A "great" day for academic freedom: the threat posed to academic freedom by the Supreme Court's decision in Garcetti v. Ceballos.

• Author: Rosborough, Robert S., IV

1. INTRODUCTION

   He claimed the terrorist attacks of September 11, 2001 were an "inside job," planned by United States government officials and the Central Intelligence Agency. (1) He cited reports from French daily newspaper Figaro and Radio France International that chronicled a meeting between an agent from the CIA and Osama Bin Laden two months prior to the attacks. (2) He stated that "fires could not have caused the collapse of the World Trade Center towers at free-fall speed," (3) but rather the destruction was brought about in a controlled demolition. (4) He believed that the Bush Administration had orchestrated the catastrophe "to justify military operations in Iraq." (5) And for his beliefs, they called for his job.

   In early June 2006, Kevin Barrett, co-founder of the Muslim-Jewish-Christian Alliance for 9/11 Truth (6) and a University of Wisconsin-Madison professor, articulated his views to conservative radio talk show host Jessica McBride and told her that he planned to discuss these views, along with the mainstream account of the 9/11 terrorist attacks, during one week of his class titled "Islam: Religion and Culture." (7) '"I always try to present all defensible sides of important issues. In this Islam course, I would present the dominant American interpretation of the so-called war on terror, as well as alternative interpretations, and let [the] students make up their own minds,' [Barrett] said." (8) However, despite Barrett's proclamation that he would not use his professorial pedestal to indoctrinate his students with anti-American propaganda, his remarks to McBride were met with calls for his termination.

   In a letter to Governor James E. Doyle and university administrators, 61 of the 133 Wisconsin state legislators condemned Barrett's "academically dishonest views" and demanded that the University remove him from its faculty for professing his "lies." (9) One of the most vocal lawmakers calling for Barrett's termination was Republican Representative Stephen L. Nass. (10) '"[The University] apparently ha[s] no limits to what can be taught in the classroom'.... 'Barrett has got to go,' Mr. Nass ... said. 'It is an embarrassment for the State of Wisconsin. It is an embarrassment for the university.'" (11)

   "Taxpayers are spending $1 billion a year on the University of Wisconsin, and my office is being flooded with calls and emails by people who are furious that their dollars are going to be spent teaching such falsehoods," Nass said. "If the university doesn't do something to stop this, then lawmakers will step in and try to deal with it. (12)" Barrett's remarks had so enraged the Wisconsin legislature that Nass and other legislators even went so far as to threaten that inaction on the matter could result in a cut in the University's public funding during the next budget cycle. (13) In essence, the Wisconsin legislators were threatening to force the University to fire the controversial professor merely because he had espoused beliefs many found abhorrent. Such threatened action brought concerns over academic freedom to the forefront of Barrett's situation, both on and off campus.

   The legislature's reaction left some of Barrett's colleagues on the Madison campus fearing the potential impact on academic freedom. (14)Donald Downs, a professor of political science, journalism, and law at the University and president of the Committee for Academic Freedom and Rights, (15) addressed his concern stating that no teacher should be precluded from teaching because of his views, no matter how radical. (16)

   '"You can't tell someone that they can't say these things because it's not what a moral person would think,' said ... Downs.... 'I'm a supporter of the war on terror. I'm offended by him having these beliefs. But it's censorship to say he can't say these things.'" (17)

   Dietram Scheufele, a professor of journalism and mass communication, echoed Downs's views, stating that the freedom of speech protected by the First Amendment becomes even more important when the viewpoint presented is one contrary to mainstream thought and that that "freedom [must] extend to the classroom" to allow professors to present all competing views on controversial issues. (18)

   Like Barrett's colleagues in Madison, many outside the Madison campus felt that the Wisconsin legislators' threatened intervention would imperil the freedom traditionally afforded those in academia. Robert Kreiser, a senior program officer in the Department of Academic Freedom and Tenure of the American Association of University Professors, (19) expressed concerned sentiments. (20) '"The more legislators introduce themselves,' Kreiser said, 'the more academic freedom is threatened."' (21) Jonathan Knight, a colleague of Kreiser's at the AAUP, mirrored Kreiser's fears. (22) '"The thing we do not need is legislative bodies deciding to fund, or not fund, education depending on whether they like what a faculty member says. To do so would create a chilling effect across education,' he said." (23)

   However, despite the legislature's threat to intervene, the University of Wisconsin-Madison administration remained committed to academic freedom and after a ten-day review of Barrett's proposed syllabus and readings for the class, Provost Patrick Farrell decided to allow Barrett to teach the one week segment devoted to the war on terror during his fifteen-week class on Islam. (24) Provost Farrell reiterated that it was academic freedom that commanded the decision rendered. (25) '"We cannot allow political pressure from critics of unpopular ideas to inhibit the free exchange of ideas,' Farrell said in a written statement." (26) Professor Barrett echoed that sentiment, saying, '"It's a great day for academic freedom and freedom of speech....'" (27)

   Yet, Barrett might not have been so cheery on that day had he known that the same views he espoused to Jessica McBride may not be protected had he articulated them in a lecture or in his research. Had he known that his status as a public employee could potentially leave his previously-protected speech unprotected under the United States Supreme Court's newest doctrine regarding public employee speech, his outlook might have been quite bleak. Could he have foreseen the potentially chilling implications for academic freedom that the Supreme Court's newest public employee free speech precedent presents, Professor Kevin Barrett likely would not have hailed the University's decision as "a great day for academic freedom."

   This Note will discuss the Supreme Court's May 2006 decision in Garcetti v. Ceballos (28) and its potential implications for academic freedom. Part II will discuss the definition of academic freedom from the American Association of University Professors, (29) which, in academia, is considered the authoritative source on the subject, and will also discuss the Supreme Court's recognition of academic freedom as an unwritten liberty protected by the United States Constitution. Part III will chronicle the Supreme Court's development of the public employee free speech doctrine, beginning with the seminal case of Pickering v. Board of Education. (30) Part IV will be dedicated to discussing both the Supreme Court's majority and dissenting opinions in Garcetti and the precedent set in that case. Finally, Part V will discuss the potential implications of the Garcetti decision on academic freedom and will offer a few solutions to the issues that need to be resolved.

2. ACADEMIC FREEDOM

   I would be remiss to begin a discussion of the potential implications of Garcetti upon academic freedom without first defining the phrase. So, what exactly is academic freedom? Many tend to align the concept with the rights afforded citizens under the First Amendment, such as freedom of expression, association, and publication. (31) While this comparison may be helpful as a point from which to start, there are many differences between the concept of academic freedom and those rights articulated in the Bill of Rights. (32)

   First, academic freedom applies only to faculty in academia, indicating that the concept derives from a faculty member's professional role as a scholar, whereas all citizens are afforded First Amendment rights. (33) Second, the First Amendment protects individuals only against intrusions by the states. (34) Academic freedom, on the other hand, protects faculty from intrusions by their institutions of higher education, whether public or private. (35) Finally, while the freedoms of expression are regarded as individual liberties, which equally protect individuals from abridgements of their rights, academic freedom does not function in this regard. (36) It does not protect individual professors from all regulation of their work and does not always protect all faculty members equally. (37)

   The function of academic freedom is not to liberate individual professors from all forms of institutional regulation, but to ensure that faculty within the university are free to engage in the professionally competent forms of inquiry and teaching that are necessary for the realization of the social purposes of the university. (38) Viewed in this context, academic freedom is a right of the profession, a right afforded scholars to search for the truth, communicate their findings without substantive filters, and encourage others to do the same. (39) However, this right is certainly not absolute; it comes attached with corresponding obligations. (40)

   1. The AAUP's 1915 Report on Academic Freedom and Tenure

      This delicate balance was first codified by the American Association of University Professors, an organization formed by Arthur O. Lovejoy and John Dewey to ensure the protections of academic freedom for faculty members, (41) in its charter document, the 1915 Report on Academic Freedom and Tenure. (42) In the 1915 Report, the AAUP began with the premise that "academic freedom was a necessary condition for a university's existence." (43)...