The question of whether the First Amendment protects the individual academic freedom of faculty members at public colleges and universities has resulted in divergent views among courts and legal scholars. In joining the ongoing discourse regarding constitutional protection for academic freedom, this article considers using academic freedom policies and standards voluntarily adopted by institutions as a basis to provide First Amendment protection for faculty speech at public colleges and universities. The article proposes that such policies present one alternative to help clear some of the legal fog regarding First Amendment protection for individual academic freedom, especially in relation to the U.S. Supreme Court's decision in Garcetti v. Ceballos and its applicability to public higher education. I suggest that it is legally inconsistent to permit colleges and universities to tout adoption of academic freedom policies and standards but then rely on Garcetti when facing a speech claim by a faculty member.
Uncertainty concerning constitutional protection for individual academic freedom represents a longstanding issue, but Garcetti marked a new phase in the ongoing debate. In the decision, the Supreme Court held that statements made by a public employee pursuant to carrying out his or her official duties do not constitute speech for First Amendment purposes. While acknowledging that applying the decision's standards to speech by faculty members at public colleges and universities potentially raised thorny First Amendment concerns related to individual academic freedom, the majority opinion in Garcetti stated that such an issue was not before the Court. In leaving the issue unaddressed, the case opened a new chapter in legal wrangling over constitutional protection for individual academic freedom in public higher education. Several recent cases where courts have unflinchingly applied the decision's standards to faculty speech show that the potential impact of the decision on faculty speech rights in public higher education is poised to become more than speculative.
Following an overview of the Garcetti decision in Part I, in Part II the article reviews several key U.S. Supreme Court decisions dealing with issues related to academic freedom. Part III of the article examines positions taken by lower federal courts regarding First Amendment protection for individual academic freedom, including discussion of several post-Garcetti cases. Part IV examines the position that constitutional academic freedom should only apply to institutions and not to individual faculty members.
The article considers in Part V using academic freedom policies and standards voluntarily adopted by public colleges and universities as a basis to ground legal protection for individual academic freedom, including limiting application of Garcetti to faculty speech. I conclude that courts should give serious consideration to such policies and standards as creating zones of legally protected faculty speech. Rather than supplanting the established system of peer review and professional norms widely accepted by colleges and universities, judicial inquiry would focus on whether institutions had in fact adhered to their own voluntarily adopted policies and standards. Such policies, in blunting the potential impact of Garcetti, could provide a basis to give some degree of First Amendment protection to faculty speech in the areas of scholarship, teaching, and intramural communications.
Hutchens, Neal H., "A CONFUSED CONCERN OF THE FIRST AMENDMENT: THE UNCERTAIN STATUS OF CONSTITUTIONAL PROTECTION FOR INDIVIDUAL ACADEMIC FREEDOM" (2009). Educational Policy Studies and Evaluation Faculty Publications. 2.