The American Association of University Professors released a report earlier this month in response to a 2006 Supreme Court case that could potentially have direct ramifications in higher education.
The report, "Protecting an Independent Faculty Voice: Academic Freedom after Garcetti v. Ceballos," discusses how the Supreme Court's ruling in that case, as well as subsequent rulings by lower courts, may "pose a serious threat to academic freedom and the ability of faculty in public institutions to participate freely in academic governance."
In Garcetti v. Ceballos, the Supreme Court ruled that a Los Angeles district attorney could discipline a deputy district attorney for criticizing the actions of his superiors. Justice Anthony Kennedy wrote at the time that the decision did not apply to academia, while former Justice David Souter disagreed. Three subsequent cases have resulted in rulings that apply the "restrictive" interpretation of freedom of speech found in Garcetti to higher education: Hong v. Grant (2007), Renken v. Gregory (2008) and Gorum v. Sessoms (2009).
"New York State has laws which help protect academic freedom, so it's not as significant of a concern to us here as elsewhere," said Fred Floss, the statewide vice president for academics of the Union of University Professors. "The greater issue of academic freedom is important to us, though. State laws can protect certain whistle blowers, but how is this going to affect shared governance? The answer is we don't know yet."
Protecting shared governance, the idea that college faculty should have an opportunity to participate in the administration of an institution of higher learning, is a primary goal of the AAUP.
"Shared governance is not an issue of controlling," said Dennis Showers, chair of Geneseo's College Senate. "It's an opportunity to participate in the decision making of the administration."
Another key issue raised by Garcetti is the potential ambiguity in determining when a person is acting within the scope of his or her official duty versus speaking as a private citizen.
The courts have established that the First Amendment does not protect private employees' speech from discipline. "In the private sector you don't have the same sorts of rights [as in public]," Floss said. "Your boss can tell you that you can't say something."
"It's not always clear when a teacher is acting within his or her official duties," Showers said. "But laws are vague and unclear … specifics of the law are resolved in specific cases."
"One of the strange consequences of [past rulings] about official duties is that the more of an expert you are on a topic, the more you have to temper what you say and the less you can speak openly," Showers said. "As an education professor, if I write a book about how schools are run, my speech is not protected because that is a duty within my realm of expertise. But if a mathematics professor wrote the same book it would be outside of his area of expertise and protected."
The AAUP report calls for faculty senates at both private and public colleges to "develop policy statements at the institutional level that will explicitly incorporate protections for faculty speech on institutional academic matters and governance."
"The SUNY system … already does many of the things the report wants, since it is a system with a definite position on academic freedom," Showers said, noting though that some members of the SUNY-wide University Faculty Senate have raised the issue of whether the Board of Trustees should be pressed for a stronger statement.
"The only way we're able to grow and share knowledge is through shared governance, and any possible threat to that needs to be considered carefully," Floss said.