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Profs gain free-speech protection to criticize their universities

September 12, 2013

Academics have a First Amendment right to criticize the administration of their own public universities without being subject to any retaliation for doing so, according to a little-noticed decision last week from a panel of the Ninth Circuit Court of Appeals in San Francisco.

The author of the ruling? A former academic himself—from Berkeley. Judge William A. Fletcher is a law professor emeritus who regularly taught classes on the federal courts and the constitution at Boalt Hall before being confirmed for a federal judgeship in 1998.

The case at issue has the classic machinations of an imbroglio in academia. It was brought by former Washington State University tenured associate professor of mass communication David Demers. He had circulated a pamphlet on how his university should restructure its communications school to be less academic and instead embrace a more professional, practical emphasis. He also authored a book draft entitled “The Ivory Tower of Babel” that critiqued social science research, contending it “almost never has a direct impact on solving problems.”

This did not endear him to Washington State administrators, Demers said—claiming they were so irritated by his writings that they wrongly lowered his performance review scores, spied on his classes, blocked him from teaching basic communication courses, and instigated internal audits against him. University officials responded that their actions were warranted and in no way retaliation for his writings. Instead they blamed the consequences on Demers’ behavior after receiving tenure, which they said included his failure to publish scholarship in refereed journals, his insistence of giving online quizzes instead of appearing in person to teach Friday classes, his sporadic attendance at faculty meetings, and so forth.

A lower court had ruled that Demers lacked standing to sue over a First Amendment violation because, as an employee of the state university, he fell under restrictions the U.S. Supreme Court established in the 2006 case, Garcetti v. Ceballos. The high court held that government employees are not protected by free speech rights when they are making statements “pursuant to their official duties.” But that decision included a specific exclusion for situations in which public employees are speaking “as citizens about matters of public concern.”

It is that exclusion that Judge Fletcher and his fellow judges seized upon, contending that academics are special cases.

“We hold that Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor,” he wrote. 

“The nature and strength of the public interest in academic speech will often be difficult to assess. For example, a long-running debate in university English departments concerns the literary ‘canon’ that should have pride of place in the department’s curriculum. this debate may seem trivial to some. But those who conclude that the composition of the canon is a relatively trivial matter do not take into account the importance to our culture not only of the study of literature, but also of the choice of the literature to be studied.”

Adding that similar examples could be drawn from an array of other disciplines, Judge Fletcher noted: “Recognizing our limitations as judges, we should hesitate before concluding that academic disagreements about what may appear to be esoteric topics are mere squabbles over jobs, turf or ego.”

The appeals court panel tossed the Demers case back to federal district court, where in order to prevail, he will have to prove his charges of retribution.

By the way, Judge Fletcher was nominated to the federal bench by then-President Bill Clinton, his former Rhodes Scholar classmate at Oxford. His late mother, Betty Binns Fletcher, was a noted jurist who also sat on the Ninth Circuit.

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