I’ve written before about how Garcetti v. Ceballos makes virtually any speech by a public employee potentially subject to sanction but is a particular disaster when applied to Higher Ed. What the Supreme Court may someday make of the mess it created is yet to be determined. But in a ruling regarding my own University, Meriwether v. Shawnee State University, the Sixth District Court has at least recognized the nature of the problem. Some other Federal Courts have not while another appears determined to create even more confusion by drawing a distinction between teaching and research and acting as an employee. As I discuss below, this is creating a rather bizarre never never land, where Professors may need to have a Constitutional Law expert on speed dial before making any utterance. As I have argued before, when evaluating academic cases involving speech by University and College Professors made in the course of their duties, the Courts should look to the AAUP Statements on academic freedom and extra mural speech and not to the “public concern” doctrine. As matters stand, most Universities and Colleges profess at least some allegiance to these principles as matters of policy, and yet both they and the Courts seem to be willing to pretend that these statements don’t exist-at least when Constitutional concerns are raised. This rather curious state of affairs has notably in the past, included my own University.
So now let us consider, what is in fact, a matter of “public concern”. One would assume, for example, that because the discipline of Economics has extensive general ramifications for public policy, that speech, done in the course of teaching and researching about Economics would be considered a matter of public concern. But according to the New York District in Heim v. Daniel, which in any event does not recognize any exemption to Garcetti, this is apparently not so. In this case, an adjunct Professor of Economics, with a solid teaching and publication record, was denied a tenure track position because his research was in Keynesian Economics, rather than in Dynamic Stochastic General Equilibrium Theory (DSGE). The Court’s reasoning in this case has some disturbing implications. The Court argued that because DSGE is abstract and based in formal mathematics, it is not a matter of public concern. One implication of this is that there is no Constitutional protection when teaching math or any other similar subject, though perhaps Political Science and History Professors might retain some Constitutional protection in the classroom. But the Court may have inadvertently stumbled on to something here which a significant number of people within and outside of the Economics Profession have been saying for quite some time: a significant part of Economics is no longer relevant to, or useful for, the actual study of the Economy. In fairness to the Court however, this case raises an additional and thornier issue: Do Academic Departments have a right to hire, tenure and promote on the basis of ability to teach and research in a particular theoretical perspective? That question, has no easy answers but it is one I hope to return to in the future.
Another case , this one from North Carolina, rests on a distinction that will be lost to most academics, between doing one’s job, and engaging in teaching and research. In this case, a tenured Education Professor’s speech on curricular and hiring decisions raised concerns about his “collegiality.” He was accused, with apparently no actual substantive evidence, of being a bully by his Department Chair in e-mails and performance evaluations. He was subsequently removed from important committees and thus effectively marginalized in the Department. The Court ruled that because this speech was not related to teaching and research, it did not deserve Constitutional protection. The University is arguing in essence that his speech constituted misconduct. In reading the record of this case as described in the Court’s summary, it is difficult to see in the first instance, where there was in fact a breach of “collegiality” or any kind of misconduct.
Because this case involves a matter in which a Conservative Professor clashed with more Liberal colleagues, some have portrayed it as a new and devious way for “the left” to further purge academia of Conservative voices. That “collegiality” can and will be used as a means to attack those with whom one has ideological, or simply personal disagreements in academia is in my own experience over thirty years as a College Professor, a fact. I will note further, that as someone who has always considered his own views to be clearly “left”, I have argued previously that the general atmosphere of intolerance towards Conservative viewpoints is problematic. In this case, it does appear that ideological hostility played at least some role in the Chair’s decision to marginalize a colleague. Yet the use of “collegiality” as a criterion is not new, it has been, is, and will be used to marginalize anyone with whom those in power have a disagreement. This case moreover raises a number of other questions as to how a tenured Professor could be disciplined for alleged misconduct, with no actual investigation or even a semblance of a disciplinary hearing. Hence it has implications not just for free speech, but for the very concept of tenure. But as for the free speech implications, the Court is splitting a hair that really cannot be split between the performance of one’s duties on committees and performance of teaching and research.
Notably, the AAUP has opposed the use of collegiality as a criterion for tenure and promotion and also argued that the concept of academic freedom extends to committee work as well. What these two cases show is that the application of Garcetti to academia, even with exceptions, constitutes a clear and present danger to the concept of academic freedom. Conservatives might consider however, that the Court’s very narrow view of free speech rights of public employees in general, is not a product of Liberal Courts, but of a fundamentally Conservative judiciary intent on upholding the doctrine of employee as servant in public employment, including in academia.
Citizen Rat 