Thursday, May 2, 2024

Court to rule on faculty First Amendment rights

March 15, 2009

Speaking out could have potentially unwelcome consequences for faculty participating in academic governance.

A California case in the 9th U.S. Circuit Court of Appeals could define whether faculty speech during governance proceedings is protected under the First Amendment, said Steve Sanders, an attorney with the Mayer Brown law firm in Chicago, who is representing the American Association of University Professors, or AAUP, in the court case.

The AAUP is serving as a friend of the court in the case, which means it supports the plaintiff while, at the same time, not representing him.

The organization has asked to present arguments on his behalf, Sanders said.

English professor Sheila Teahan, president of the MSU chapter of AAUP, said it’s an issue of academic freedom.

“If this could become a pretext for upper administration, for someone to say, ‘I don’t like what you said and you’re fired,’ it’s a very dangerous precedent and a very dangerous case,” she said.

The case in California involves a chemical engineering and materials science professor, Juan Hong, who claims he was denied a raise because of his criticisms of the University of California, Irvine.

The university said he was denied the raise because of his research record, according to an article by Sanders in The Chronicle of Higher Education.

To win the lawsuit, Hong has to prove he was denied the raise because of his comments and not because of his performance at the university, Sanders said.

In a larger context, the court also will be setting a precedent on First Amendment rights of faculty, which is extremely important, he added.

Last September, a federal court ruled participation in academic governance was part of Hong’s duties as a professor, rendering his speech unprotected by the First Amendment, according to Sanders’ article.

Hong’s case is one of a few that have surfaced following a 2006 Supreme Court ruling, Garcetti v. Ceballos, which said a federal employee’s speech that relates to the employee’s job is not protected under the First Amendment, Sanders said.

In his dissenting opinion, Justice David Souter raised concerns about how the ruling would affect higher education, said Robert O’Neil, director of The Thomas Jefferson Center for the Protection of Free Expression in Virginia and a visiting professor of law at the University of Texas at Austin.

“If I’m talking to my superior about something, whatever the government agency, then that speech isn’t protected by the First Amendment and that was refined by the decision (Garcetti v. Ceballos),” Sanders said. “When the government is acting as an employer, it has an interest in an efficient workplace.

“The government can punish employees because the government is wearing its hat as an employer, not as a sovereign, and it’s taking action against an employee.”

This issue hasn’t appeared in the 6th U.S. Circuit Court of Appeals, which encompasses Michigan, Ohio, Kentucky and Tennessee, O’Neil said.

However, cases occurred in Wisconsin and Delaware.

Hong’s case in the 9th U.S. Circuit Court of Appeals and will take place some time later this year, Sanders said.

Support student media! Please consider donating to The State News and help fund the future of journalism.

Discussion

Share and discuss “Court to rule on faculty First Amendment rights” on social media.