is no objectivity in constitutional interpretation besides the number five," Magee said. "If you get five judges, you control the outcome of a case. That is an inherent problem in the Supreme Court, but that's the price you pay for having an independent court with a tremendous amount of discretion."
Aside from this perceived flaw in the Supreme Court, the public is generally misinformed about the actual protections provided by the First Amendment, according to Juliet Dee, a professor of legal issues of the mass media.
"It's very sad and very unfortunate—that professors may be under the illusion that they have academic freedom," Dee said. "The general public believes the First Amendment protects our speech in any situation, but it doesn't protect employee speech ever."
The move by the university faculty is a stark contrast to the legal precedent set by the cases in California and Wisconsin. Administrators say they are fully behind the actions of the Faculty Senate and support academic freedom.
"The University of Delaware is taking a leadership position on academic freedom," university Provost Tom Apple stated in an e-mail message. "I strongly support the recent action by the Faculty Senate which ensures that faculty are free to speak their mind without fear of reprisal unless their statements or actions are unethical or incompetent. Academic freedom is essential to lively and open debate and discussion."
In light of the handbook amendment and support from administrators, professors like Dee feel secure in their jobs and comfortable in pursuing all aspects of educating.
"I think the amendment is wonderful—it's very well-written and well-thought out," Dee said. "I don't see any threats to academic freedom at all at UD. I think the administration has a very clear understanding of academic freedom, so I don't think those of us who teach here are in danger of consequences like what the other professors have suffered."