The Deconstitutionalization of Academic Freedom After Garcetti v. Ceballos?

Date01 March 2012
Published date01 March 2012
Subject MatterArticles
/tmp/tmp-17bWTUsIbhS0IB/input 421494ROP32110.1177/0734371X11421494Rob
ertsReview of Public Personnel Administration
Review of Public Personnel Administration
32(1) 45 –61
The Deconstitutionalization
© 2012 SAGE Publications
Reprints and permission:
of Academic Freedom
DOI: 10.1177/0734371X11421494
After Garcetti v. Ceballos?
Robert North Roberts1
The supreme court in Garcetti v. Ceballos (2006) held that public employees do not
have constitutional rights to speak out on matters of public concern in the course
of the performance of their official duties. The article examines the First Amendment
freedom of speech rights of faculty employed at public universities and colleges
before and after the Garcetti decision by examining lower federal court decisions.
It argues that lower federal courts have applied Garcetti to the intramural speech,
further limiting the freedom of speech rights of faculty members engaged in university
governance activities. The article also argues that lower federal courts have not ruled
on whether Garcetti applies to the classroom speech of college faculty.
discipline, education/teaching personnel administration, grievance, issues, legal/consti-
tutional issues, workplace environment/culture
In 1915, the American Association of University Professors issued a Declaration of
Principles on Academic Freedom and Academic Tenure
(2009, p. 67). The Declara-
“challenged the conception of the professor as the servant of an institutional mas-
ter, both in carrying out the institution’s teaching and research missions” (2009, p. 67).
Instead, the Declaration argued that the academic freedom of faculty members was
essential to facilitate the free flow of ideas and inquiry in and outside of the classroom.
Subsequently, many public and private universities adopted policies stating that schol-
ars had a right “to a set of vocational liberties: to teach, to investigate, to do research,
and to publish on any subject as a matter of professional interest, without vocational
1James Madison University, Harrisonburg, VA, USA
Corresponding Author:
Robert North Roberts, James Madison University, 239 Campbell St, Harrisonburg, VA, 22801-4013, USA

Review of Public Personnel Administration 32(1)
jeopardy or threat of other sanction . . .” (Van Alstyne, 1972, p. 146). The scope of
these protections, however, depended almost entirely on the willingness of institutions
of higher learning to grant such protections on an institution by institution basis.
Beginning in the mid-1950s, the U. S. Supreme Court gradually began to grant lim-
ited constitutional protection to faculty members at public universities and colleges. In
the 1956 case of Slochower v. Board of Education, the court held that New York City
illegally fired a Brooklyn College professor for invoking his Fifth Amendment protec-
tion against self-incrimination during questioning before the Internal Security
Subcommittee of the Committee on the Judiciary of the United States Senate. During
the hearing, Slochower invoked his Fifth Amendment right to remain silent with
respect to his membership in the Communist Party in 1940 and 1941. When called to
testify before the Committee, Professor Slochower was no longer a member of the
Communist Party. In the 1967 case of Keyishian v. Board of Regents, the high court
struck down the constitutionality of a provision of the New York State law that required
teachers and college faculty to take a loyalty oath as a condition of continued employ-
ment. In dicta the court stressed the importance of academic freedom.
Our Nation is deeply committed to safeguarding academic freedom, which is of
transcendent value to all of us and not merely to the teachers concerned. That
freedom is therefore a special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the classroom. (p. 603)
Despite the dicta in Keyishian, the court did not grant special constitutional status
to academic freedom.
In Pickering v. Board of Education decision (1968), the court specifically recog-
nized the freedom of speech rights of public employees including college and univer-
sity faculty. The court held that public employees, including faculty employed by
public colleges and universities, had a First Amendment right to speak out on matters
of public concern. The right, however, was not absolute. To determine the scope of the
freedom of speech rights of public employees, the court adopted a balancing test that
required the balancing of “the interests of the [employee], as citizen, in commenting
upon matters of public concern and the interest of the State, as an employer, in promo-
ting the efficiency of the public services it performs through its employees” (p. 568).
This requirement came to be known as the Pickering freedom of speech balancing test.
Even though the Pickering decision dealt with the freedom of speech rights of a public
high school teacher, the Pickering decision made no effort to distinguish between the
freedom of speech rights of teachers and other public employees. The 1979 Givhan v.
Western Line Consolidated School Dist
. decision significantly expanded the freedom
of speech rights of public employees by holding that Pickering applied to the work-
place speech of public employees.
The expansion of public employee freedom of speech rights came to an abrupt halt
in Connick v. Myers (1983). The Connick majority held, as general rule, that com-
plaints of employees regarding the day-to-day management of public agencies do not

involve matters of public concern and therefore are not entitled to First Amendment
protection. Specifically, the Connick majority argued that “government officials
should enjoy wide latitude in managing their offices, without intrusive oversight by
the judiciary in the name of the First Amendment” (p. 146). Four years after the
Connick decision, however, the Court in Rankin v. McPherson (1987), gave public
employees a major victory by overturning the firing of an employee of a local
Constable’s office for commenting at her place of work “If they go for him again, I hope
they get him” (p. 379). She uttered these words shortly after learning of an assassina-
tion attempt against the life of President Ronald Reagan. (Rosenbloom, 1994, p. 505).
After finding that her speech involved a matter of public concern, the Rankin majority
found, largely due to her clerical responsibilities in a small office, that her comment
did not unduly disrupt the operations of her agency. In reaching its decision, the Rankin
majority stressed “the manner, time, and place of the employee’s expression are rele-
vant, as is the context in which the dispute arose” (p. 388).
To the disappointment of defenders of the freedom of speech rights of public
employees, Rankin did not indicate the surrender of forces on the court opposed to
broadly construing the freedom of speech rights of public employees. In Waters v.
(1994), a plurality of the supreme court authorized public employers to dis-
cipline public employees for their speech if the employer reasonably believed that the
employee engaged in disruptive speech not protected by the First Amendment. From
the perspective of public employers, the Waters decision had one major catch. To be
eligible for judicial deference regarding the content of an employee’s speech required
the employer to conduct a fair investigation to determine what the employee actually
said (Kandel, 1994, pp. 291-293; Rosenbloom, 1994, pp. 505-506). Not surprisingly,
some scholars regarded Waters as a significant expansion of the constitutional rights
of public employees, whereas other scholars viewed the decision as a major setback.
In Garcetti v. Ceballos (2006), with little warning, the high court moved aggres-
sively to deconstitutionalize the freedom of speech rights of public employees (Roberts,
2007, pp. 171-184). To the Garcetti majority, Pickering improperly stripped public
employers of their management prerogative to discipline their employees for their
workplace speech. Like their private sector counterparts, public managers needed broad
discretion to control workplace speech to maintain organizational efficiency. “Proper
application of our precedents thus leads to the conclusion that the First Amendment
does not prohibit managerial discipline based on an employee’s expressions made
pursuant to official responsibilities,” stressed Justice Kennedy speaking for the major-
ity (p. 424). The Garcetti majority left little doubt that it believed a direct relationship
existed between organizational discipline and efficiency. “Official communications have
official consequences, creating a need for substantive consistency and clarity. Supervisors
must ensure that their employees’ official communications are accurate, demonstrate
sound judgment and promote the employer’s mission,” continued Kennedy (p. 434).
Yet, the Garcetti majority faced a problem of how to reconcile its sweeping restric-
tion on the freedom of speech rights of public employees and the doctrine of academic
freedom. Instead of addressing the question, the Garcetti majority decided not to

Review of Public Personnel Administration 32(1)
answer the question. “There is some argument that expression related to academic
scholarship or classroom instruction implicates additional constitutional interests that
are not fully...

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