Is Academic Freedom in Modern America on Its Last Legs After Garcetti v. Ceballow

AuthorSuzanne R. Houle
PositionB.A., University of Maryland at College Park, J.D.; University of North Carolina School of Law; and Member of the Maryland Bar
Pages265-291
IS ACADEMIC FREEDOM IN MODERN AMERICA ON ITS
LAST LEGS AFTER GARCETTI V. CEBALLOS?
SUZANNE R. HOULE*
I. INTRODUCTION
Many students who have recently a ttended instit utions of highe r
education can attest to the fact that sex has become a commonplace
discussion in university classrooms across the country. Sex in higher
academia appears to be discussed in almost every context—from
sociology, to b iology, to psychology, and even E nglish classes .1 What is
not always so clear, however, is what constitutes curriculum and what
constitutes an inappropriate, or even unlawful, digression by a professor.2
When deviation from the academic material occurs in this manner, the
potential for concerns about sexual hostility and harassment is raised.3
This paper argues that the doctrine of academic freedom and the
associated protections formerly afforded to university faculty members’
speech have been greatly eroded by the 2006 decision in Garcetti v.
Ceballos.4 This decision leaves faculty members, especially those who are
non-tenured, more vulnerable to adverse employment decisions with little
institutional and legal recourse. Additionally, Garcetti has the ability to
discourage university employees from speaking out against institutional
policies, procedures, and programs, while simultaneously suppressing
discussion of contentious topics, such as sex, in the classroom. In making
these arguments, this article highlights the current bright-line rule
pertaining to public employees’ free speech rights as pronounced in
Garcetti, where the Supreme Court of the United States held that public
speech made pursuant to official duties receives no First Amendment
Copyright © 2012, Suzanne R. Houle.
* Suzanne R. Houle, B.A., University of Maryland at College Park, J.D.; University of
North Carolina School of Law; and Member of the Maryland Bar.
1 See John E. Matejkovic & David A. Redle, Proceed at Your Own Risk: The Balance
Between Academic Freedom and Sexual Ha rassment, 2006 BYU EDUC. & L.J. 295, 295
(2006).
2 See id. at 296.
3 Id.
4 547 U.S. 410 (2006).
266 CAPITAL UNIVERSITY LAW REVIEW [40:265
protections.5 At first glance this result might seem helpful to both students
and administrators in that it appears to discourage tangential and
potentially controversial non-academic dialogue by faculty members in the
classroom. The majority, however, failed to anticipate the variety of ways
in which this decision inappropriately leaves public employees in
compromising situations. For these reasons, Garcetti’s significantly broad
and over-inclusive holding seriously erodes the principles and purposes of
academic freedom6 while forever changing the face of college classrooms
in America.
Part II of this article explores how academic freedom is currently
understood by looking at various definitions put forth by academics, the
American Association for University Professors (AAUP), and the
University of North Carolina. Part III examines the judicial underpinnings
of academic freedom and addresses how academic freedom has been
defined and established by the Supreme Court of the United States, as well
as the legal protections it is afforded. Part IV assesses the constitutional
protections afforded to university faculty members’ speech before
Garcetti, specifically looking at professors’ ability to teach sexually-based
curricula. Part V details the Supreme Court’s decision in Garcetti by
analyzing the majority and dissenting opinions. Part VI observes the
implications that Garcetti has on academic freedom by analyzing cases
from various circuits and examining what these decisions mean for
5 Id. at 422–26. Although Garcetti did not resolve the implications that the decision
potentially has on employees’ free speech rights and academic freedom, it is important to
note that Justice Kennedy, writing for the majority, noted that an argument could be made
that academic freedom is afforded greater constitutional protections. He wrote:
Justice Souter suggests today’s decision may have important
ramifications for academic freedom, at least as a constitutional value.
There is some argument that expression related to acade mic scholarship
or classroom instruction implicates additional constitutional interests
that are not fully accounted for by this Court’s customary employee-
speech jurisprudence. We need not, and for that reason do not, decide
whether the analysis we conduct today would apply in the same manner
to a case involving speech related to scholarsh ip or teaching.
Id. at 425.
6 See Robert S. Rosborough IV, A “Great” Day for Academic Freedom: The Threat
Posed to Academic Freedom by the Supreme Court’s Decision in Garcetti v. Ceballos, 72
ALB. L. REV. 565, 595–96 (2009); Judith Areen, Government as Educator: A New
Understanding of First Amendment Protection of Academic Freedom and Governance, 97
GEO. L.J. 945, 1000 (2009).

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