The (Lack of) Speech Rights of Student Affairs Professionals

Neal H. Hutchens
University of Kentucky

Issues involving speech and academic freedom in higher education regularly receive attention in scholarly literature and the media, but typically in regards to student or faculty speech. These conversations rarely involve issues related to the speech of student affairs professionals. As a small step in helping to fill this gap in the literature, I will consider legal standards relevant to the speech rights of student affairs professionals when carrying out their employment duties. A review of pertinent legal standards reveals that, in many instances, student affairs professionals often have limited legal protection for their work-related speech.

To provide some useful context, I first review the shaky legal status of constitutional protection for academic freedom, even for faculty speech directly related to teaching and scholarship. Next, I consider First Amendment standards affecting the speech rights of student affairs professionals at public colleges and universities. In particular, I discuss the implications arising from a 2006 U.S. Supreme Court case, Garcetti v. Ceballos. The column also considers legal standards influencing the speech rights of student affairs professionals at private colleges and universities in addition to those in public higher education.

Academic Freedom and the First Amendment: An Ambiguous Legal Relationship

The concept of academic freedom deals with some of the fundamental purposes of the higher education enterprise, particularly in relation to issues involving teaching and scholarship. Despite the fact that the U.S. Supreme Court has described academic freedom as a “special concern” of the First Amendment, the Court’s decisions have failed to provide clear legal standards that define the academic freedom rights of individuals, whether students, faculty, or staff (Jorgensen & Helms, 2008; Tepper & White, 2009).

Academic freedom first received attention from the Supreme Court in a dissenting opinion in 1952 (Adler v. Board of Education). The issue of academic freedom arose as part of the judiciary’s efforts to curb governmental abuses in the McCarthy era related to attempts to root out perceived Communist plots to infiltrate American society during the Cold War (Tepper & White, 2009). A well-known concurring opinion in 1957 by Justice Felix Frankfurter argued for the need to safeguard intellectual independence at the nation’s colleges and universities (Sweezy v. New Hampshire). Looking to a statement from South African scholars, he discussed the importance of ensuring that higher education institutions should possess the authority to decide, “‘who may teach, what may be taught, how it shall be taught, and who may be admitted to study’” (Sweezy, 1957, p. 263). In 1967, discussion of academic freedom made its way into a majority opinion in Keyishian v. Board of Regents. The Supreme Court discussed the significance of protecting free speech and inquiry in the nation’s educational institutions, describing academic freedom as a “special concern of the First Amendment” (Keyishian, 1967, p. 603)

Despite the strong language in Keyishian and professed support for academic freedom in subsequent decisions (e.g., Grutter v. Bollinger, 2003), the Supreme Court has not provided clear constitutional standards regarding First Amendment protection for individual academic freedom. In fact, legal debate has arisen whether First Amendment protection for academic freedom, if deserving legal recognition at all, should only extend to institutions and not to individuals (Byrne, 1989; Finkin, 1983; Horwitz, 2007; Rabban, 1990).

The ambiguity of the academic freedom cases resulted in courts looking to legal standards dealing with the First Amendment speech rights of public employees in general when considering claims that implicated academic freedom concerns (Areen, 2009; Jorgensen & Helms, 2008; Tepper & White, 2009). However, reliance on this line of cases has proven problematic, creating legal uncertainty and controversy. A 2006 Supreme Court case involving public employee speech, Garcetti v. Ceballos, again raised questions regarding the extent to which individual academic freedom is subject to First Amendment protection. At the same time, the decision resulted in significant limits on when public employees, including student affairs professionals in public higher education, could look to the First Amendment to protect their work-related speech.

Garcetti v. Ceballos Imposes Rigid Test for Public Employee Speech Rights

Garcetti v. Ceballos (2006) involved a deputy district attorney, Richard Ceballos, who recommended the dismissal of a criminal case based on his belief that law enforcement officials had made certain misrepresentations in order to obtain a search warrant. Ceballos discussed his concerns with supervisors and wrote a memorandum recommending the case’s dismissal. His superiors refused to accept his recommendation, and Ceballos eventually revealed his views at a hearing during questioning by the defense. Ceballos claimed in an ensuing lawsuit that he suffered retaliation from his superiors in violation of his First Amendment rights. Specifically, he argued that the memorandum he wrote qualified for First Amendment protection. A U.S. District Court ruled against Ceballos, but the U.S. Court of Appeals for the Ninth Circuit determined that Ceballos had engaged in protected First Amendment expression in writing the memorandum.

The Supreme Court, overturning the Ninth Circuit, held that Ceballos could not rely on the First Amendment for his work-related speech. Creating a bright-line legal test, the Supreme Court decided that speech or expression made by a public employee as part of carrying out official job duties was ineligible for First Amendment protection. While the Court reserved the possibility for some type of exception to this test for faculty speech involving academic freedom concerns, the Garcetti standards mean student affairs professionals are unable to receive First Amendment protection for speech determined to be made as part of carrying out official job duties. Speech not made as part of carrying out one’s official employment responsibilities (i.e., speech in a private capacity) is eligible to receive First Amendment protection if: (1) the speech deals with an issue determined by a court to address a matter of public concern; and (2) the governmental employer is unable to offer a legitimate justification to restrict the speech.

Several court cases involving higher education show how the Garcetti standards limit the First Amendment rights available to student affairs professionals for work-related speech. In Vila v. Padrón (2007), for instance, a former community college vice president alleged that her employment contract was not renewed because she had opposed unethical or illegal behavior on the part of the college’s president. Among her claims, the former vice president asserted that she had objected to representations made to the institution’s governing board that an advertising contract had been competitively awarded, when, if fact, it had not. She also alleged that she had warned against improper actions taken in the purchase of a building by the college and had objected to using college funds to pay for illustrating a poetry book written by the daughter of one of the college’s trustees.

The Garcetti standards meant the court’s analysis did not include whether the former vice president was dismissed for the reasons that she claimed. Instead, the federal appeals court focused on whether the speech at issue took place as part of the vice president fulfilling her official employment duties. Determining that all the speech under consideration occurred as part of carrying out these duties, the court held that, under Garcetti, the former vice president could not look to the First Amendment as a legal basis to challenge the non-renewal of her contract, even if her allegations were true.

In another illustrative case, Savage v. Gee (2012), a university librarian, Savage, argued that his employer university violated his First Amendment rights. Savage’s claim stemmed from a dispute that arose as part of his membership on a university committee charged with selecting a common reading book for all incoming first year students. The librarian became embroiled in a controversy when he suggested several books that other individuals on the committee and members of the campus community felt were homophobic.

The controversy over Savage’s actions and his book attracted widespread attention on campus and included consideration by the faculty assembly. Several campus members indicated that Savage’s communications had made them fearful and filed complaints with the institution against him. Savage responded by filing his own harassment complaints against several individuals. Savage resigned from his position and eventually initiated a lawsuit against the university. In his suit, he alleged he was left unable to function in his job due to a lack of institutional support and continuing harassment stemming from his stances involving the book selection.

A federal appeals court held that Savage’s First Amendment claims were negated by the Garcetti standards. Savage had argued that his speech related to his participation on the book selection committee dealt with matters involving academic freedom. As such, he argued, his speech should not be subject to the Garcetti standards, even if involving Savage’s official employment duties. While noting that the Supreme Court left open the possibility of some type of academic freedom exception in Garcetti, the court held that Savage’s speech had too little of a connection with teaching or scholarship to qualify for any such type of exemption. Regardless of whether one approves of Savage’s speech or views, the decision highlights how student affairs professionals possess no First Amendment protection under the Garcetti standards for speech made while carrying out their official job duties. This was the outcome in Savage even though the speech at issue had a close relation to curricular or pedagogical matters that seemingly implicated academic freedom concerns.

These cases reviewed in this section demonstrate the strict legal standards created by the Garcetti decision. These legal rules mean that student affairs professionals at public colleges and universities are unable to claim First Amendment protection for speech undertaken to carry out their official employment duties. Additionally, employment arrangements that provide limited legal protection to student affairs professionals often accompany this lack of First Amendment protection for work-related speech, both at public and private institutions.

Employment Arrangements and Student Affairs Professionals

Some institutions employ student affairs professionals on a contract basis. This means that, absent a sufficient reason, one cannot end an individual’s employment during the contract period. However, institutions employ many student affairs professionals at both public and private institutions on an at-will employment basis. When someone is employed at-will, it means his or her college or university employer is not required to establish cause in dismissing the person and may do so at any time.

Some constraints exist on the at-will doctrine. Colleges and universities, for instance, must comply with civil rights laws protecting individuals from discrimination (Swift, 2010). Many states have also adopted public policy exceptions to the dismissal of at-will employees, such as not permitting the termination of at-will employees who refuse a request to violate the law (Muhl, 2001). Despite certain limitations a student affairs professional employed in an at-will capacity can generally be dismissed at any time and for any reason, including for issues involving work-related speech.

Student affairs professionals may also receive employment protections relevant to their work-related speech through collective bargaining agreements. These agreements may require sufficient cause before dismissing an employee. In some states, civil service protections may also apply to individuals employed at public colleges and universities. Such protections require some type of appropriate cause to terminate an individual’s employment.

As this brief overview shows, student affairs professionals may possess employment protections that provide, even if indirectly, a degree of legal protection for their work-related speech. Nevertheless, many student affairs professionals do not have the benefit of such legal safeguards for their work-related speech. This state of affairs contrasts sharply with faculty members in higher education employed in tenure-line positions. The absence of speech protections through employment arrangements for many student affairs professionals stands out even more when considered alongside the lack of First Amendment protection for work-related speech for those in public higher education.

Concluding Thoughts

Should student affairs professionals be the beneficiaries of policies and standards that help to provide some degree of legal protection for their employment-related speech? An answer to this question is beyond the scope and space of this column, but it seems an issue well worth raising. Just as some institutions are considering ways to give more voice and employment protections to non-tenure-track faculty (e.g., adjunct, clinical, and lecture faculty), perhaps the issue of employment-related speech rights for student affairs professionals also deserves attention. Colleges and universities benefit from student affairs professionals having a sense of empowerment to provide their honest views on policies and issues affecting the campus and students. As such, institutions should weigh the consequences of not having policies or standards that safeguard the work-related speech of their student affairs professionals.

Discussion Questions

• Do student affairs professionals on your campus feel secure in being able to offer their views and opinions in carrying out their employment responsibilities? What are the reasons that they feel empowered or not in relation to their work-related speech? Why might they feel the way they do?
• What kinds of employment standards (e.g., collective bargaining agreements or at-will employment) influence, directly or indirectly, the work-related speech rights of student affairs professionals at your institution?
• What is your stance regarding the need or not for student affairs professionals to have some type of legal protection for their work-related speech?

References

Adler v. Board of Education, 342 U.S. 485 (1952).

Areen, J. (2009). Government as educator: A new understanding of First Amendment protection of academic freedom and governance. Georgetown Law Journal, 97(4), 945-1000.

Byrne, J.  P. (1989). Academic freedom: A “special concern of the First Amendment.” Yale Law Journal, 99(2), 251-340.

Finkin, M. W. (1983). On “institutional” academic freedom.  Texas Law Review, 61(5), 817-857.

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

Grutter v. Bollinger, 539 U.S. 306 (2003).

Horwitz, P. (2007). Universities as First Amendment institutions: Some easy answers and hard questions. University of California at Los Angeles Law Review, 54(6), 1497-1558.

Jorgensen, J. D., & Helms, L. B. (2008). Academic freedom, the First Amendment and competing stakeholders: The dynamics of a changing balance. The Review of Higher Education, 32(1), 1-24. doi:10.1353/rhe.0.0036

Keyishian v. Board of Regents, 385 U.S. 599 (1967).

Muhl, C. J.  (2001, January).  The employment-at-will-doctrine:  Three major exceptions.  Monthly Labor Review, 124(1), 3-10.

Rabban, D. M. (1990). Functional analysis of “individual” and “institutional” academic freedom under the First Amendment. Law and Contemporary Problems, 53(3), 227-301.

Savage v. Gee, 665 F.3d 732 (6th Cir. 2012).

Sweezey v. New Hampshire, 354 U.S. 234 (1957).

Swift, K. R.  (2010).  The public policy exception to employment at-will:  Time to retire a noble warrior?  Mercer Law Review, 61, 551-584.

Tepper, R. J., & White, C. G. (2009). Speak no evil. Academic freedom and the application of Garcetti v. Ceballos to public university faculty. Catholic University Law Review, 59(1), 125-181.

Vila v. Padrón, 484 F.3d 1334 (11th Cir. 2007).

About the Author

Neal H. Hutchens is an assistant professor in the Department of Educational Policy Studies and Evaluation at the University of Kentucky. His research focuses on law and policy issues arising in higher education.

Please e-mail inquiries to Neal H. Hutchens.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Staff Office.