Academic Freedom, Constitutional Free Speech,
and Faculty Governance
By Nick Gier, President, Higher Education Council
Idaho Federation of Teachers, AFT/AFL-CIO
The AAUP strongly supports the right of faculty to exercise an independent voice
in shared governance, without fear of discipline or punishment by the institution.
–Gary Rhoades, General Secretary, American Association of University Professors
In 1889 the founders of the State of Idaho gave the “immediate government of the University of Idaho to the faculty.” This faculty prerogative was not formally recognized until 1968, when the Faculty Senate was established for “shared governance” between the faculty and the administration.
Because meaningful faculty governance came so late in the life of the nation’s universities, the principle of academic freedom has not been formally extended to the right to speak freely in all venues of university governance. Recently, cases of administrators accusing their faculty of insubordination and unprofessional conduct and actually dismissing professors for these reasons have increased. This obviously has caused alarm among the nation’s professors.
In 2006 Supreme Court voted 5-4 in Garcetti v. Ceballos that public employers can limit their employee’s constitutional right to free speech in the performance of their official duties. Richard Ceballos was a deputy district attorney in Los Angeles who claimed that he was demoted (to “DA Siberia” so it seems) because of a dispute with his supervisor Gil Garcetti. Ceballos filed a grievance, but an appeal board ruled that Ceballos had failed to prove retaliation.
Lower court judges have cited Garcetti in higher education cases, but they seem to have ignored Justice Anthony Kennedy’s exception. Writing for the majority, he stated that the decision would not “apply in the same manner to a case involving speech related” to university professors. The four justices who dissented in Garcetti v. Ceballos were very concerned about removing a large segment of the population from constitutional speech protection. Justice John Paul Stevens cited a case in which an English teacher’s right to criticize her school district’s policies as racist was upheld.
Why should teachers lose their free speech rights just because they are public employees, especially teachers whose job is to prepare students for life in a democratic society? The motto for my union, the American Federation of Teachers, is “Democracy in Education–Education for Democracy.”
When he proposed that faculty may be exempt from Garcetti, Justice Kennedy mentioned only teaching and research, not faculty governance. As far as I know, the principle of shared governance is practiced only on college and universities campuses, and this makes them significantly different from a district attorney’s office or any other public employee workplace.
In a recent column in the Chronicle of Higher Education (12/9/09), Gary Olson, Provost at Idaho State University, also limits academic freedom to teaching and research. As he states: “A college or university has no comparable incentive to protect extra-disciplinary speech because such discourse is peripheral to the normal workings of the campus.” I’m truly amazed that Olson has somehow forgotten about faculty governance, especially since his faculty has been so aggressive in claiming its prerogatives in this area. In 2005 the ISU faculty held a no-confidence vote on then President Richard Bowen and he was forced to leave the university. This month the faculty gathered enough signatures to call for a similar vote on Provost Olson.
When professors raise issues in faculty senates and general faculty meetings, they are rarely speaking from their disciplines; rather, they are talking generally about the institution’s mission, curriculum, or budget allocations. Faculty committees vote on tenure and promotion across the disciplines, and faculty have a major say in these essential decisions. Faculty appeal boards also consider faculty grievances and sometimes (not often enough from my experience) rule against the administration.
In a strong response to the misuse of Garcetti in faculty cases, the American Association of University Professors maintains that the “critical distinction between a faculty member and an employee of a corporation [is that] the faculty member is acting not as a spokesperson for the institution–and so subject to control for the views expressed–but as a citizen of the institution.”
A federal judge recently rejected a suit by a UC Irvine professor who claimed that he was denied a merit raise because he had criticized his department for hiring too many part-time faculty. Using Garcetti, the judge ruled that the professor was speaking as a public employee and therefore not protected by the First Amendment.
Conscientious faculty members are now in an incredible bind: just when they need free speech protection, Garcetti takes it away. In his dissent in Garcetti Justice David Souter wrote: “I have to hope that today’s majority does not mean to imperil the First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”
Last October ISU President Arthur Vailas dismissed tenured engineering professor Habib Sadid for a long history of criticizing (sometimes harshly) ISU administrators. An award winning teacher, public servant, and active researcher, Sadid had received excellent annual evaluations up until 2008. The dismissal was triggered by an April, 2009 faculty meeting in which the dean reminded those present that they should not afraid of expressing their opinions. Listening to a tape of the meeting, a reasonable person could conclude that Sadid was far from the most disruptive participant.
Sadid appealed his dismissal and an appeal board voted 4-1 in his favor. The majority concluded that ISU administrators had denied Sadid due process and had failed to prove its case. The Faculty Senate asked Vailas to reverse his decision by a vote of 19-5, but Vailas declined to do so.
In 2007 Sadid filed a suit charging that ISU had retaliated against him because he had spoken out against administrative decisions. Last December District Judge David Nye ruled against Sadid, arguing that he had not provided sufficient evidence for retaliation. Nye also cited Garcetti to bolster his defense of the ISU’s actions. As Nye wrote: “Sadid should understand that he has limitations of his speech that he accepted when becoming a state employee,” and that he “does not have a valid First Amendment claim.” Justice Kennedy, however, says that Sadid may indeed have such a claim.
The charges against Sadid involve very serious accusations of libel, harassment, and threatening physical harm. Two security agents escorted him off the campus and he has not been permitted to return. The faculty appeal board wrote that the lack of documentation for these charges was “disturbing.” Many at ISU and the larger community are asking the following questions: Why wasn’t proper legal action taken at the time of these alleged infractions? Why didn’t Sadid’s department chair mention them in his annual evaluations? Why wasn’t Sadid given a chance to defend himself? If these charges are as serious as the administrators hype them, then they were negligent in not calling the police.
Sadid’s attorneys have appealed Judge Nye’s decision and they are preparing a suit challenging his dismissal. My faculty union has given Sadid $16,184 in legal aid (more is pending) for the obvious reason that if his termination stands, then the free speech rights of all America’s professors are threatened.
Last June the University of Minnesota Board of Regents issued a revised statement on academic freedom, that includes “to speak or write without institutional discipline or restraint on matters . . . related to professional duties and the functioning of the university.”
Within the month I will be requesting that Idaho faculty senates adopt similar language to make sure that academic freedom includes faculty governance as well as teaching and research. Idaho’s faculty deserve nothing less than full free speech rights in all areas.