Free Speech's Death By A Thousand Cuts

From The John William Pope Center and Alliance Defense Fund:

Clarion Call


Free Speech’s Death by a Thousand Cuts

The denial of controversial UNC-Wilmington professor Michael Adams’ promotion has worrisome implications.



By Donald A. Downs

July 20, 2010





An important free speech and academic freedom case merits attention because it appears to portend an erosion of the protection professors have traditionally enjoyed for their writings. The case is serious enough that the plaintiff, Michael Adams, has won the support of several free-speech groups: the American Association of University Professors, the Foundation for Individual Rights in Education, and the Thomas Jefferson Center for the Protection of Free Expression, in addition to the Alliance Defense Fund, which is representing him.



Adams is an associate professor of criminology at the University of North Carolina-Wilmington. He recently sought promotion to the rank of full professor, but the university turned him down. Adams claims that the university denied him the promotion because of its disdain for his conservative religious and political views and its hostile reaction to his opinion pieces (such as this) and speeches that have criticized faculty members and administrators at the institution. Adams maintains that by refusing to promote him, the university violated his First Amendment right to speak as a private citizen about matters of public concern. The federal district court that heard the case ruled summarily in favor of the university, and Adams has appealed the decision to the Fourth Circuit Court of Appeals.



This case is important for at least two reasons. First, it appears to be yet another instance of the ideological politics that have beset American higher education over the course of the last twenty-five years. Adams has provided evidence in support of his claim that his teaching and research have been exemplary, amply exceeding the norm at the school. According to the brief he filed before the Court of Appeals (written by the Alliance Defense Fund, a national legal organization that litigates on behalf of religious freedom claimants), he appeared to be headed toward promotion until he became an outspoken Christian and political conservative. Relations with his colleagues turned sour after these conversions, and were exacerbated by his columns, which often contained sharp criticisms of the UNC-Wilmington administration.



Although cases involving promotion can be murky, it seems plausible that Adams’ views played a role in the decision not to promote him.



The second, legal, aspect of the case is even more disconcerting. In reaching its decision to summarily dismiss the case, the district court concluded that Adams’ columns and other public comments were entitled to no First Amendment protection whatsoever—a decision that made the court much more deferential to the university’s judgment. Until a few years ago, legal precedents were more favorable toward the First Amendment implications of speech by public employees like Professor Adams. The First Amendment granted considerable, although not absolute, protection to public employees who criticized their employers. The Supreme Court had developed a two-part test known as Pickering-Connick (named for 1968 and 1983 Supreme Court precedents) to determine whether speech by a public employee was covered by the First Amendment.



Under Pickering-Connick, courts asked if the employee was speaking as a private citizen about a matter of public concern; if so, then the question was whether the negative effect on the institution (e.g., insubordination, morale, etc.) outweighed the public benefits flowing from the speech. Courts tended to be deferential to institutions in applying this test to higher education; but under this “balancing” test, public employee speech about matters of public concern at least had a fighting chance to prevail against the power of educational institutions.



The prospects of this fighting chance changed dramatically in 2006 with the Supreme Court’s decision in Garcetti v. Ceballos, which placed a heavy judicial hand on the balancing scale of Pickering-Connick. In that case, a supervising district attorney, Ceballos, had been disciplined for recommending in a memo that a case be dismissed because of questions surrounding the granting of the search warrant.



Even though he had addressed a matter of clear public concern, Justice Anthony Kennedy (writing for a 5-4 majority) concluded that Ceballos’ speech lay outside the realm of First Amendment protection because it was made pursuant to his official duties. “The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy,” Justice Kennedy wrote. “That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his superior about how best to proceed with a case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline.”



In a dissent, Justice David Souter expressed concern that the official duty exception adopted by the majority could seriously weaken the protections previously afforded to employee criticism. In a now famous observation, Souter predicted that the decision could have especially dire consequences for faculty members at public universities, whose official duties often extend to the realms of public discourse and internal debate. In conjunction with the evolving judicial doctrine of “government speech” (the nature of which lies beyond the scope of this short essay, but readers who want to learn more can read this essay) the Garcetti doctrine threatens to cripple intellectual and value diversity on campuses already afflicted with homogeneity of thought.



In Garcetti’s’ wake, a number of lower federal courts have indeed applied the “official duties” exception to a broad range of expression. In Renken v. Gregory a faculty member’s criticisms of how the university was handling a federal grant were deemed pursuant to his official duties. “To be made pursuant to official duties, an employee’s speech need not arise out of his ‘core’ functions but only be consistent with his general duties,” the court wrote. In Hong v. Grant, the court ruled that a faculty member was speaking within his official duties (and therefore not protected by the First Amendment) when he criticized his department’s hiring decisions and extensive use of less qualified lecturers to teach courses. In another case, a court remarked that a faculty member was speaking pursuant to his official duties when he disinvited the president of the university from giving a speech to the fraternity the faculty member advised.



Although disciplinary action may have been justified in some of those cases, the courts’ sweeping conception of what constitutes “official duties””—and the consequent withdrawal of First Amendment protection from such speech—could easily post a chilling effect on individuals or groups who want to criticize the practices and policies of their institutions. In an era characterized by what Alan Kors and Harvey Silverglate call “The Shadow University,” which has violated student and faculty liberty in the name of ostensibly higher ends (such as administrative power and “political correctness”), such immunizing of institutions from criticism would harm the public interest.



The Adams case represents the next step in the march of the “official duty” restriction on employee speech. The criticisms in Renken, Hong, and other precedents were made internally, not in public media. Adams, however, took his issues to the public—precisely the domain that the Pickering line of cases considered the most worthy of First Amendment protection.



Tenure and promotion cases can present difficult issues of judgment and departmental discretion regarding quality of work, defying simplistic determination. I do not know enough about the facts in this case to render a confident opinion about who is right or wrong, but the methodology employed by the court reflects a growing problem in the realm of academic freedom that cries out for attention.



The line of cases following Garcetti threatens to stifle or inhibit open criticism of higher education institutions by those who are in the best position to know what is going on inside them. For those of us who have devoted our careers to challenging some of the reigning orthodoxies of higher education today, Adams and its judicial cousins pose a serious challenge. One remedy is to marshal efforts to pass legislation within universities that protects employee speech about matters of public concern, as faculty senates at the University of Wisconsin-Madison and the University of Minnesota have done.



Otherwise, wait for a judicial mea culpa that might never come.