4th Circuit protects academic freedom

Monday, April 25, 2011

Academic freedom scored an iconic victory in the 4th U.S. Circuit Court of Appeals this month when the court reinstated the First Amendment retaliation claims of a university professor who alleged discrimination based on his conservative political and religious views.

Michael S. Adams, a criminology professor, was hired by the University of North Carolina-Wilmington in 1993 as an assistant professor. After winning teaching awards and receiving high student and faculty evaluations for his classroom teaching abilities, he earned a promotion to associate professor in 1998.

In 2000 Adams converted to Christianity and became a conservative. He wrote columns and appeared frequently as a television and radio commentator. He also published a book, Welcome to the Tower of Babel: Confessions of a Conservative College Professor.

In 2004, Adams applied for a tenured full professorship but was denied. He had included many of his writings and speeches in his tenure application.

A federal district court denied Adams’ First Amendment claims, contending that his commentator writings and speeches – though protected by the First Amendment when originally made — were unprotected when he included them in his tenure application because they were part of his job duties as a public employee-professor under the U.S. Supreme Court ruling Garcetti v. Ceballos (2006).

In Garcetti, the Supreme Court changed the equation in public-employee free-speech law by providing that when public employees make statements in the course of their official job duties, they have no First Amendment protection. If broadly applied to professors in the college and university setting, the Garcetti rule could cover all of a professor’s in-class speech and much of a professor’s writings and speeches that contribute to tenure decisions.

Fortunately, the 4th U.S. Circuit Court of Appeals rejected such a broad application of Garcetti in its April 6 decision in Adams v. Trustees of the University of North Carolina-Wilmington. The appeals court rejected the notion that Adams’ writings and talks, protected when originally made, could somehow become unprotected when included in a tenure application. The 4th Circuit found no support for the lower court’s finding that “protected speech can lose its First Amendment protected status on a later reading of that speech.”

The 4th Circuit also resisted application of Garcetti in this academic setting. Even in Garcetti, Justice Anthony Kennedy in his majority opinion recognized that the decision might not apply with full force in academia, writing:

“There is some argument 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. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

The 4th Circuit reasoned that much of Adams’ scholarship was targeted at a national audience far beyond the confines of the university campus and was “unrelated to any of Adams’ assigned teaching duties at UNCW.”

“Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment,” the 4th Circuit wrote.

The appeals court added that Adams was speaking more as a concerned citizen than as a university employee when he engaged in much of the speech in question.

The 4th Circuit’s decision resisting application of Garcetti should be celebrated whether one is a conservative or a liberal. Neither conservative nor liberal professors should be penalized for their viewpoints expressed in columns or television broadcasts. Academic freedom must be esteemed and protected.

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