A recent lawsuit against my own University by a colleague of mine alleging violation of his First Amendment rights to speech, exercise of religion along and due process has been dismissed on summary judgement in the U.S. District Court for Southern Ohio. The professor in this case is represented by The Alliance Defending Freedom. The dismissal follows a recommendation for dismissal by the magistrate judge in the same district. Both the magistrate Judge and the presiding Senior Judge are Democratic appointees to the Federal Bench. The facts of the case are relatively straightforward: the Professor refused to refer to a transgendered female in class in the same fashion as other female students, and was sanctioned with a written reprimand (full details are provided in the links above). Not surprisingly, this matter has received a substantial amount of national and local press coverage (see for example here and here).
Most accounts have focused on either the speech or religion clauses of the First Amendment. The speech clause issue addresses whether or not the refusal to use pronouns other than a student’s biological sex when addressing a student counts as protected speech under the First Amendment. The religion clause issue revolves around whether or not freedom to exercise one’s religion can exempt one from State and Federal Civil Rights Laws. The Judges in this case have both said no to both. In this post, I will focus solely on the implications of this case for the First Amendment rights of college and University faculty. In the interest of fairness, openness and continuity, I have incorporated an explanation and disclaimer at the end of this story as my name surfaces in multiple places in the Court documents.
Knowing as I do, the specifics of the case in some detail, I agree that there is a good argument to be made that in this specific instance, the speech should not be protected. Notably, this case did not involve classroom discussion in a philosophy class about the philosophical implications of transgenderism. However, the Judges in this case did not simply rule on the specifics of this case and make a finding that the interests of the student to be free from discrimination outweighed the Professor’s rights to discuss the subject matter. Instead, both the Magistrate Judge and the Senior Judge, citing Garcetti v. Ceballos as binding precedent ruled that when acting in their capacity as public employees, University Professors have no, as in zero, Constitutionally protected First Amendment rights. The implications of this ruling are troublesome. Given that the Judges in this case are Democratic appointees it might be tempting for conservatives to point the finger at them specifically. But the fingers should actually point to the Court’s conservative majority and the kinds of judges for whom the Alliance Defending Freedom and other similar organizations have expressed praise.
Let’s note, that in the first instance, it is not necessary to deny First Amendment protections to Faculty in the performance of their job duties in order to protect students from discriminatory conduct. It is a settled matter of law, that even outside the scope of one’s employment, there are some exceptions to the free speech clause of the First Amendment such as slander and defamation, true threats, child pornography, harassment and in some interpretations, fighting words. Students in public Universities in most instances have this same level of Constitutional protection when present on campus, whether they are speaking outside the classroom or speaking in the classroom. That protection does not however preclude Universities from sanctioning students for verbal harassment on the basis of protected characteristics that create a hostile or intimidating educational environment. Physical assaults of any kind are of course not protected under the First Amendment under any circumstances.
University and College Professors however have long assumed that the scope of protected speech in the conduct of their duties of teaching, research and service was protected by the concept of academic freedom as an extension and special case of the First Amendment. With respect to the classroom, academic freedom is about the freedom to discuss the subject matter of the class. Speech which creates a hostile environment on the basis of protected characteristics in the classroom is exempt from protection under the umbrella of academic freedom as that concept has traditionally been understood in academia. This does of course leave significant room for arguments about how to define and implement the hostile environment standard in the classroom and how wide a latitude should be accorded to classroom discussions of the subject matter. In my view, where the discussion is legitimately focused on matters relevant to the course material, classroom discussion should be granted wide latitude. But in this particular case, the issue was not about classroom discussion. The Professor was not engaging in a discussion about the philosophical implications of transgenderism. The issue was about how the Professor addressed a student. Consequently, it’s likely that given the circumstances, the Professor would have lost even had a more robust application of protection for academic freedom been applied. In deciding this case however, the Court rendered the above issues irrelevant by baldly asserting that there are no effective First Amendment rights for faculty when they act as employees: period, full stop.
To understand the far reaching implications of Garcetti, some discussion of the issues implicated by the decision will prove instructive. Even outside of academia, Garcetti is a disturbing precedent. In Garcetti, a lawyer working for a District Attorney’s office criticized the way in which search warrants were being handled in a memo to his supervisor. His supervisor disagreed and allegedly reassigned him to other duties as a consequence of his memo. Though the facts of the case are in dispute, the case was not decided on the facts, but rather on the principle that District Attorney employees do not have the right to criticize potentially unconstitutional conduct by a District Attorney’s office. Thus a police officer would not necessarily have any Constitutional protection for blowing the whistle on the use of excessive force by his fellow officers, though that officer might be protected under some whistle blower statutes or department regulations. In deciding Garcetti, the Supreme Court departed from its older “balancing test” standard. But it did not create a binding precedent for higher ed, but instead left the issue to be decided for another day. Yet the Sixth District Court in this case treated the application of Garcetti to higher education as binding precedent, thus making, rather than following precedent.
Yet amidst all of this there is a curious irony which should not go unappreciated. Conservatives may once more wish to point to this case as an example of liberalism and political correctness run amok. They would be plain wrong to do so and should instead point the finger at their own favored Justices. If one reviews the history of First Amendment cases with respect to public employees, in each and every case it has been the conservative Justices who have used salami tactics to progressively slice away the slender protections for workplace speech of earlier balancing test cases until doing away with it entirely in Garcetti. And it has been the moderate and liberal judges who have dissented at every step. Conservative opposition to the First Amendment in the workplace however, did not stop the Conservatives from breaking with precedent to suddenly embrace First Amendment protections for public employees in ruling against public unions requiring non Union members to pay “fair share fees.”
Yet even in the earlier balancing test cases conservative majorities for the most part expressed skepticism regarding the First Amendment rights public employees. The cases were decided by slim majorities and the narrowness of First Amendment protection in these cases notably drew substantive dissent from more liberal Justices. In a later case the Court’s conservative majority ruled that a private lunchroom conversation about standards of patient care in a public hospital did not deserve First Amendment protection. Again, the decision drew substantive dissent from the Court’s more liberal Justices. Curiously, had the plaintiffs in cases such as Connick or Churchill been engaged in discussion over workplace issues as part of a concerted action or with fellow Union members in effort to bring attention to their grievances, their speech might have been protected, even as private employees. Yet the vagueness of the standards for the First Amendment rights of public employees, even before Garcetti could only have a chilling effect on speech. Garcetti did away that vagueness by making the First Amendment in the public workplace a dead letter in the public for all intents and purposes.
If as initially decided Garcetti raises concerns outside of academia, its application to higher ed is particularly concerning and will undo established understandings. At a time when higher ed was enmeshed in the Red Scare, and Universities sought to eliminate suspected Communists from the Faculty, the Courts in a series of decisions, ruled that loyalty oaths were unconstitutional. In the landmark case, Keyishian v. Board of Regents the Supreme Court ruled that academic freedom is in fact a special concern of the First Amendment and decried the possibility of the imposition of “a pall of Orthodoxy” on College Professors. Yet the danger of imposing that same “pall of orthodoxy” is now very real. It is effectively impossible for a Professor to speak as a private citizen on a matter of public concern while simultaneously performing her duties. When I speak in my classroom on wage gaps and other issues related to workplace discrimination, about standards for enforcement of war crimes or international gender disparities I am not speaking as a private citizen. I am doing my job and my job is to present the truth to students in accordance with the standards of the discipline. In fact, to speak as a private citizen , rather than as a scholar and teacher on such matters in the classroom, would in most circumstances, be inappropriate. When I engage in research and publish, I am doing my jog and when I speak in a committee meeting or the Faculty Senate, I am doing my job. In order to do that job effectively my right to speak freely on the matter at hand is essential.
Because the job of a college or University Professor is fundamentally about speech, the overwhelming majority of higher ed institutions, both private and public, at least pay written lip service to the AAUP statement on academic freedom as a matter of policy in a Faculty Handbook or as articulated in a Collective Bargaining Agreement. On paper, Shawnee State University is committed to protecting both Academic Freedom as a particular principle as well as the concept of First Amendment speech outside the scope of employment and compares favorably to many other institutions both public and private in terms of its stated commitment to academic freedom. The Faculty Collective Bargaining Agreement has a very clear and strong statement on Academic Freedom and protection for speech outside the context of official performance of one’s duties. Recently, the University Faculty Senate, with approval by the administration has voiced support for a slightly modified version of the Chicago Statement. The University’s stated Title IX and related policies incorporate the right to discuss troubling and controversial issues in class. In practice, the climate for academic freedom at Shawnee State has been mostly positive.
But with Garcetti, the force of these statements is undermined and the promises in the statements are in danger of becoming empty words. Presumably, Faculty may still avail themselves of the grievance and arbitration process to uphold the relevant provisions of the Collective Bargaining Agreement, or sue in Court for breach of contract. But the Sixth District Court, Ohio’s Attorney General’s Office, and Shawnee State University are crystal clear that they do not believe that written promises and statements of policy insuring academic freedom, public Universities are deserving of Constitutional protection. Under these circumstances, faculty to have to cast a nervous glance over their shoulders lest a lecture that is too controversial, a journal article that is too provocative, or a statement on e-mail or in the Faculty Senate, or eve a blog post that a University administrator simply dislikes could bring the threat of official sanction. I am fortunate perhaps, that my job does not require me to maintain a blog.
If the case discussed at the beginning of this post does, as I suspect it will, end up at the Supreme Court, the conservative majority will face an interesting quandary. If they now decide Garcetti is indeed binding precedent for higher ed, then they must face the fact that Universities will be Constitutionally free to censure any viewpoint: left or right. This cuts against the grain of some conservative groups that have argued for a more expansive interpretation of the First Amendment in public Universities and would expose much of the hollowness and opportunism of these groups. How they will apply the exercise of religion clause in this case is unclear. If they decide Garcetti should not apply, then they risk undermining their established precedents, unless, as they sometimes do, they argue for a special pleading. In any event, I’ll give no cheers for Garcetti.
The views expressed in this post, as always, are solely my own. There is no clause in my contract that says writing blog posts is part of my official job duties and I am not speaking in any capacity for any organization. Since my name surfaces in the lawsuit in several places, I believe some clarifications are in order.
Firstly, I wish to make clear that it is my view that in cases where students have officially communicated that they wish to be referred to in a manner other than their biological sex at birth, that wish should be respected. It has been my own policy in my classroom to make a good faith effort to address any student how he or she wishes to be addressed and I believe this is a courtesy we owe to our students. I ask my students to call me Professor. A few times a week I put on white pajamas, ask students to follow elements of Japanese etiquette and call me Sensei though none of us are Japanese.
I am proud to count transgendered people among my friends. After this matter became public, the student received a number of threats, a fact which must be viewed as deplorable by any reasonable person. I do not know the student involved, but it is my hope that she, or any other transgendered student would be fully comfortable in my class.
This issue first arose during a period of time when I was the President of the Shawnee Education Association, the Faculty Union. In that capacity I advised members to comply with the stated University policy and to refer to and address transgender students in accordance with their stated gender. When this specific matter came to a head, I was no longer the President but had taken on the role of grievance committee chair. The Union President at that time represented my colleague in the disciplinary process and I represented my colleague in the grievance process. As a Union, it is our duty under Ohio Law to represent all members of the Union equally. As grievance committee chair it was my duty to represent my colleague in the grievance process in a grievance that was sanctioned by the Union through the normal channels. As noted above, I do not agree that the use of requested pronouns of necessity implies philosophical agreement. That said, though I disagree with my colleague’s views, he was entitled to a defense and the grievance process is a part of that. In addition, there were specifics of this case that deserved to be heard and there were potential compromises that were put on the table and rejected.
For the record, I do not believe that there was any negative motivation by any person involved based on religion. The statements expressing hostility towards religion that are attributed to another colleague of mine in the original complaint, are in my view, unlikely to have been said by that person. At best the comments reflect misinterpretation and/or were taken out of context. That noted, those statements in and of themselves should also be accorded protection for academic freedom.
My colleague who filed the suit is a long standing and respected member of the Faculty with whom I have some deeply rooted philosophical differences. Yet my colleague has contributed in genuine ways to viewpoint diversity at the University, and his expressions of his Conservative political and religious views have been appropriately accorded protection by the concept of academic freedom.