AN UNREASONABLE ARGUMENT AGAINST STUDENT FREE SPEECH (original) (raw)
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a public employee pursuant to carrying out his or her official duties do not constitute speech for First Amendment purposes. [FN4] While acknowledging that applying the decision's standards to speech by faculty members at public colleges and universities potentially raised thorny First Amendment concerns related to individual academic freedom, the majority opinion in Garcetti stated that such an issue was not before the Court. [FN5] In leaving the issue unaddressed, the case opened a new chapter in legal wrangling over constitutional protection for individual academic freedom in public higher education. Several recent cases where courts have unflinchingly applied the decision's standards to faculty speech [FN6] show that the potential impact of the decision on faculty speech rights in public higher education is poised to become more than speculative. Following an overview of the Garcetti decision in Part I, in Part II the article reviews several key U.S. Supreme Court decisions dealing with issues related to academic freedom. Part III of the article examines positions taken by lower federal courts regarding First Amendment protection for individual academic freedom, including discussion of several post-Garcetti cases. Part IV examines the position that constitutional academic freedom should only apply to institutions and not to individual faculty members. *147 The article considers in Part V using academic freedom policies and standards voluntarily adopted by public colleges and universities as a basis to ground legal protection for individual academic freedom, including limiting application of Garcetti to faculty speech. I conclude that courts should give serious consideration to such policies and standards as creating zones of legally protected faculty speech. Rather than supplanting the established system of peer review and professional norms widely accepted by colleges and universities, judicial inquiry would focus on whether institutions had in fact adhered to their own voluntarily adopted policies and standards. Such policies, in blunting the potential impact of Garcetti, could provide a basis to give some degree of First Amendment protection to faculty speech in the areas of scholarship, teaching, and intramural communications. I. OVERVIEW OF GARCETTI V. CEBALLOS In Garcetti, a deputy district attorney, Richard Ceballos, recommended dismissal of a case based on alleged misrepresentations in an affidavit used to obtain a search warrant. [FN7] Besides discussing his concerns with supervisors, Ceballos wrote a memorandum recommending the case's dismissal. [FN8] Ceballos' supervisors refused to heed his recommendations, and he eventually revealed his views concerning the warrant during questioning by the defense. [FN9] In a lawsuit, Ceballos argued that his employer retaliated against him for views expressed in or related to the memorandum in violation of his First Amendment rights. [FN10] While the district court held that the memorandum contained no protected speech, the U.S. Court of Appeals for the Ninth Circuit decided that it did. [FN11] The Supreme Court, reversing the Ninth Circuit, held that because Ceballos made the communications pursuant to carrying out his official duties, they did not constitute speech protected by the First Amendment. [FN12] While noting that public employees do not forfeit all their First Amendment rights, [FN13] Justice Kennedy's majority opinion determined that the balancing test articulated in Pickering v. Board of Education [FN14] and later *148 public employee speech cases [FN15] did not apply to Ceballos' communications. [FN16] The Garcetti decision separated employee speech into two distinct categories: speaking as a private citizen or speaking as an employee carrying out official employment duties. [FN17] If speaking as a private citizen on a matter of public concern, an employee's speech receives First Amendment protection absent a sufficient justification by the employer to restrict such speech. [FN18] But when speaking pursuant to performing official employment duties, public employees do not speak as "citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline." [FN19] In a dissenting opinion, Justice Souter stated that he hoped that the majority did not intend for the standards an-36 JCUL 145
Since 1969, when the Supreme Court decided Tinker v. Des Moines Independent School District, federal and state courts have been called upon to adjudicate a variety of student free speech claims, including those arising from student protests, school newspaper censorship, library book and textbook selection and removal, selection and cancellation of school plays, student dress codes, and even senior prom attendance by same-sex couples. Part I of this article will discuss the modes of analysis that courts have used in adjudicating these claims and will argue that those analyses are poorly suited to the special problems inherent in student speech controversies. Because the Court has failed to expressly define the school interest that is served by censorship of student speech, the outcome of student speech disputes has often rested on the educational ideology of the judges charged with adjudicating those disputes. Part II will present an analytical framework for the adjudication of free speech claims brought by high school students. That framework will attempt to define the school’s interest in a manner that both meets the demands of First Amendment adjudication and eliminates the role educational ideology plays in that adjudication. This Article concludes by applying the proposed framework to a variety of hypothetical school speech scenarios, including the conundrum of whether a school can be constrained from removing books from the school library while retaining discretion to select and reject textbooks for use in classrooms.
2009
a public employee pursuant to carrying out his or her official duties do not constitute speech for First Amendment purposes. [FN4] While acknowledging that applying the decision's standards to speech by faculty members at public colleges and universities potentially raised thorny First Amendment concerns related to individual academic freedom, the majority opinion in Garcetti stated that such an issue was not before the Court. [FN5] In leaving the issue unaddressed, the case opened a new chapter in legal wrangling over constitutional protection for individual academic freedom in public higher education. Several recent cases where courts have unflinchingly applied the decision's standards to faculty speech [FN6] show that the potential impact of the decision on faculty speech rights in public higher education is poised to become more than speculative. Following an overview of the Garcetti decision in Part I, in Part II the article reviews several key U.S. Supreme Court decisions dealing with issues related to academic freedom. Part III of the article examines positions taken by lower federal courts regarding First Amendment protection for individual academic freedom, including discussion of several post-Garcetti cases. Part IV examines the position that constitutional academic freedom should only apply to institutions and not to individual faculty members. *147 The article considers in Part V using academic freedom policies and standards voluntarily adopted by public colleges and universities as a basis to ground legal protection for individual academic freedom, including limiting application of Garcetti to faculty speech. I conclude that courts should give serious consideration to such policies and standards as creating zones of legally protected faculty speech. Rather than supplanting the established system of peer review and professional norms widely accepted by colleges and universities, judicial inquiry would focus on whether institutions had in fact adhered to their own voluntarily adopted policies and standards. Such policies, in blunting the potential impact of Garcetti, could provide a basis to give some degree of First Amendment protection to faculty speech in the areas of scholarship, teaching, and intramural communications. I. OVERVIEW OF GARCETTI V. CEBALLOS In Garcetti, a deputy district attorney, Richard Ceballos, recommended dismissal of a case based on alleged misrepresentations in an affidavit used to obtain a search warrant. [FN7] Besides discussing his concerns with supervisors, Ceballos wrote a memorandum recommending the case's dismissal. [FN8] Ceballos' supervisors refused to heed his recommendations, and he eventually revealed his views concerning the warrant during questioning by the defense. [FN9] In a lawsuit, Ceballos argued that his employer retaliated against him for views expressed in or related to the memorandum in violation of his First Amendment rights. [FN10] While the district court held that the memorandum contained no protected speech, the U.S. Court of Appeals for the Ninth Circuit decided that it did. [FN11] The Supreme Court, reversing the Ninth Circuit, held that because Ceballos made the communications pursuant to carrying out his official duties, they did not constitute speech protected by the First Amendment. [FN12] While noting that public employees do not forfeit all their First Amendment rights, [FN13] Justice Kennedy's majority opinion determined that the balancing test articulated in Pickering v. Board of Education [FN14] and later *148 public employee speech cases [FN15] did not apply to Ceballos' communications. [FN16] The Garcetti decision separated employee speech into two distinct categories: speaking as a private citizen or speaking as an employee carrying out official employment duties. [FN17] If speaking as a private citizen on a matter of public concern, an employee's speech receives First Amendment protection absent a sufficient justification by the employer to restrict such speech. [FN18] But when speaking pursuant to performing official employment duties, public employees do not speak as "citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline." [FN19] In a dissenting opinion, Justice Souter stated that he hoped that the majority did not intend for the standards an-36 JCUL 145