Case before U.S. Supreme Court could limit free speech rights of professors

The U.S. Supreme Court has announced that it would rehear a case, Garcetti v. Ceballos, involving the rights of public employees.

Although the case does not directly relate to higher education, the Texas Faculty Association and its parent organization, the National Education Association, fear that an adverse ruling could significantly curtail the free expression rights of professors at public institutions. NEA has filed an amicus brief in the case.

The issue in Garcetti, according to NEA Assistant General Counsel, Michael Simpson, is whether the First Amendment protects public employees from retaliation for what they say on the job. The plaintiff in the case is a deputy district attorney from Los Angeles named Ceballos who claims that he was punished for writing an internal memo to his superiors disclosing that a deputy sheriff had lied in a sworn affidavit used to obtain a search warrant. Both parties agree that the subject matter of the memo—police malfeasance—is a matter of public concern, but the government employer (supported by the Bush administration) is arguing that Cabellos' speech is entitled to no First Amendment protection because he was speaking in his role as an employee, and thus it was constitutionally permissible to punish him for such speech.

If the Court accepts the government's argument, then college and university professors will enjoy no First Amendment protection from retaliation for classroom speech, or indeed for other speech uttered as part of their jobs (such as serving on the faculty senate).

By way of background, the Supreme Court first ruled in the Pickering case (1968) that public employers, including school districts and colleges and universities, cannot punish their employees for engaging in protected free speech activities under the First Amendment. In a 1983 decision known as Connick, however, the Court limited its holding in Pickering by ruling that a public employee's speech is entitled to constitutional protection only if the employee is speaking as a citizen on a matter of public concern, and is not entitled to constitutional protection if the employee is speaking as an employee on a matter of personal or private concern. Speech touches on a matter of "public concern" if it is of general interest to the public, but it does not if it concerns merely internal matters such as employee gripes or "office politics" and the like. If the employee's speech is not protected under the Connick rule, then it can be the basis for discipline or discharge without violating the First Amendment.

The case was first argued before the Supreme Court in October 2005. When the Supreme Court orders a rehearing in a case, its custom is not to explain why it is doing so. However, legal reporters for several publications have noted that when a new Supreme Court justice arrives (in this instance, Samuel A. Alito, Jr.), the votes of the justice who was replaced—Sandra Day O'Connor—no longer count if the decision has not been issued. Rehearings are likely when the departing judge leaves a 4-4 tie. The rehearing in Garcetti may not be great news for faculty members given Justice Alito's history of supporting state and local governments.

TFA President Janet Schmelzer said, "The Garcetti case is like a fire bell in the night. An adverse ruling in this case would be a disaster for free speech and academic freedom in our public institutions of higher education. We are thankful that NEA has filed an amicus brief."

Note: Some of the information above is drawn from the article, The Alito Impact, appearing in Inside Higher Ed on February 21, 2006.

 

Why Join TFA?

Testimonials from TFA members

What's New?

Letter from STFA President regarding the departure of Mary Aldridge

TFA Legislative Roundup

The TFA UTMB-Galveston chapter blog

2004-2005 Faculty Salary Data

Colleges and Universities

Community Colleges

From the Coordinating Board

An Overview of TRS and ORP for Employees Eligible to Elect ORP