From Helena Worthen, Chair, HELU Media & Communications Committee
In the recent Contingency Task Force discussion on job security for contingent faculty, the Garcetti case was mentioned. Here is a non-lawyer’s shakedown of what Garcetti means when we’re talking about job security, whether one is contingent or not. Basically, Garcetti created a false logic to use for disciplining or dismissing faculty for exercising academic freedom.
This 2006 Supreme Court case, Garcetti vs Caballos, made it possible to argue in court that faculty speech can be divided into two types, “employee speech” and “citizen speech”, and that only “citizen speech” is protected by the First Amendment. This argument goes that if the speech for which you are being disciplined or dismissed can be described as employee speech, speech related to what you do as part of your regular duties, you can’t claim that your First Amendment rights (“Congress shall make no law… abridging the freedom of speech”, etc.) are being infringed. Only if you are being disciplined or dismissed for a “matter of public concern” – that is, “citizen speech” – can you claim the above. Of course, this only matters if you are in a public college or university, which is where the First Amendment applies. It doesn’t apply in the private sector.
The AAUP website provides examples of both wins and losses. In general, the outcome is not pretty. Sometimes the protesting individual gets their job back, but often not. The college or university does not take much risk in firing one person for the exercise of speech. They tend to settle with a financial payment. Even multi-thousands of dollars in awards can be budgeted as legal expenses and won’t make a dent overall. To the injured higher ed worker, however, the payoff of several years’ worth of salary may look big. They are probably desperately looking for a way to pay the rent while applying for other jobs.
While a financial settlement may ease the pain to the individual faculty person, the injury to a program, discipline or institution does not get made whole even if the individual wins. Academic freedom is something that is practiced collectively by a faculty (or, when defined broadly, a workforce). A case that wins will happen too little and too late to protect a real culture of academic freedom.
The Supreme Court did acknowledge that there was some leeway for academic freedom as a type of free speech, but that leaves it up to the local court to decide what that actually means. Are local courts where we want that to happen?
There’s one particular aspect of how the Garcetti case undercuts academic freedom and free speech protections that bears mentioning. Faculty participation in shared governance activities – including faculty members’ criticism of institutional policy – can lose First Amendment protections under at least some interpretations of the Garcetti holding. If faculty engagement in shared governance is deemed to be part of our duties as “employees”, then our protections disappear.
There are a number of different ways to protect faculty in this situation, even if adverse court decisions can’t be turned around. As an alternative to seeking enforcement of free speech protections in court, faculty unions can negotiate language in collective bargaining agreements that cover the same ground. At Wright State University, for example, the AAUP won the following language: “Academic freedom is the freedom to teach, both inside and outside the classroom, to conduct research and to publish…and to address any matter of institutional policy or action whether or not as a member of an agency of institutional governance.” (And non-unionized faculty, of course, can try to get such language included in official university policies.)