Fear and trembling

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Not only is it Søren Kierkegaard’s seminal work, but it also exemplifies the feeling of many faculty members at public universities after the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which held that public employees do not have any First Amendment protections when performing job duties.  A few lower federal courts have used Garcetti’s holding to uphold the censorship of public university professors (albeit in situations outside the classroom), despite the fact that the Garcetti’s majority opinion included the following caveat:

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.

As a result of the lower court decisions, the American Association of University Professors announced a campaign today to restore faculty speech rights by working with universities to make internal policies more protective of free speech.  The AAUP recommends adopting a speech policy similar to that at the University of Minnesota, which states:

Academic freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the university. Academic responsibility implies the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest, one is not speaking for the institution.

This is a good start, but will still like result in universities applying the policy selectively to faculty members who speak outside the campus orthodoxy. For example, June Sheldon’s employment as an adjunct faculty member was terminated because a student complained about being offended by what Ms. Sheldon said in the classroom.  And what did Ms. Sheldon say?  In teaching a human heredity class, she was asked about the relationship between human heredity and homosexual behavior.  She answered the student’s question by teaching the material in the textbook (the nature v. nurture debate) and quoting from an outside resource that was mentioned by the textbook.  Her answer was certainly “relevant” under the Minnesota policy and it was on a matter of “public concern.”   But whether she would be protected under the policy would still be left to campus administrators.

In order for true change to occur and for faculty to feel protected once again in the classroom, state and federal courts need to start embracing the Supreme Court’s 1967 concept that “safeguarding academic freedom. . . is of transcendent value to all of us.”  Some federal courts of appeal, like the Sixth Circuit, have done just that and have given faculty significant protections to speak in the classroom and on campus.  But only when more “knights of faith” stand up to protect their rights will the Supreme Court be able to weigh in on the topic and provide the lasting change that faculty need.

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