Discharge of University Employee Triggers Likely First Amendment Action; Possibly Tests Scope of Garcetti

In a strange twist of timing, as the California Supreme Court readied its decision against discriminatory heterosexual marriage privileges, The Christian Post was reporting on action taken by the University of Toledo in defense of gay rights.  But the University's effort might cost them, depending on the outcome of an all but inevitable First Amendment lawsuit.

According to the report, the University of Toledo fired Associate VP of Human Resources Crystal Dixon after she expressed opposition to equal marriage rights in a column published in the Toledo Free Press.  UT President Dr. Lloyd Jacobs defended the decision, saying that Dixon's statements "do not accord with the values" of the University. 

I'm tickled pink about the California decision, and that the University apparently recognizes the inherent worth and dignity of all human beings as a matter of official policy.  But I do think that Dixon's discharge raises a tricky First Amendment question that, so far as I can tell, hasn't been squarely addressed in the case law.

At first blush, Dixon has a strong case against the University.  Garcetti v. Ceballos narrowed the scope of First Amendment protection afforded public employees, but distinguished the employee whose speech is part of an official job function from the employee who speaks "as a citizen" on a matter of public concern.  Garcetti upheld the discharge of a deputy district attorney who complained to supervisors about a flawed warrant.  Because he directed his concerns through the internal chain of command, he was not "speaking as a citizen," the Court said, and therefore was not protected by the First Amendment.  Not the case with Dixon.  Having written to the outside press on an issue of undebatable contemporary cultural significance, Dixon's comments fall into the latter, constitutionally protected, category. 

Garcetti may very well control the outcome here.  But there is some tension between First Amendment cases like Garcetti that involve public employees generally and those that involve certain employees of public universities specifically.  Grutter v. Bollinger, for example, granted significant deference to the University of Michigan Law School when it upheld a race-based affirmative action program on the Law School's claim that a racially diverse student body was a crucial component of its educational mission.  Grutter involved an Equal Protection challenge, but grounded this part of its analysis in the "academic freedom that 'long has been viewed as a special concern of the First Amendment.'"  If the First Amendment compelled deference to the Law School's admission standards in Grutter, could it also compel deference to a university's personnel policy?  Justice Kennedy attempted to pre-empt the question in Garcetti, cautioning that "expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence." 

But this statement was dicta, and provides no clear answer on how Garcetti would impact university personnel decisions across the board.  Its one thing to talk of "academic scholarship or classroom instruction," that is, speech by faculty and instructional staff, but what about non-instructional employees?  Are they all of a piece for First Amendment purposes when we're dealing with public education institutions?  They're not when religious institutions are involved.  One could at least argue that published comments made by a Human Resources administrator - particularly on matters involving fair and equal treatment - reflect on the University in a way that public comments by the office secretary or security guard do not.  Post-Garcetti cases dealing with personnel decisions by public educational institutions (so far as I'm aware) have not squarely confronted the issue. Maybe a case by Dixon would force them to.   

For an excellent treatment on questions arising from the constitutional status of higher education institutions see Professor Paul Horwitz's recent article, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. Rev. 1497 (2007).

-Kathleen A. Bergin