Sunday, September 3, 2023

In The Long Run, We Are All Dead

An adjunct professor who had sued colleagues and the entire SUNY system for denying him an interview for a "more desirable" academic position had summary judgment against him affirmed by the United States Court of Appeals for the Second Circuit.

Plaintiff-Appellant John Heim, an adjunct professor of economics, appeals from a judgment of the United States District Court for the Northern District of New York (David N. Hurd, J.) granting summary judgment to his colleagues Betty Daniel and Adrian Masters (together, “Defendants”) who, as the relevant decision-makers in the Economics Department at the State University of New York at Albany (“SUNY Albany” declined to interview Heim for more desirable positions he believes he was qualified for. Heim’s challenge is premised on the allegation that Defendants rejected his candidacy in substantial part because he is a proponent of traditional Keynesian economics, an approach that Defendants consider to be outdated.

Although we accept that factual premise underlying Heim’s appeal, we disagree with the legal theory it supports: that, under the First Amendment, a public university’s hiring decisions cannot be informed by methodological preference. Rather, applying the employer/employee interest-balancing framework first set forth in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), we hold that a public university’s interest in deciding for itself what skills, expertise, and academic perspectives it wishes to prioritize in its hiring and staffing decisions outweighs Heim’s asserted interest in competing for academic positions unencumbered by university decision-makers’ assessment of the approach or methodology underlying his academic speech. We therefore AFFIRM the judgment of the district court.

The academic debate is irrelevant

The merits of that debate are not for us to assess; judges are neither qualified nor commissioned to resolve academic debates among scholars in any particular discipline. What matters is that the debate exists at all, and that Heim– who practices traditional Keynesian economics– is on one side of it, while his colleagues at SUNY Albany – who do not – are on the other.

The court concluded that the decision to not offer either full-time or tenure track employment was grounded in hostility to Keynes

The undisputed facts compel the conclusion that the content of Heim’s academic scholarship was central to Defendants’ assessment of his qualifications. It is therefore impossible for a reasonable jury to conclude that Defendants “would have taken the same action in the absence of” that speech.


As a result, the outcome here hinges on whether the First Amendment forecloses decision-makers within a public university from making hiring decisions based on such content-driven assessments.

But on balance

We do not minimize Heim’s interest in retaining the freedom to perform scholarship as he wishes, or in competing for positions that might better facilitate that scholarship; nor do we suggest that the decision not to hire an applicant based on the applicant’s views on academic debates can never prevail over the employer’s interests under Pickering. But we are tasked here with balancing (1) an employee’s asserted interest not simply in speaking freely through his scholarship, but in being considered, without regard to the content of that scholarship, for advancement from a job where he is already empowered to do that research and entrusted to espouse his views as a teacher; against (2) a university’s interest in deciding for itself what skills, expertise, and academic perspectives it wishes to prioritize in its hiring and staffing decisions.

In this case, considering both “the nature of the speech and . . . the nature of the public services performed” by this particular public employer, Blum, 18 F.3d at 1011, the latter interest is the weightier. Defendants have decided to prioritize, for purposes of scarce tenure-track positions, a particular methodology. Heim does not dispute that their decision was the product of a learned and strategic choice, made by experts in their good faith professional judgment, free from any influence from political entities in the state or other governmental or university officials outside the relevant discipline. Compare Dube, 900 F.2d at 597. That is, and must be, permissible. If the Supreme Court’s (and this Court’s) enthusiastic endorsement of the First Amendment principles supporting a university’s academic freedom is to be given any practical bite, decision-makers within a university must be permitted to consider the content of an aspiring faculty member’s academic speech, and to make judgments informed by their own scholarly views, when making academic appointments.

(Mike Frisch)

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