Tuesday, December 22, 2009

Garcetti in Higher Education? Not So Fast

Scales-red Update (12/23):  Inside Higher Ed reports on another Garcetti and higher ed case. This time, the court alarmingly applies Garcetti. This decision is in line with the AAUP recent warning that judges are eroding faculty rights at public colleges.

Thanks to friend of the blog, Dennis Nolan (South Carolina) for bringing to my attention this decision from California discussing whether the Garcetti First Amendment free speech case applies in the higher education context.  Garcetti held that public employees speaking pursuant to their job duties have no First Amendment free speech protection.

F.I.R.E. (Foundation for Individual Rights in Education) has this article on Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009): 

[I]t is heartening to report that a federal court in California has rejected a community college district's attempt to apply Garcetti to strip a professor of First Amendment protection for her classroom speech. In Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009), the federal district court ruled, contrary to the college district's argument, that the professor, June Sheldon, did not lose her First Amendment rights merely because her speech took place during classroom instruction. Sheldon lost her adjunct science teaching position at San Jose City College as well as the opportunity to teach courses the next semester following remarks she made to her class about the "nature versus nurture" debate with regard to why some people are homosexuals. Though her comments were part of a class discussion about the topic, some students complained that the way she embraced the "nurture" side of the argument was offensive, leading the college to take the adverse employment actions against her. (FIRE took up Sheldon's case in 2008.)

In Sheldon's subsequent suit under 42 U.S.C. 1983 (a federal statute providing a cause of action for the vindication of federal constitutional and statutory rights), the federal court rejected the college's argument, based on Garcetti, in favor of dismissing Sheldon's First Amendment claims altogether. Crucially, the court observed that "Garcetti by its express terms does not address the context squarely presented here: the First Amendment's application to teaching-related speech. For that reason, defendants' heavy reliance on Garcetti is misplaced." The court opined that the "precise contours" of the First Amendment's reach in this context are "ill-defined and are not easily determined at the motion to dismiss stage."

I think both from a precedential standpoint and a policy standpoint this decision is on the way to the right result.  First, Garcetti expressly chose not to rule on whether its ruling applied in the academic context.  Second, Supreme Court cases as far back as the 1950s have emphasized the need for academic freedom, including the right to freely say what one thinks in the classroom environment.

To be sure, this decision just gets the case by a motion to dismiss, but I agree that it is heartening that the court might treat academic public employment different from other forms of public employment suffering under the holding of Garcetti.

PS

http://lawprofessors.typepad.com/laborprof_blog/2009/12/garcetti-in-higher-education-not-so-fast.html

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