Implications of the United States Supreme Court’s Decision in Garcetti v. Ceballos

AS-2990-10/FA (Rev)

RESOLVED: That the Academic Senate of the California State University (ASCSU) express its concern that lower courts may use the United States Supreme Court's 2006 decision in Garcetti v. Ceballos, 547 U.S. 410(2006) to restrict academic freedom, and be it further

RESOLVED: That the ASCSU encourage all CSU faculty and campus senates to learn about the implications of this decision and subsequent lower court rulings that have applied the decision to public colleges and universities; and be it further

RESOLVED: That the ASCSU urge campus senates to provide and/or enforce policies that (a) expressly protect faculty participation in institutional governance as a dimension of academic freedom, and (b) clarify that faculty speech including but not limited to classroom teaching and research and extramural utterances merits both constitutional and institutional protection, but (c) need not and probably should not expressly use the language of “matters of public concern” lest general First Amendment standards that apply to public employee speech inappropriately be applied to speech that should be protected by academic freedom; and be it further

RESOLVED: That the ASCSU urge the CSU and campus administrators to reaffirm their commitment to the protection of academic freedom and acknowledge that as an educational institution based on shared governance, academic freedom extends to faculty statements on university operations and the administration; and be it further

RESOLVED: That the ASCSU distribute this resolution to the CSU Board of Trustees, CSU Chancellor, CSU campus Presidents, CSU campus Senate Chairs, and CSU campus Provosts/VPAAs.

RATIONALE: In Garcetti v. Ceballos (547 U.S. 410, 2006) the United States Supreme Court held that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” as comprehensively examined in the 2009 report of the American Association of University Professors (AAUP), "Protecting an Independent Faculty Voice: Academic Freedom after Garcetti v. Ceballos;" In essence, the court ruled that public employees are not protected by the First Amendment when they speak about matters of public concern as part of their official duties.  Although the Court indicated in its decision that it might not apply to the academic environment, lower courts have increasingly employed this ruling as a rationale for limiting faculty speech with respect to university affairs.

Among the most recent of such rulings, in May 2010 a U.S. District Court rejected claims by a University of South Alabama faculty member that the First Amendment protected her complaints about a lack of diversity in hiring decisions. In March of 2010, a separate U.S. District Court held that two professors of nursing at Medgar Evers College in New York were not protected by the First Amendment when they complained about the management of their academic department to the College’s union representative, a grievance officer, and administrators.  For more background on the application of Garcetti v. Ceballosi to higher education see

"Evaporating First Amendment?" (http://www.insidehighered.com/news/2010/03/18/adams) insidehighered.com, March 18, 2010),

"Threat to Faculty Free Speech" insidehighered.com, November 10, 2009 (http://www.insidehighered.com/news/2009/11/10/aaup),

"Professors Try to Shore Up Speech Protections Undermined by Courts" (http://chronicle.com/article/Professors-Try-to-Shore-Up/66007/) Chronicle of Higher Education, June 21, 2010, and

“Defending Academic Freedom in the Age of Garcetti,” Academe Online (January-February 2011) (http://www.aaup.org/AAUP/pubsres/academe/2011/JF/feat/delf.htm).

In an extensive report on the implications of Garcetti v. Ceballos, the AAUP urged faculty, academic senates, faculty unions, and university administrations to respond to the courts' use of this ruling to limit academic freedom.  This important report is available at (http://www.aaup.org/AAUP/comm/rep/A/postgarcettireport.htm). 

Earlier this year the AAUP reached agreement with the University of Delaware on a collective bargaining agreement that, among other things, addressed the report's concerns.  The relevant portion of this agreement reads:

In the furtherance of the purpose of this Agreement, the parties agree to adhere to the following Statement on Academic Freedom.

Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research and other scholarly or creative activities, and to publish or otherwise disseminate the results. Academic freedom also encompasses the freedom to address any matter of institutional policy or action whether or not as a member of any agency of institutional governance. Faculty have the freedom to address the larger community with regard to any social, political, economic, or other interest. The freedoms enumerated in this policy apply without institutional discipline or restraint save for statements or actions that demonstrate disciplinary incompetence or that violate the University’s Professional Ethics Statement or the University’s standards pertaining to disruptive behavior. Alterations to these statements made subsequent to the signing of this Agreement do not affect the freedoms enumerated in this Article unless ratified by the UD-AAUP. Academic responsibility implies the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that, when one is speaking as a citizen on matters of public interest, one is not speaking for the institution.

It is understood that this Agreement in no way diminishes the responsibility of faculty, of department chairpersons, and of deans, directors and other appropriate administrative officials for the exercise of academic judgment.

Approved Without Dissent – January 20-21, 2011



 
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