The right of faculty members to speak out on matters affecting their colleges and universities has long been viewed as central to the way academic freedom and shared governance are supposed to work in American higher education, reports Inside Higher Ed
“The University of California Board of Regents affirmed that right this month with an amendment to the system’s “Statement on the Professional Rights of Faculty.” In so doing, the board sought to undercut the impact of a 2006 U.S. Supreme Court ruling that has been used in some cases to question the faculty right to speak out on institutional governance.
“The new language states that faculty members have the “freedom to address any matter of institutional policy or action when acting as a member of the faculty whether or not as a member of an agency of institutional governance.”
“While many faculty members might just assume that they have that right, the 2006 decision (which was not about higher education) led some courts to question such rights. That ruling, Garcetti v. Ceballos, was about a suit by a deputy district attorney in Los Angeles who was demoted after he criticized a local sheriff’s conduct to his supervisors. The Supreme Court ruled that First Amendment protections do not necessarily extend to public employees when they speak in capacities related to their jobs.
“Justice Anthony Kennedy wrote the opinion in the case, and he specifically stated that the decision was not intended to concern faculty rights. “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,” Justice Kennedy wrote.”