The AAUP’s Perplexing Response to the Sheldon Victory

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As David Hacker recently noted, the U.S. District Court for the Northern District of California allowed June Sheldon’s First Amendment claims to proceed by denying San Jose/Evergreen Community College District’s motion to dismiss.  But the reaction to Professor Sheldon’s victory from the American Association of University Professors (AAUP) remains quite mystifying.

In early November, the AAUP released a report warning that the Supreme Court’s 2006 decision in Garcetti v. Ceballos “perhaps fatally” undermined “constitutional protection for academic freedom at public institutions.”  So it urged faculty to get their universities to pass academic freedom protections so as “to preserve all elements of academic freedom in the face of judicial hostility or indifference.”  And it endorsed a University of Minnesota policy that stated in part:  “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 . . . on matters related to professional duties.”

Within weeks, Judge Whyte ruled on Professor Sheldon’s case.  She had lost her teaching job merely for answering a student’s question in class about the class curriculum.  If this situation does not fall within the AAUP-endorsed policy, nothing does.  And sure enough, her college relied on Garcetti to urge the court to throw the case out of court.  But Judge Whyte saw through her college’s legal smokescreen, writing that “Garcetti by its express terms does not address . . . the First Amendment’s application to teaching related speech,” and thus the college’s “heavy reliance on Garcetti is misplaced.”

So far, this seems to be the AAUP’s dream outcome.  The court recognized faculty free speech rights, distinguished Garcetti, and affirmed Professor Sheldon’s academic freedom.  But Rachel Levinson, senior counsel for the AAUP, was only “‘cautiously’ pleased” with the decision.  She added that she was “very pleased” with the Garcetti aspects of the case, describing them as “heartening.”  But her overall response seemed surprisingly tepid, especially in contrast to the AAUP’s dire warnings in early November.

Of course, this presents an interesting question:  Why the tepid response?  Could it be that AAUP views this as a single district court opinion at an early stage of what may turn out to be a long legal battle?  Or could it be that Professor Sheldon’s remarks that homosexual conduct is not an innate, genetic characteristic offends the AAUP’s leftist sensibilities?  Of course, we sincerely hope that the AAUP will recognize the inherent value of free speech on campus regardless of whether it agrees with the viewpoint being expressed at any given moment.  Only time will tell.

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