The-Ave.US

This article is about biting the hand that feeds you, then the hand squeezing back.

Human nature being what it is, criticizing your employer, or even offering unwelcome suggestions, usually isn’t the best strategy to stay employed. Workplace free speech rights, and the related topic of whistleblowing, are national issues; but this article focuses on the specific subject of academic freedom and academic free speech at public universities and colleges in Washington.

Washington is an “employment at will” state.  This means employers can fire employees on whim, unless restricted by law or contractual right. Examples include anti-discrimination laws, civil service laws, union contracts, individual employment agreements, and tenure practices at schools and colleges including faculty codes that give academic staff legal rights.

On Jan. 29, 2014, the Ninth Circuit Court of Appeals (Ninth Circuit) issued its decision in Demers v. Austin, in which a tenured professor sued Washington State University administrators for allegedly retaliating against him for advocating that WSU’s communications program be separated into two departments and curricula.  The Court decided this advocacy was protected by the First Amendment, and reinstated Prof. Demers’ lawsuit, which had been dismissed by the trial court.

In a university setting, issues of free speech, academic freedom, and shared governance are closely intertwined.  As workplaces, institutions of higher learning have some unique characteristics, a fact the Ninth Circuit and Supreme Court of the United States (SCOTUS) have both acknowledged.  When thinking about conflicts between employers and employees involving free speech, keep in mind that courts will be mindful of employers’ legitimate interests in managing workplaces and directing the activities of their employees;  who, after all, are being paid to do the employer’s bidding.

The Ninth Circuit’s decision in Demers was influenced by five previous SCOTUS decisions.  The first of these is Pickering v. Board of Education (1968).  Pickering was an outspoken teacher who wrote a letter to a newspaper criticizing the school administration for spending money on athletics he thought should go to academic programs.  The school district had just lost two levy elections, so the school board and school administrators weren’t in a happy mood to begin with, and Pickering’s letter got under their skin enough that they fired him.  After losing in state courts, Pickering won in the Supreme Court, which concluded school policies are “a matter of public concern” about which citizens have a right to publicly express their opinions, and he didn’t give up that right simply because the school district employed him as a teacher.  

The second case is Garcetti v. Ceballos (2006).  Ceballos was an assistant district attorney who wrote an internal memorandum to his superiors claiming a police affidavit used to obtain a search warrant contained “serious misrepresentations.”  This led to a heated meeting between Ceballos, his superiors, and police officials.  Ultimately, his criticism of the police affidavit was rejected by both his superiors and the judge trying the case.  Ceballos wasn’t fired, but he was reassigned, transferred, and denied promotion.  He filed a federal civil rights lawsuit against his employer alleging retaliation for exercising his First and Fourteenth Amendment rights by criticizing the police affidavit.  After the District Court dismissed his lawsuit, the Ninth Circuit decided he was entitled to a trial, but the Supreme Court disagreed, saying Ceballos’ memorandum and verbal statements to his superiors about the police affidavit were not constitutionally protected because he made them as an employee and not as a private citizen.  Quoting the court, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  

This makes sense.   Employers are entitled to evaluate the performance of their employees, and you could argue that given that both his superiors (who presumably were experienced prosecutors) and the judge disagreed with Ceballos’ criticism of the police affidavit. hi superiors could reasonably entertain doubts about Ceballos’ competence.  For all we know, there were other things in Ceballos’ work record not mentioned in the case opinion that also influenced his superiors’ evaluation of his performance.  It’s certainly not unheard of for managers to rid themselves of underperforming or unsatisfactory employees by transferring to other departments within their organizations, i.e. foisting them off on some other manager.  That’s often much easier and less unpleasant than firing the employee.   

After the Ceballos decision came out, some commentators thought it eviscerated the principle established by Pickering, but these two cases can be harmonized.  If we assume most employers don’t like being told by their employees how to run the shop, and are inclined to remove such thorns by sending them packing, it’s one thing for a citizen to criticize a public policy of a public entity in a public forum, and another thing to submit something to your boss that makes him think you can’t perform the job you were hired to do.  For example, if we pretend Ceballos was a bridge engineer instead of a lawyer, and he submitted a design with math errors in the load calculations, would any reader of this article dispute that the employer has right to fire the engineer for incompetence, or argue that his faulty calculations were protected free speech?  That’s the difference I see between the Pickering and Ceballos decisions, and on that basis, I don’t see why these decisions have to be inconsistent with each other.  Summarizing, the law will protect your right to express your opinion as a citizen, but won’t give you a right to screw up at work.

Demers’ case has some factual elements of both Pickering and Ceballos.  He was a WSU employee, and submitted a plan he developed of how to organize WSU’s communications program through channels while acting in his capacity as a faculty member; but he also went public with his plan, and argued for it in public as a private citizen who has a First and Fourteenth Amendment right to express opinions on matters of “public concern,” and how a public university organizes its academic programs certainly falls in that category.  Now let’s add to this brew what SCOTUS has said about public universities being a unique type of employer, which brings us to the third, fourth, and fifth cases.

In Keyishian v. Board of Regents, SCOTUS said, “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendant value to all of us and not merely to the teachers concerned.  That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.  ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'” The Ninth Circuit gleefully quoted this passage in its Demers opinion, further embellishing it with the following quote from Shelton v. Tucker:  “The essentiality of freedom in the community of American universities is almost self-evident ….  To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.  … Scholarship cannot flourish in an atmosphere of suspicion and distrust.  Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”  Finally, the Ninth Circuit also quoted this passage from Grutter v. Bollinger:  “We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”  Whatever that means.

At this point, keep in mind that a tenured university professor not only enjoys “expansive freedoms of speech and thought” that SCOTUS has indicated is deserving of exceptional protection under the First and Fourteenth Amendments, but also that he is not an “at will” employee because his tenure is an employment contract that limits the university employer’s discretion to discipline or fire him, which is enforceable in the courts in an ordinary contract action.  Like all employment contracts, tenure represents an employer’s voluntary surrender of a certain amount of the discretion at-will employers have to discharge employees, to an extent defined by the contract itself.

Free speech has many tentacles, and in academic settings, it cannot help but spill over into “shared governance,” a management structure unique to academic institutions.  Human nature is the same everywhere, and a university president or department head is as capable of feeling annoyed by a group of professors who want to participate in management decisions as is the owner of a blacksmith shop or fast food franchise, but people who accept employment as university presidents, chancellors, provosts, and other administrative positions in academic institutions are aware that dealing with professors who want a say in how things are run is part of the job and their skills in this regard are a factor in their selection for these positions.  At least theoretically.  But, human nature being what it is, that won’t prevent university administrators from taking offense at what they see as interference in their job function by people they regard as subordinates or employees.

As is plain from the Ninth Circuit’s opinion, Professor Demers was highly sensitive to a tension existing in WSU’s communications program between what he called “professionals” (journalists and editors) and academics or scholars.  He thought research and theory of communications should be separated from the teaching of practical journalism skills, which he divided into four categories:  Print, broadcast, public relations, and advertising.  I know exactly what he’s talking about, because Pop Rabbit was a revered midwestern journalist, I attended one of the country’s leading journalism schools, and also took journalism courses at Western Washington University, and I was a journalist before I became a lawyer.  I know all about what ink-stained reporters and editors are like, how they operate, and what it takes to get along with them.  These people do not fit your image of a scholarly professor who spends his time researching, thinking, and writing academic papers.  They usually have degrees, but not advanced degrees.  There’s no reason they can’t teach their craft to others; in fact, they probably can do that better than anyone else, just as a blacksmith or plumber is the person best suited to teach his trade to apprentices.  What Professor Demers wanted to do, in the court’s words, was “increase the influence of professionals and reduce the influence of Ph.D.s” in WSU’s communications department.  As the court put it, “In Demers’s view, the teaching of mass communications had lost a critical connection to the real world of professional communicators.”  It was not what the Ph.D.s who ran his department wanted to hear.

The Ninth Circuit concluded that whether WSU’s communications department should be structured with an academic focus or a professional orientation is “a matter of public concern.”  Having a degree in communications and being a former practicing journalist, I personally agree with that conclusion; in fact, to me it’s so obviously a fundamental issue of educational philosophy that it’s a forehead-slapper.  So I’ll skip the court’s discussion of this, because the issue I really want to get to is how much free speech university administrators have to put up with from tenured faculty who want to help them run the shop.

We get a hint of this from the three factual questions the Ninth Circuit returned to the District Court for determination:  “whether defendants had a sufficient interest in controlling or sanctioning Demers’s circulation of [his plan] to deprive it of First Amendment protection; whether, if [his plan] was protected speech under the First Amendment, its circulation was a substantial or motivating factor in any adverse employment action defendants might have taken; and whether defendants would have taken such employment action absent the protected speech.”  To further complicate things, the Ninth Circuit also suggested that if the defendants violated Professor Demers’s First Amendment rights, they might still have a qualified immunity from being sued based on a reasonable belief that their conduct was lawful.  The qualified immunity, which applies to good-faith actions of public officials exercising discretionary authority, is a limitation on liability for violation of civil rights laws created by the Supreme Court.  “Because there is no Ninth Circuit law on point to inform defendants about whether or how Garcetti might apply to a professor’s academic speech,” defendants in the position of the four WSU administrators sued by Professor Demers seem to be entitled to qualified immunity on a blanket basis, so that a plaintiff in this circuit in Professor Demers’s position can only get injunctive relief for a violation of his First and Fourteenth Amendment rights, and monetary compensation is not available.

The Ninth Circuit’s Demers decision leaves a lot of things up in the air.  It does not resolve the conflict between academic faculty who believe in the principle of “shared governance” and university administrators who don’t believe in it or seek to shove it aside.  A professor who suffers retaliation from a public university or college administration for expressing his opinion about how an academic program should be constituted or managed can go to the federal courts of this circuit for protection in the form of an injunction against the retaliatory actions, whether they be dismissal, demotion, transfer or reassignment, taking away classroom teaching assignments, or something else detrimental to the professor’s tenure, rank, position, or other aspects of his academic career.  So, academics have some freedom of academic speech, after all.  But just because you have legal rights doesn’t mean others will respect them; you may have to hire a lawyer and go to court to enforce them at considerable (possibly prohibitive) personal expense.  And having academic free speech, even where it is respected, doesn’t ipso facto translate into having a say in university governance.  That’s another issue for another day.

[Note about citations:  Because this article is written for a lay audience, I’ve omitted legal citations.  If you wish to read the actual decisions, you should be able to find them by searching with the case names.  If nothing else works, the Wikipedia articles on these cases provide the citations.  The Ninth Circuit’s opinion in Demers v. Austin is available here:  http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/04/11-35558.pdf]