Chronicle of Higher Education Op-Ed: A Recent Appeals-Court Ruling Imperils Academic Freedom, by Keith E. Whittington (Princeton; Google Scholar):
Professors speak and write in a wide range of contexts, in all of which they receive, however unevenly, some level of protection under college policies, traditional academic-freedom principles, and First Amendment doctrine. Those First Amendment protections just took a hit in a newly issued opinion by a divided panel of the U.S. Court of Appeals for the Fourth Circuit [Porter v. Board of Trustees of North Carolina State University, No. 22-1712 (4th Cir. July 6, 2023)]. A professor in the College of Education at North Carolina State University claimed that he had been punished by his employer as a result of his constitutionally protected speech. He had on various occasions complained in faculty deliberations that the program with which he was associated had become too focused on “social justice” at the expense of its intellectual integrity. He was sanctioned for raising those concerns. A majority of the court disagreed that such speech is constitutionally protected. The direct implications of the court’s decision are not sweeping, but it is not a good precedent for those hoping that the speech of state-university professors will continue to enjoy robust protections in American constitutional law.
Foundation for Individual Rights and Expression, Hit to Academic Freedom, Fourth Circuit Holds Public Universities Can Punish Faculty for ‘Lack of Collegiality’:
In the 2006 case Garcetti v. Ceballos, the Supreme Court held that when government employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” But, critically, Garcetti made an exception for faculty at public institutions engaged in “speech related to scholarship or teaching.”
The Fourth Circuit’s decision considerably narrows this exception, effectively placing faculty speech about shared institutional governance and decision-making beyond the First Amendment. The court reasoned that Porter did not speak as an academic, but rather “in his capacity as an employee,” concluding Porter’s speech “was not a product of his teaching or scholarship” and is, therefore, “unprotected.”
Thus, the court held, even though his comments concerned scholarship within his department, they were not made in class, or in relation to his personal scholarship or teaching, and, as such, did not qualify for protection.
Brian Leiter (Chicago; Google Scholar), A Serious Blow for Faculty Speech in the 4th Circuit in the U.S.:
[O]ne silver lining in the 4th Circuit decision is that they effectively recognize that what I usually call "core" academic freedom (freedom in research and teaching) is exempt from the Garcetti rule; unfortunately, faculty speech about institutional business is not protected at all, it seems. This will have an immense chilling effect on faculty concerned about how their institutions are conducting themselves. The question now is whether other circuits will follow this approach, and what the Supreme Court will do if it gets the issue. (My guess is the Supreme Court will agree with the 4th Circuit.)
ADDENDUM: This decision directly affects public universities in the 4th Circuit; most private universities have made a contractual commitment to their faculty to protect academic freedom in line with the AAUP interpretation of its scope. So, in principle, private universities may continue to treat faculty speech on institutional governance matters as within the scope of the contractual right.
Jonathan Turley (George Washington; Google Scholar), Fourth Circuit Rules Against North Carolina State Professor Who Spoke Out Against Diversity Policies:
The United States Court of Appeals for the Fourth Circuit has delivered a body blow to free speech as well as academic freedom in a ruling against a statistics professor at North Carolina State University. …
Just when you thought things could not get worse for the dwindling number of dissenting faculty, the Fourth Circuit just found a way. If this decision stands, “uncollegiality” will become the new code for retaliating against dissenters on faculties. Indeed, likability and collegiality were long denounced as excuses for rejecting (or poorly evaluating) female and minority candidates. …
If this decision is not reversed, things are likely to get far worse (if possible) for conservative, libertarian and contrarian faculty members. Rather than investigate, sanction, or fire faculty for their viewpoints, schools will now simply declare them uncollegial in raising such viewpoints. School or board officials like John Corkins will no longer have to say that dissenting faculty should be “taken to the slaughterhouse” for their anti-diversity views. They can be “culled” on collegiality grounds.
