In the space below, we analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit. We are quite sympathetic to the thrust of the Ninth Circuit ruling, but we think that a more concrete and categorical framework for resolving academic freedom disputes needs to be fashioned, lest public schools and their faculties be embroiled in a great deal of time- and money-consuming litigation that will generate inconsistent and unpredictable results.
Some Background on the Demers Case
As is relevant here, the facts of the Demers case are pretty straightforward. David Demers is a tenured member of the faculty at the Edward R. Murrow College of Communication at Washington State University, a large, public, research-oriented university located in Pullman, Washington. While serving on a university committee charged with exploring possible changes to the way in which the Murrow College was organized and the way it should relate to other units of the University, Demers wrote and distributed a document called “The Plan.” The Plan was Demers’s two-page blueprint for dealing with some of these issues of organizational structure and funding (and some other matters too). Demers did not distribute The Plan to other members of the committee on which he served, but he did send The Plan to high-level administrators at Washington State, as well as to members of the media and others. After suffering what he claimed were adverse employment actions, Demers brought suit against various members of the Washington State administrative hierarchy alleging that they had retaliated against him, in violation of his First Amendment rights, for distributing The Plan and the ideas contained in it.
The defendants denied that any action they ever took against Demers was in retaliation for his having distributed The Plan. They also argued that, in any event, The Plan was not protected speech under Supreme Court doctrine because it was written and circulated “pursuant to Demers’s official duties.” The trial court ruled in the University’s favor. On appeal, the Ninth Circuit reversed the trial court’s decision, at least in part.
The Ninth Circuit’s Decision That Garcetti Does Not Apply
The three Judges on the Ninth Circuit panel agreed with the University that “The Plan” was undertaken pursuant to Demers’s official duties (even though he tried to characterize it as something he wrote and circulated in his private-person capacity) because it addressed much of the subject matter of the University committee on which he served, and because he sent it to, among others, University administrators who might have been able to act on it. But the Ninth Circuit then definitively held that not all things that a public school academic employee writes and distributes in connection with his official duties are without First Amendment protection. In particular, the Ninth Circuit ruled that the complete-deference-to-the-government standard of Garcetti v. Ceballos—a 2006 United States Supreme Court decision—does not apply in the setting of public employees who are teachers and scholars.
Garcetti involved a memorandum written and publicly disseminated by a deputy district attorney alleging that a police search warrant affidavit contained problematic falsehoods and misrepresentations. When higher-ups in the DA’s office seemed to punish him for blowing the whistle in this way, he filed suit contending that he had been the victim of retaliation for his comments, in violation of the First Amendment. The Supreme Court held that “when public employees make statements 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.”
The Ninth Circuit in Demers held, building on language in some of the opinions in Garcetti and other cases discussing “academic freedom,” that the Garcetti framework does not apply to “speech related to scholarship or teaching.” Instead, according to the panel, teaching and academic writing that are performed pursuant to the official duties of a teacher and professor should be governed by the two-part balancing test laid out by the Supreme Court in the pre-Garcetti case of Pickering v. Board of Education. Under that test, the employee must show first that his or her speech addressed matters of public concern. If this requirement is satisfied, then the employee’s speech is protected from punishment if the employee’s interest “in commenting outweighs the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
Our Evaluation of the Ninth Circuit’s Course of Action
We well understand why the Ninth Circuit decided not to apply the Garcetti approach to the university-professor setting across the board. But we are troubled by the indeterminate, ad-hoc character of the Pickering balancing test, and we think that more categorical boundaries need to be identified in order to provide an appropriate structure for the litigation between schools and their academic employees that will likely ensue once Garcetti is found not to govern these disputes.
Let us begin by explaining why we think there is a strong case to be made that university professors deserve First Amendment protection for at least some of what they say and do, even when they do it on the government’s dime and pursuant to their public-employment duties. It is always dangerous to identify certain classes of public employees who should enjoy more free speech rights than others, but we think that a distinctive protection for professors can be derived from a functional analysis of the jobs that universities are supposed to play in modern society. We focus on two functions, in particular:
First, many universities play a unique role in our society in pressing beyond accepted wisdom to critique and expand our knowledge of the world. Universities are committed to certain methodological principles, but so long as research is done within that methodological framework—which requires, among other things, comparison of theory to empirically verifiable phenomenon, rigorous logic, and the careful separation of premises from conclusions and correlations from causes, and attention and responses to counterarguments that have been made or are likely to be made against any particular thesis—universities are committed to going wherever the search for truth leads.
Second, universities serve as an independent source of values and authority and as such they operate as a check on government power—a function that is comparable to the ways in which the press or organized religion can serve as a check on government abuses or mistakes. University academics have blown the whistle on many instances of government error or overreach. The difficulty with applying this argument to public universities, however, is that we would be asking the government to fund a check on its own authority. But the idea is not implausible. The basic notion is, after all, intrinsic to all the separation of powers; the legislature funds the courts, for example, which themselves serve as a check on legislative authority.
For these reasons (which largely explain some of the stray Supreme Court language, extolling the virtues of academic freedom, on which the Ninth Circuit relied in rejecting the applicability of Garcetti), we see potential room to carve out special protections for academic speech. But if a functional analysis helps make the case for special protections for university scholars, it also substantially undercuts the claim for academic freedom by elementary- and high-school teachers (which the Ninth Circuit also recognized albeit in dicta.) Elementary and middle schools, of course, serve different purposes than universities. The range of stakeholders is broader. More importantly, public-school education involves a mixture of values and cultural inculcation—that is, teaching children what society wants and needs them to accept—as well as the development in students of intellectual maturity, independence, and the ability to think for themselves. And there is no consensus (the way that there might be a consensus on the purposes of research universities) on how that mix should work. As a result, there is a much shakier foundation for judicial review. And simply substituting judges’ opinions on pedagogical issues for those of school boards or administrators seems troubling in principle and chaotic in practice.
Relatedly, elementary- and high-school teachers are not in the business of generating new knowledge; it’s not part of their function. As a result, there is no functional need to promote free inquiry in the performance of their jobs. In a similar vein, high schools are not intended to serve as sources of values that serve a checking function on government. And finally, operating the public schools is a traditional local governmental function. Community interests, values, and needs may differ by location. Democracy is responsive to local differences and concerns. First Amendment doctrine might have the tendency to universalize, homogenize, and nationalize public-school curricula and pedagogical decisions.
Because universities are so different from elementary and high schools in this regard, we think that the Ninth Circuit should probably have limited its holding concerning Garcetti’s applicability (or non-applicability) to the research-university setting. Even though the Ninth Circuit observed that the Pickering test must be attentive to context, we can foresee much mischief if an ad-hoc balancing test like Pickering’s leads to a flood of lawsuits brought by elementary-school and high-school teachers who object to the pedagogical decisions made by principals and local school boards on first amendment grounds.
And even within the realm of the university, we wonder whether the Pickering formula is too open-ended, and likely to produce costly litigation that is so fact-specific that it cannot be resolved short of full-blown and time-consuming trials. The Ninth Circuit does say that some deference to universities is owed in some settings, but not all lower courts will be clear about how much deference to afford, and free-speech review involving tests that demand indeterminate balancing may be an invitation to constitutional litigation by every scholar who disagrees with the evaluation of his or her teaching or scholarship.
A more categorical approach is greatly preferable. Various substantive decisions, as long as they are clearly communicated to the faculty so as to avoid any notice/due process problems, should be beyond the scope of constitutional review. (State legislatures or public universities may elect to subject these decisions to judicial review, but the Constitution does not require that they do so. That way, if review becomes problematic and unreasonably costly, it can be modified without changing constitutional doctrine.)
For example, universities should be free to determine their curricula, and also be free to prescribe precisely what particular classes should cover. Professors can be required to teach assigned classes, notwithstanding their subject-matter preferences. Universities can determine classroom hours, etc. If an economics professor decides instead to write literary criticism, the department can reject his work as unacceptable within the discipline in which he was hired to teach. The Supreme Court case of Arkansas Public Television Comm. v. Forbes suggests that judicial review under the free speech clause is inappropriate when government engages in functions that require the exercise of substantial editorial discretion.
Clearly, that reasoning applies to many content-neutral and content-discriminatory university decisions. And even a fair bit of viewpoint discrimination may be permissible. For example, to our minds it does not necessarily violate the First Amendment for a university to require balanced teaching on controversial subjects in the classroom, even if a professor would have a preference to be more polemical.
In the space of this essay, we cannot, of course, construct all the categories we think should be identified to guide and reform otherwise standardless judicial balancing, but we hope that Demers is the first step in the direction of that enterprise by lower courts.