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Professorial Speech and Academic Freedom: Balancing First Amendment Rights Against Administrative Responsibilities George M. Shur, Esquire General Counsel Northern Illinois University and Jonathan Mitchell 1 Introduction On October 9, 2001, the United States Supreme Court refused to hear an appeal by John Bonnell, professor of English at Macomb Community College near Detroit, thereby upholding a lower federal court’s ruling that Macomb had just cause to suspend him for, among other things, using vulgarity in the classroom. 2 Although dealt with in greater detail infra , Bonnell v Lorenzo involves many of the same fundamental issues which arise in the context of conflicts between administrators and academics in which academic freedom and First Amendment rights are implicated in the course of employment. In upholding Bonnell’s suspension for use of crude language, the 6th Circuit stated that “while a professor’s rights to academic freedom and freedom of expression are paramount... , they are not absolute... ,” to which Bonnell responded
(^1) Jonathan Mitchell is currently a third-year law student at Northern Illinois University - College of Law. 2 Bonnell v Lorenzo , 241 F.3d 800 (6th^ Cir., 2001), cert. den. 122 S.Ct. 347 (2001) (hereinafter Bonnell ).
that “the First Amendment is dead.” 3 Alternatively, Macomb welcomed the decision citing its “obligation to provide a hostile-free learning environment.” 4 Bonnell exemplifies the type of issues that arise where the rights of professorial speech and academic freedom conflict with what is typically the administrative responsibility of providing a non-hostile work and educational environment. Furthermore, Bonnell is instructive as current evidence of the historical progression of judicial decisions over the past fifty years, during which time the pendulum has swung away from protecting the rights of professorial employees and toward protecting state educational institutions in terms of meeting these responsibilities. In other words, governmental employers, state public schools, and state universities are required to navigate a sort of legal tightrope in balancing the interests of freedom of speech and expression, against the interests of confronting and eliminating harassment, whether sexual, racial, or otherwise. We can add to this the emerging right of institutions to do what is necessary to assure the efficiency of their own operations. This paper will examine how the balance has historically been struck in weighing the academic versus institutional interests in free speech, where the balance stands now, and provide some analysis of several recent judicial decisions that indicate the direction courts are moving. Part I briefly sketches the issues implicated under the First Amendment in the context of state employment with a general overview as to how such free speech issues are legally evaluated. Part II provides a chronological breakdown of cases interpreting the First Amendment regarding freedom of speech for state employed
(^3) Robin Wilson, Supreme Court Declines to Hear Suspended Professor’s First- Amendment Appeal , THE CHRONICLE OF HIGHER EDUCATION, 10 Oct., 2001, at A14. (hereinafter Wilson, Supreme Court ).
unprotected speech is falsely yelling “fire” in a crowded theater. 7 Other generally unprotected classes of speech include obscenity^8 , defamation^9 , certain pornography 10 , and so called “fighting words.” 11 Such forms of unprotected speech may be regulated or prohibited provided the government acts in a content neutral manner. If the speech is in a protected class, the next step is to determine if the speech touches upon a matter of public concern since this is one of the most protected forms of speech.^12 If the speech is not of public concern, then deference is usually given to the employer’s judgment in taking actions which regulate or limit such speech. Alternatively, the state cannot sanction or infringe upon employee speech that is protected without showing that such speech impaired the efficiency of governmental operations.^13 To establish that the government has violated an employees Constitutional right of speech, the employee must show speech involving a public concern, and that such speech was a substantial or motivating factor in the government’s decision to discipline the employee.^14 The government, however, may raise an affirmative defense if it can show that the discipline would have occurred regardless of the speech, or that the
(^7) See generally, Schenck v United States , 249 U.S. 47 (1919). (^8) See generally, Miller v California , 413 U.S. 15 (1973). (^9) See generally, Dun and Bradstreet, Inc., v Greenmoss Builders, Inc., 42 U.S. 749 (1985); 10 New York Times v Sullivan , 376 U.S. 254 (1964). 11 See generally, New York v Ferber , 458 U.S. 747 (1982). 12 See generally, Chaplinsky v New Hampshire , 315 U.S. 568 (1942). See generally, Connick v Meyers , 461 U.S. 138 (1983) (discussed in greater detail infra 13 ) (hereinafter Connick ). See generally, Rankin v McPherson , 483 U.S. 378 (1987) (discussed in greater detail infra 14 ) (hereinafter Rankin ). See generally, Jeffries v Harleston , 21 F.3d 1238, at 1245 (2 nd^ Cir., 1994). (discussed in greater detail infra ) (hereinafter Jeffries ).
speech significantly interfered with the operation of government.^15 In Jeffries , CUNY was allowed to predict an interference with its operations. Many other factors may come into play when analyzing free speech, but this brief sketch provides some indication of the type of balancing that takes place in such analyses involving governmental and employee interests. As applied to the university setting, free speech and academic freedom are the first defenses made when employment or administrative actions impinge upon speech. In the academic setting, policies toward protecting these two freedoms are jealously guarded. The policy statement of the American Association of University Professors [AAUP] states in part: “The teacher is entitled to full academic freedom in research and in the publication of the results subject to the adequate performance of his other duties.
... The teacher is entitled to freedom in the classroom in discussing his subject, but he should be careful not to introduce into his teaching controversial matter which has no relation to his subject.” 16 On the other hand, the AAUP has recognized that there are “special obligations of faculty members arising from their position in the community: to be accurate, to exercise appropriate restraint, to show respect for the opinion of others, and to make every effort to indicate they are not speaking for the institution.... [A]n institution may file charges... if it feels a faculty member has failed to observe the above admonitions and believes that the professor’s external utterances raise grave doubts concerning the professor’s fitness for service... .”^17 The standard, however, clearly includes that “a faculty member’s expression of opinion as a citizen cannot constitute groundsfor dismissal unless it clearly demonstrates the faculty member’s unfitness to
(^15) Jeffries , supra note 15, at 1246. (^16) 1940 Statement of the Principles on Academic Freedom and Tenure , ACADEME , Vol. 76, May-June 1990, 37-41. 17 Committee Statement on Extramural Utterances , AAUP POLICY DOCUMENTS AND REPORTS , 9th^ Edition, 2001, at 32. (hereinafter Extramural ).
designed to achieve the goals of Title VII and Title IX. These administrative responsibilities - - to protect the learning and employment environment, and, more recently, to assure smooth operations - - often come in conflict with the established academic policies of academic freedom and free speech concerns, such as the AAUP statements cited above. As the cases below will demonstrate, the balance between protecting the right of free speech for professors against the responsibilities of state employers to regulate the academic environment has not been constant. From the mid- 1950s onward, the balance has shifted from affording greater protection to academic freedom under the First Amendment to affording greater protection to the educational institution itself to administrate policies that affect academic freedom and free speech rights. Ultimately, the problem lies in whether a balance can be struck whereby the freedom from harassment and discrimination can be reconciled with the freedom of speech such that the growth and development of academic knowledge is not stunted. According to Robert M. O’Neil, the Director of the Thomas Jefferson Center for the Protection of Free Expression, the AAUP Committee on the Status of Women was especially sensitive to faculty speech which compromises the work atmosphere, and/or interferes with the institutional mission.^21 This is, of course, different from the earlier AAUP statements giving essential carte blanche to in-class utterances. Now we have the more modern realization that words can indeed alter the academic environment, can harass, and can hurt. From the AAUP perspective, this may have been resolved by a 1995 statement that harassing conduct or speech may be punished only if coercive or
(^20) 20 U.S.C.A. §1681 (1994). (^21) ROBERT M. O’NEIL , FREE SPEECH IN THE COLLEGE COMMUNITY 43-44 (Indiana University Press 1997) (hereinafter O’NEIL ).
directly abusive and, if during the teaching process, only if “persistent, pervasive, and not germane to the subject matter.”^22 But consider the source. As mentioned, recent court decisions (outlined below) have rejected the broad protection urged by the AAUP, adopting instead a more pragmatic or “politically correct” analysis designed to protect the listener and/or the institution/employer more than the faculty speaker. Part II A Chronological Sketch of the Historical Development of Free Speech Cases Relating to Educational and Governmental Employees One of the first and most important decisions in the twentieth century regarding education law arose in Pickering v Board of Education which eliminated the “privilege” doctrine of employment by recognizing that a teacher had constitutional rights against their employer.^23 Pickering was a teacher who was dismissed for sending a letter to a local newspaper criticizing the school board for mishandling school funds. The school board dismissed him, raising the “privilege” doctrine that a teacher owes a duty of loyalty to support one’s employer. The issue revolved around whether Pickering was employed by privilege requiring loyalty, or could speak out as a citizen on an important community issue.^24 Pickering’s right to free speech was upheld on the grounds that the boards alleged mishandling of funds was “a legitimate public concern.”^25 Pickering established a six-part balancing test of factors for weighing a free speech analysis in this context.
(^22) O’NEIL , supra note 22, at 44. (^23) Pickering v Board of Education , 391 U.S. 563 (1968) (hereinafter Pickering ). (^24) Pickering, supra note 24, at 568. (^25) Pickering, supra note 24, at 571.
provided the employee with a statement that the reason for termination was the public comments made to the radio station, but later succeeded to uphold the termination by showing further (largely circumstantial) evidence that was not originally mentioned in the notice of discharge. In this light, Doyle can be seen as an invitation to pretext. Connick v Meyers involved a state’s attorney who was fired on the grounds of insubordination for circulating an internal questionnaire regarding office morale, and other issues of potential employment dissatisfaction. She case claimed a First Amendment violation and relied upon the reasoning in Pickering , which ultimately gave the Court an opening to pull most of the teeth out of the Pickering balancing test. The Supreme Court held that the majority of the issues in the questionnaire were not of “legitimate public concern” and refused to consider the other balancing factors in Pickering.^30 In other words, absent a public concern regarding speech, employers are allowed wide latitude in how they perform their managerial duties. In Connick , it seems that efficiency took precedent over employees’ freedom of speech under the pretext that Meyer’s speech was not a matter of public concern. The decision seems to rely upon a factual finding, as a matter of law, that the public has no interest in the manner in which its government office in this instance is operated.^31
(^29) Mt. Healthy, supra note 28, at 287. (^30) Connick, supra note 13, at 148. (^31) Cf: Jett v Dallas Independent School District , 798 F.2d 748 (5th (^) Cir., 1986) (Holding that coach’s comments on players meeting NCAA guidelines was of public interest because players’ eligibility was a concern of the community.) See also, Hall v Ford , 856 F.2d 255 (D.C. Cir., 1988) (Recognizing public concern in athletic director’s comments regarding NCAA and UDC rules and guidelines on eligibility, scholarships, and grade eligibility, reversed on other grounds ).
Dube v State University of New York^32 exemplifies the extent that external pressures may potentially impact administrative decisions within the academic environment. In Dube , a black psychology professor drew public and political outrage for making in-class comments equating elements of Zionism with Nazism. During tenure review, the University dean, provost, and president denied him tenure despite some evidence that the faculty portion of the review was slightly favorable to his appointment. Dube brought a federal suit complaining of his denial. The suit, however, did not fall on all fours as a First Amendment issue in that Dube did not claim administrative retaliation for his speech, but rather as a result of the political and public pressure his speech created. The case thus turned, and fell, on his failure to show a legally protected interest for the court to recognize. Dube won a pyhrric victory. Although the court was uncomfortable with the specter of public/political pressure, it also found that Dube failed to articulate a legally recognizable interest in tenure. In line with Connick , is Bishop v Aronov finding that a teacher’s interjection of religious beliefs in in-class discussion was an issue of public concern, but ruled that the school had an overriding interest in avoiding the appearance of endorsing religion that outweighed the teacher’s Constitutional interests.^33 As in the above case of Dube , Levin v Harleston^34 involved a professor whose controversial speech precipitated public and political outrage. By contrast, Levin’s comments were mostly in-print, out-of-class, speech, arguing his opinion that blacks were typically intellectually inferior to whites. When the internal university policing
(^32) Dube v State University of New York , 900 F.2d 587 (2nd (^) Cir., 1990). (^33) Bishop v Aronov , 926 F.2d 1066 (11 th (^) Cir., 1991). (^34) Levin v Harleston , 966 F.2d 85 (2nd (^) Cir., 1992).
Jeffries was based upon external pressure to limit what was essentially extramural speech. The Supreme Court, however, overturned the decision, reasoning along the lines of the contemporary case of Waters, described infra , in which public employers are given the benefit of the doubt in regulating their employees - - even if that regulation is pro- active in anticipation of controversy. In this respect, Jeffries exemplifies the progression in which academic freedoms have given way, at least in New York, to the interests of institutional administrative regulation. In Waters v Churchill, a nurse in a government run hospital was terminated for making allegedly derogatory comments about her boss and the working conditions of her department. One version of the speech had Churchill complaining of her boss and the department, the other of hospital staffing procedures in general with her encouraging a co-worker to transfer to a different department. Upon termination, Churchill raised a claim of First Amendment violation. Despite the unresolved question of fact regarding which version of the speech was true, the Supreme Court held that the proper test was what facts the governmental employer reasonably believed to be true^36 in taking actions that limit the free speech of employees.^37 In fact, the employer terminated Churchill’s employment without any initial investigation into the incident. The effect of this ruling is to provide governmental employers with an even greater range of power over employee rights than in Connick.
(^36) Of course, this presumes a good faith determination being made on the part of the employer. 37 Waters v Churchill , 511 U.S. 661, at 671-680 (1994) (hereinafter Waters ).
In dissent, Justice Stevens commented that the interest in “efficiency does not demand an additional layer of deference to employers’ ‘reasonable’ factual errors.”^38 In essence, the majority lauds efficiency over free speech in this employment context. Waters is a fair example of the extent that free speech protection in the context of state employment has eroded with greater deference being paid the employer. It would seem reasonable to argue that a nurse’s comments made out of concern for the conditions of hospital management would be a matter of legitimate public concern that should be afforded protection, provided such comments further pass a First Amendment balancing test against state interests. The majority’s apparent concern for efficiency in governmental operation would seem to run counter to the effect of the actual holding in Waters which would chill otherwise legitimate speech that is in the legitimate public interest of correcting inefficiency. Instead, a cynic might argue, the Court’s decision rewards apathetic acquiescence to the current conditions of the workplace with the prize of continued employment. A contemporary case to Waters and Jeffries is Silva v University of New Hampshire 39 involving sanctions against a writing instructor on the grounds that his in- class speech constituted sexual harassment. In this case, Silva was alleged to make comments equating the process of writing with that of sex, and compared creativity to belly dancing. As a result, he was suspended and ordered to seek counseling. His federal suit against the university was upheld on the grounds of lack of evidence to support suspension. The holding in this case would seem otherwise unremarkable. In the following year, however, the AAUP issued a policy statement addressing the issue that
(^38) Waters, supra note 38, at 696-697.
attachment of a satirical essay lambasting the complainant entitled An Apology: Yes, Virginia, There is a Sanity Clause.^42 The Apology essentially consisted of a long, allegedly anonymous, diatribe against the complaining student with certain off-hand comments on the First Amendment. The College suspended Bonnell for three days and instructed him to stop circulating the materials. In response, he sent a copy of the complaint and Apology to two local television stations and a local newspaper, for which he was suspended for a semester. Bonnell brought an action for reinstatement on the grounds his First Amendment rights were violated by the suspension. Ultimately, the appellate court ruled that even though Bonnell’s right to free speech was violated, this right was trumped by the interest of the College in regulating the academic environment. Perhaps the two most salient features of this case is the succinct manner in which it sets out the test for analyzing a First Amendment issue, and the rather unsettling way in which the court appears to expand the notion of academic freedom to the entity of the educational institution itself. The modern test for a free speech violation as applied in Bonnell , requires that a: Plaintiff has to demonstrate that 1) he was disciplined for speech that was directed toward an issue of public concern, and 2) that his interest in speaking as he did outweighed the College’s interest in regulating speech. Connick v Meyers , U.S. 138, at 147-50 (1983) [string citation omitted] The inquiry into whether plaintiff’s speech is entitled to protection under the First Amendment as addressing a matter of public concern is of law for the court to decide. Rankin v McPherson , 483 U.S. 378, at 383 (1987) The inquiry into whether plaintiff’s interests in speakingoutweigh the College’s interests in regulating plaintiff’s speech is a factual determination conducted under the well known Pickering balancing test. See Pickering , 391 U.S., at 568 If plaintiff’s interests in the prohibited speech outweigh the College’s interests, then plaintiff’s First Amendment rights have been violated. Dambrot v Central Michigan University , 55 F.3d 1177, at 1186 (6 th (^42) Bonnell, supra note 2, at 806.
Cir., 1995) If the First Amendment violation was a substantial or motivating factor in defendant’s disciplinary action against plaintiff, defendant may present evidence that they would have disciplined plaintiff in the absence of his protected conduct. McHealthy v City Sch. Dist. Bd. Of Educ. v Doyle , 429 U.S. 274, at 285 (1977) However, if plaintiff’s speech does not involve a matter of public concern, it is unnecessary for the court to scrutinize the reason for the discipline. See Connick , 461 U.S., at 146. 43 The court recognized three acts of expression in applying this test to Bonnell’s in- class generalized use of profanity, his circulation of the complaint, and his circulation of his vitriolic attack upon his complainant in his Apology. In brief, the court found the general profanity used in the classroom to be unprotected speech because it “was not germane to the subject matter” of those in-class discussions. 44 Somewhat ironically, the court held that the circulation of the complaint and the Apology , although dealing with personal matters and written out the animus for retaliation, were protected forms of speech. The court reasoned that “it is well settled that allegations of sexual harassment,.
.. are matters of public concern,” which implies that the Apology is afforded First Amendment protection as it tangentially relates to those allegations. 45 After having acknowledged the protected nature of at least some of Bonnell’s speech, the court went on to determine that that his rights were outweighed by the College’s interests in maintaining an educational environment that is free from harassment and retaliation. In making this argument, the court reasoned that academic freedom is not solely a professorial right, but one that extends to the institution itself. The court states that “the term ‘academic freedom’ is used to denote both the freedom of the academy to pursue its end without interference from the government... and the
(^43) Bonnell, supra note 2, at 809-810. (^44) Bonnell, supra note 2, at 821. (^45) Bonnell, supra note 2, at 813 (quoting Connick, supra note 13, at 146).
not exist as an individual right, but rather adheres to the educational institution itself. As such, these two cases are inherently irreconcilable, with Urofsky being, perhaps, at the far end of the spectrum of the Pickering progeny. Part III A Comparative Evaluation of the Judicial View of Professorial Speech as Applied in Urofsky v Gilmore and Hardy v Jefferson Community College The holdings in Hardy and Urofsky are generally irreconcilable in that the court in Hardy applied the Pickering balancing test after determining the threshold question as to whether the content of the speech dealt with a matter of public concern. From there, the court moved on to determine whether the College had an outweighing interest in regulating that speech, and found it did not. By contrast, the Urofsky court performed an initial status test on the speaker to determine whether the speech is made primarily as an employee as citizen, or primarily as an employee. According to the Fourth Circuit, the First Amendment only protects against government regulation of its employees speaking as citizen, and not merely as an employee. In keeping with the reasoning in Waters, supra , the court recognized that government employers have broad discretion in regulating the speech of its employees beyond that of the public in general. In Urofsky , the court found that the professors’ speech in question was made solely in the context of their role as employees and provided no further analysis, or Pickering balancing. In addition, the court consequentially ruled that academic freedom does not exist on an individual professorial basis, but rather that any freedoms beyond the First Amendment to which citizens are afforded, falls to the institution. Thus, the suggestions in Bonnell , changing the nature of academic freedom, have been adopted - - at least in the Fourth
Circuit. The essential distinction between the reasoning of these two cases is whether the threshold question of a First Amendment analysis is to look at the content of speech, or the status of the speaker. Hardy involved a professor who taught Communication Studies. One of his courses focused upon the use of language as a means of “marginalizing minorities and other oppressed groups in society.” 47 The language used in the course involved several racial and gender based epithets. One African-American student contacted a local minister and civil-rights activist who brought her complaint of the language used in the course to the College’s administrators. Subsequently, Hardy contract was not renewed, thus giving rise to his complaint of a First Amendment violation. The court’s analysis begins with several quotations from Pickering, discussing a public employee’s right to speak on matters of legitimate public concern. In contrast to Urofsky , no consideration was given as to whether the speech was made as an employee citizen, or solely as employee. (However, it can be presumed that an instructor’s comments made during an in-class discussion are made as employee.) The court found, in distinguishing this case from Bonnell , that the speech was of public concern and protected because, although the speech contained profanity, it was germane to the discussion at hand. The court then moved on to balance Hardy’s protected speech against the College’s interests in regulating that speech. In brief, the court found no evidence that Hardy’s speech impaired the institution’s efficiency,^48 undermined its stated educational mission,^49 or disrupted school operations and enrollment.^50 Overall,
(^47) Hardy, supra note 6, at 675. (^48) Hardy, supra note 6, at 681. (^49) Hardy, supra note 6, at 682.
