Academic freedom endangered again

(Cross-posted at BlogHer)

Members of the University of California, Davis Academic Senate (mostly tenured and tenure-track faculty) recently received an e-mail that contained this warning:

According to recent court rulings, your speech and behavior in job-related duties as a public employee rather than a private citizen have no First Amendment protection. This means that disciplinary action may be taken against you (including dismissal) for statements you make in the course of your employment. Any activity performed on the job falls within this purview. [... W]e recommend that you expect that your speech and behavior outside of your field of scholarship is absolutely not protected by the First Amendment.

Further, university policies on academic freedom only protect speech and behavior in your area of demonstrated academic scholarship. Do not expect that university policies give you a right to speak and act freely in your job duties on campus outside of your scholarship. [...] Our employment culture at UC Davis has been supportive of transparency and freedom, but it may not be a right.

Full disclosure: I'm a (staff, not faculty) employee of UC Davis, but I would be writing about this issue even if I weren't. In addition, let me make clear to any UC or UC Davis administrators out there: I'm not writing this as part of my duties as an employee at UC Davis--an important caveat in the context of this article.

For fascinating background on the court cases that led to the UC Davis memo, definitely check out Michael Bérubé's post at Crooked Timber and UC Davis Professor Eric Rauchway's post at The Edge of the American West, as well as the large number of comments at each post. Both posts offer a legal history memo, tracing its contents back to two cases: Garcetti v. Ceballos and Hong v.Grant. You can read a quick round-up of the issues from Marc Bousquet, but I highly recommend the Bérubé and Rauchway posts. Really, they're required reading on the subject.

Here's my question as an occasional lecturer at UC Davis and an adjunct professor elsewhere: If faculty have neither First Amendment nor academic freedom protections outside their areas of "demonstrated academic scholarship," how do we draw the borders of that scholarship? For example, I consider myself a scholar within the very broad (inter)disciplines of American studies and museum studies. But my peer-reviewed publishing has been limited to the history of women in American institutions of natural history, as well as a couple of academic book reviews. If dissertating or publishing are to be used as demonstrations of scholarship--and those traditionally are the ways academia has defined someone's areas of research--then my teaching largely falls outside my areas of demonstrated scholarship. Which means I have neither First Amendment rights nor academic freedom in my classroom--even though American universities are supposed to be preserves of intellectual thought, and even though I live in one of the more left-leaning states in the country. How does one teach undergraduate and graduate students if expressing evenly mildly controversial opinions becomes a threat to employment?

As is too often the case, I found it difficult to locate women bloggers commenting on this issue of academic freedom in the university context, and particularly as it relates to Hong or Garcetti. That said, the women who are writing about it are saying really interesting and important things.

Helen Norton at First Amendment Law Prof Blog points us to an article (PDF) by Judith Areen on "the interests that justify constitutional protection for academic speech, addressing faculty speech on governance issues as well as speech related to research and teaching." Areen argues that the scope of academic freedom should extend beyond a faculty member's narrow band of scholarly production. Here's an excerpt from her article:

[C]ontrary to common understanding, academic
freedom is about much more than faculty speech—more than simply the university professor’s analog to the citizen’s right of free speech. Rather, academic freedom is central to the functioning and governance of colleges and universities. Louis Menand recognized this broader role when he called academic freedom a “key legitimating
concept” of academic life, one that explains a wide array of issues from why departments have the authority to hire and fire their own members to why the football coach is not allowed to influence the quarterback’s grade in a course. Academic freedom, properly understood, has what I will call a “governance dimension.” It is not only about faculty research and teaching; it is also about the freedom of faculties to govern their institutions in a way that accords with academic values whether they are approving the curriculum, hiring faculty, or establishing graduation requirements for students.

Katharine Mangan writes at The Chronicle of Higher Education about how one administrator losing her court case as a whistleblower "could have a chilling effect on free speech and make it harder for university lawyers and officials to do their jobs."

Back in 2006, LizardBreath of Unfogged provided a dissection of Garcetti. Looking at the Supreme Court decision, she concludes,

Souter contemplates that speech by government employees in the course of their duties should only be protected only insofar as it meets a high standard of responsibility and consists of "comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety"; Breyer believes that even that standard would unworkably deprive state employers of control over their employees, and suggests that the First Amendment should protect such speech only where "professional and special constitutional obligations are both present". Either of those standards, still, either: (1) ends up protecting employees whose duties consist of speech from management action even where they are wrong or incompetent in what they have said, which seems absurd, or (2) ends up extending First Amendment protection to speech only when a court considers the speech correct or valuable, substituting the court's opinion on how to perform the employee's duties for the employer's, which seems, likewise, absurd.

I'd love to be talked out of this position -- I'm uncomfortable with the company I'm keeping.

Be sure to check out the comments on her post for some interesting opinions.

At Socialist Worker, Dana Cloud considers several cases of faculty whose academic freedom was challenged by conservative activists. She explains the activists' motivations:

From the 1964 free speech movement to today's anti-occupation organizations, campuses have always been places where struggles for justice break out. This potential might explain why, losing ground in politics and the economy, the right seeks to maintain its grip on outspoken faculty and students.

For breaking news on constraints placed on academic freedom, check out the blog of the Committee to Defend Academic Freedom at UCSB. For a more in-depth examination of the issues, view the videos or listen to the audio from the In Defense of Academic Freedom conference held at the University of Chicago in 2007.

What are your thoughts?