Friday, September 13, 2013

Emily Gold Waldman on Garcetti's Application to University Professors and Academic Writings

Emily Gold Waldman shared this analysis with us:

When the Supreme Court held in Garcetti v. Ceballos that public employees do not have First Amendment protection for speech that they utter pursuant to their official duties – even if that speech is on a matter of public concern – it created a special carve-out. Responding to a concern raised in Justice Souter’s dissent about professors’ academic freedom, the majority explicitly stated that it was not deciding “whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Since then, lower courts have had to grapple with two questions: (1) how does Garcetti apply to K-12 teachers’ job-related speech? and (2) how does Garcetti apply to university professors’ job-related speech?

So far, the circuits have been unanimous that Garcetti indeed applies to K-12 teachers’ job-related speech (essentially their classroom speech, the main aspect of their job). See, e.g., Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011); Evans-Marshall v. Board of Education, 624 F.3d 33d (6th Cir. 2010); Mayer v. Monroe County, 474 F.3d 477 (7th Cir. 2007). In other words, once the court finds that the teacher was speaking in her capacity as an employee rather than as a private citizen, the teacher loses her First Amendment claim.

By contrast, circuits are starting to hold that Garcetti does not apply to university professors’ job-related speech (i.e., their teaching and writing). The Fourth Circuit so held in 2011, see Adams v. Trustees of the University of North Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011), and the Ninth Circuit reached the same conclusion last week in Demers v. Austin, 2013 WL 4734033 (9th Cir. 2013). Both circuits reasoned that the Garcetti Court had explicitly reserved judgment on this sort of speech, and that applying the Garcetti framework to the teaching and writing of public university professors would imperil their academic freedom. (Indeed, they would have no First Amendment protection for such speech; their only protection would depend on their contractual arrangements with their universities.)

This distinction makes sense, and I think other circuits will probably follow the trend of holding that Garcetti applies to K-12 public school teachers’ classroom speech, but not to public university professors’ teaching and writing. The one odd thing about Demers is that the Ninth Circuit used such broad language in several places– stating that “there is an exception to Garcetti for teaching and academic writing” – that it almost could be read to encompass K-12 teachers as well as university professors. If it weren’t for the Ninth Circuit’s earlier decision in Johnson v. Poway – where it specifically applied Garcetti to a high-school teacher’s classroom speech – I’d really be wondering about this. In any event, it will be interesting to see how other circuits – and ultimately the Supreme Court? – weigh in on these questions.

Analysis, Cases, First Amendment | Permalink


Derek, thanks for posting this, and thanks to Emily for analyzing the state of the law. I wrote about this issue a few years back, and the Adams and Demers cases have added a lot since then. I want to state a brief dissent to the conclusion that both Adams and Demers hold that Garcetti does not apply to the speech of an academic made pursuant to job duties. That is certainly what Demers just held, so it is correct to say that Demers carved out a categorical "academic speech" exception to Garcetti. And Adams contains a lot of language that would lead a reasonable observer to conclude that the court there also carved out such an exception, but in my view, the best reading of Adams is that the speech in question was not made "pursuant to official duties." Therefore, the Adams court simply applied Garcetti and found it not met, while claiming throughout the relevant portion of the opinion that academic speech is different. Here's the most relevant passage (from page 564 of Adams): "Put simply, Adams' speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields. For all the reasons discussed above, that thin thread is insufficient to render Adams' speech "pursuant to [his] official duties" as intended by Garcetti."

Posted by: Scott Bauries | Sep 13, 2013 4:54:45 AM

Thanks, Scott. I don't think we really disagree--my point in citing Adams was really just that there's a growing trend toward holding that Garcetti doesn't apply to university professors' teaching and writing--not that it's inapplicable to any job-related speech they utter (such as, for instance, speech that carries out administrative obligations). For example, the Adams court said that "There may be instances in which a public university faculty member's assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching. In that circumstance, Garcetti may apply..." To me, this suggests that going forward in the Fourth Circuit, when the speech involves scholarship or teaching by a university professor, the court won't apply Garcetti and will instead do a Pickering-Connick analysis.

Posted by: Emily Waldman | Sep 19, 2013 11:12:49 AM

Emily, I certainly understand your prediction, and I hope that you are right, but I am not so optimistic. For one thing, just look a bit down in the same paragraph you quote, and you will find this: "Defendants agree Adams' speech involves scholarship and teaching; indeed, as we discuss below, that is one of the reasons they say Garcetti should apply — because UNCW paid Adams to be a scholar and a teacher regardless of the setting for his work. But the scholarship 564*564 and teaching in this case, Adams' speech, was intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams' assigned teaching duties at UNCW or any other terms of his employment found in the record. Defendants concede none of Adams' speech was undertaken at the direction of UNCW, paid for by UNCW, or had any direct application to his UNCW duties." This paragraph is just above the language I quote above. Taken together, it seems that, despite the hand-wringing about "additional constitutional interests not contemplated," the court was just applying Garcetti and finding Adams's speech (the books and blog posts) not sufficiently related to his duties to be "pursuant to" them. In addition, and possibly more importantly, the court failed to even attempt to distinguish its recent en banc decision in Urofsky v. Gilmore, where it clearly held that academic freedom is an institutional right, not an individual right. So, if there are "additional constitutional interests," as the court says, I'm not sure where those interests come from. I'm glad the Adams decision came down the way it did, but I don't place it in the same category as Demers, which clearly carves out an exception to Garcetti based on a unique individual right of academics not shared by the public at large.

Posted by: Scott Bauries | Sep 25, 2013 9:52:58 AM

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