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Academic Freedom. By Amy Miller. Academic Freedom. Academic freedom is a concept upheld in American universities that supports the freedom of inquiry (freedom to learn) by both students and faculty members, and the freedom to teach or communicate ideas or facts .

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Academic Freedom

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Academic Freedom

By Amy Miller

Academic Freedom

  • Academic freedom is a concept upheld in American universities that supports the freedom of inquiry (freedom to learn) by both students and faculty members, and the freedom to teach or communicate ideas or facts.

  • The idea of academic freedom originated from German universities.

Academic Freedom and the First Amendment

  • Early History

    *Public employment was a privilege, not a right.

    *Earlier cases held that contract provisions between the board and the teacher could prohibit the exercise of various rights and freedoms.

    *If the teacher violated the terms of the contract, though they were repressive of teachers’ rights, the teacher could be dismissed.

*Teachers could be dismissed for marriage, absence from school for childbirth, or discussion of politics in the classroom.

*The courts based their conclusions on common law reasonableness, not constitutional rights and freedoms.

*School boards could dismiss teachers for “valid reasons,” or at the pleasure of the board, which many times bore little relationship on their ability to teach.

Academic Freedom and the First Amendment

  • Under the Bill of Rights, “all aspects of the academic freedom are found in the speech, expression, privacy, and religion provisions of the First Amendment.” (Alexander & Alexander, 2005).

  • Academic freedom is not, in and of itself, a separate constitutional protection, but instead it is a desirable end to be achieved by the enforcement of the individual rights and freedoms as guaranteed by the Bill of Rights.

  • The protection to learn and teach does not come from academic freedom, but is founded in the constitutional protections of free speech and expression within the First Amendment.

  • To focus on academic freedom, we need to look at what the courts have said about the basis for controlling or limiting free speech of employees.

Keyishian v. Board of Regents385 U.S. 589 (1967)

  • Faculty at the State University of New York were forced to sign documents stating that they were not members of the Communist Party. These members refused to sign the documents and were fired. The New York state law prohibited membership in subversive groups. The Court ruled that imposing a loyalty oath or prohibiting membership in subversive groups unconstitutionally infringed on academic freedom and freedom of association.

  • This case extended First Amendment protection to academic freedom.

Speech Rights of Public Employees

  • The Court has concluded that practical reality requires that government, at certain times and under certain conditions, be able to restrict employees’ speech in order to fulfill its responsibilities to operate effectively and efficiently.

  • Do you think educators can openly and publicly criticize the administration, school board members, or other teachers? Why or why not?

Pickering v. Board of Education391 U.S. 563 (1968)

  • A high school science teacher wrote a letter to the editor of a community newspaper in response to material from the superintendent and the Teachers’ Organization, criticizing the board of education’s allocation of funds between academics and athletics. The school board dismissed the teacher, saying that the letter contained false statements that challenged the integrity of the school system. The teacher sued, claiming that the board violated his First Amendment rights by terminating him for exercising his right to freedom of speech.

  • The Court held that school officials do violate the First Amendment when they terminate a public school teacher for speaking out as a citizen on matters of public concern.

The Pickering Rule

  • The courts implemented a flexible rule that provides for balancing the public’s interest against the private interest of the employee in each circumstance.

    *This balance does not remove all state restraint on teachers.

    *The courts have a strong belief that teachers are in a sensitive position and must be held accountable for certain activities both in and out of the school.

“The Pickering Balancing Test”

  • The Pickering Test is applied in evaluating the interests of a public employer with its employees’ right to Free Speech and requires the court’s consideration of the following:

  • A public employee has a protected right under the First Amendment to comment on “matters of public concern,” no matter what the employer thinks.

  • If the employee's comments aren't on a “matter of public concern,” those comments are not protected.

  • If the employee's comments are on a matter of public concern, then the employer must demonstrate that the speech would “potentially interfere with or disrupt the government's activities, and can persuade the court that the potential disruptiveness” outweighs the employee's First Amendment rights.”

Apply the Pickering Test

Pappas v. Giuliani (2002) 290 F. 3d. 143.

  • New York Police Department officer Thomas Pappas received charity donation requests and would sometimes use the business-reply envelope to mail racist and anti-Semitic materials back to the charity.

  • When the Mineola (N.Y.) Auxiliary Police Department sent Pappas a request for support, Pappas filled the business-reply envelope with fliers that “… asserted white supremacy, ridiculed black people and their culture and warned against the ‘Negro wolf … destroying American civilization with rape, robbery and murder,’ and declaimed against ‘how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews.’”

  • Internal affairs investigators then confronted Pappas, who admitted that he had sent the materials: “I was protesting and I was tired of being shaken down for money by these so-called charitable organizations. And it was a form of protest, just put stuff back in an envelope and send stuff back as a form of protest.”

  • Pappas was fired for mailing the out the material. He sued Mayor Giuliani and the NYPD Commissioner, Howard Safir, alleging violation of his free speech First Amendment rights.

  • How do you think the court ruled this case? Why?

  • Judges agreed that Pappas' “speech” was on a matter of public concern. This allowed the judges to go straight to the question of whether Pappas' speech “potentially interfered with” or “disrupted” the NYPD's activities.

  • They ruled that the Pickering balance leaned in favor of the employer.

  • Even though Pappas was not in contact with the public (he had a desk job), if the press were to become aware that a sworn NYPD officer disseminated racial criticisms, it would report that this was done by a police officer.

  • A “governmental employer's right to discharge an employee by reason of his speech in matters of public importance does not depend on the employer's having suffered actual harm resulting from the speech. The employee's speech must be of such nature that the employer reasonably believes that it is likely to interfere with the performance of the employer's mission.”

Connick v. Myers (1983)461 U.S. 138

  • Public employee, Assistant District Attorney Sheila Myers, was informed that she would be transferred to prosecute cases in a different area of criminal law.

  • Myers opposed her transfer and in response passed out a questionnaire to fellow attorneys soliciting information about office morale and pressure to work political campaigns.

  • Myers was fired for insubordination.

  • The Court upheld Myers’s dismissal because the speech “substantially interfered” with the operation of the office.

  • Out of this case came the combination of Pickering and Connick to form a two-step free speech test:

    *First, the initial inquiry is whether the speech is a matter of public or private concern.

    *Second, if the speech is found to be a matter of public concern, the court must then apply the Pickering balance test.

Speech and the Garcetti Rule

  • In 2006, the U.S. Supreme Court in Garcetti v. Ceballos tightened the reins on the free speech of government employees.

  • This nonschool case has significant public school implications.

Garcetti v. Ceballos (2006)547 U.S. 410

  • Richard Ceballos, an employee of the Los Angeles District Attorney's office, found that a sheriff misrepresented facts in a search warrant affidavit that would invalidate the warrant. Ceballos notified the attorneys prosecuting the case stemming from that arrest and all agreed that the affidavit was questionable, but the D.A.'s office refused to dismiss the case. Ceballos then told the defense he believed the affidavit contained false statements, and defense counsel subpoenaed him to testify.

  • Ceballos claimed that he was subsequently subjected to a series of retaliatory employment actions. These included reassignment to a different position, transfer to another courthouse, and denial of a promotion. He initiated an employment grievance, which was denied based on a finding that he had not suffered any retaliation.

  • Ceballos claimed that his memo and verbal exchanges were constitutionally protected free speech.

  • His superiors countered that his memo and his objections to instructions of his superiors were not entitled to free speech protection, rather were employment duties and could be the basis for discipline.

  • In holdings against Ceballos, the Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official's public duties.

What does this mean for us?

  • Pickering, Connick, and Garcetti leave an abundance of unanswered academic freedom questions for future litigation.

  • When public employees make statements pursuant to their official duties, these statements are not protected by the First Amendment and are subject to employer control.

  • Termination can result from speech that:

    *can be reasonably believed to undermine authority

    *disrupts decorum

    *harms working relationships

In other words…

  • When a citizen becomes an employee of a public entity, the right to free speech as a citizen still applies; however that right is more restricted and limited.

  • Make sure that your communication in the workplace does not undermine authority, disrupt decorum, or harm working relationships.

  • What is your opinion on this teacher’s free speech rights?

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