The Fourth Circuit just handed down its decision in this case, Adams v. UNCW. The court concluded that Prof. Adams didn’t introduce sufficient evidence to support his religious discrimination claim, and that the claim was therefore rightly dismissed before trial. But the court also concluded that Adams’ political discrimination claim could proceed.
Here’s a very quick summary of what happened: Adams is a tenured associate professor of criminology at the University of North Carolina-Wilmington. He sought promotion to full professor, based partly on his political writings (and not just his original academic research), but the promotion was denied. Adams sued, claiming that the denial stemmed from faculty members’ hostility to his religion and his political views.
The trial court held that Adams’ claim couldn’t go forward, because of the Supreme Court’s Garcetti v. Ceballos decision. That case generally held that government employers had a free hand in making employment decisions based on employees’ speech said as part of their jobs; any First Amendment protection that employees have against employer retaliation only applies to speech outside their job duties. (Adams’ speech, the court said, was within his job duties, partly because he asked that it be considered as part of his promotion evaluation, and thus himself argued that it was part of his academic mission.) But Garcetti expressly stated,
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.
And the Fourth Circuit held that, when it comes to public university professor employment decisions, Garcetti doesn’t apply, and a professor speaking on matters of public concern can’t be discriminated against based in employment unless the speech is seen as unduly disruptive (under the Pickering test). And circuit courts have generally held that the Pickering test is quite speech-protective when it comes to university professor speech (at least outside the classroom), partly because universities are expected to be homes to controversial speakers, and are set up not to be especially disrupted by such controversy. (See, e.g., Levin v. Harleston (2d Cir. 1992).) The circuit court remanded to the district court for further decisionmaking on the subject, and presumably also on the question whether the promotion denial stemmed from legitimate concern about the quality of Prof. Adams’ scholarship, or from illegitimate hostility to Prof. Adams’ viewpoints. (Note that quality of scholarship evaluations might turn on matters such as the perceived quality of the candidate’s reasoning, the quality of the candidate’s responses to counterarguments, and whether the works are original contributions to knowledge as opposed to simply popularizations of existing academic knowledge.)
Now I’m not sure what the right First Amendment answer when it comes to university decisions that are based on evaluations of a candidate’s scholarly work (as opposed to evaluations of work that he says is outside his scholarly tasks, and which he doesn’t submit as part of his portfolio). On the one hand, I agree that the protection of the marketplace of ideas against government control, and the desire to avoid deterring dissenting views, counsel in favor of some constitutional constraints on such evaluations. But on the other hand, I’m not sure how this can work. Such evaluations are inevitably based on the content of what the candidate says (usually a forbidden basis for government action against people, but in this situation a necessary basis). And the evaluations are also inevitably based even on the viewpoints that the candidate expresses: For instance, a physicist who proposes a new theory that is inconsistent with what the overwhelming majority of physicists believe will naturally be required to provide much more comprehensive evidence than with someone whose theory fits within the mainstream.
Honest scholarly evaluation requires the evaluators to be open to a wide range of views, and to ignore as much as they can their own partisan predilections. But I don’t think such a process can work without some consideration of the viewpoint that the scholarship expresses. Nor can one respond, I think, that good scholars should always equally scrutinize all viewpoints, whether conventionally accepted or not. Life is too short for that; one naturally has to pick and choose what to scrutinize especially closely, and the viewpoints that are at odds with broadly accepted conclusions within the discipline will naturally be viewed with special skepticism.
The court briefly touched on this issue:
Adams’ inclusion of the speech at issue as part of his application process asked the Defendants to consider it not according to the content qua speech, but as factoring into the sweeping requirements of scholarship and service necessary to support his promotion to full professor. The Defendants were not precluded from examining the materials for a permissible purpose using lawful criteria. At the same time, their review of those materials can be examined for an impermissible discriminatory use.
But it’s not clear how a judge and jury could effectively separate faculty members’ conclusions that a candidate’s work was badly reasoned or inconsistent with accepted academic knowledge (in a way that casts doubt on the candidate’s work and not on the knowledge) from faculty members’ “impermissibly discriminatory” judgments based on hostility to the ideas that the candidate expresses. I stress again that honest scholars should try to separate the two as much as possible. But it’s hard even for honest scholars to do in their own minds; it’s not clear to me how judges and juries could do that, reviewing the process after the fact.
So I’m not sure what to think about this decision, and I look forward to hearing what others have to say about it (and also to seeing how things come out in further district court proceedings, assuming there is a written opinion stemming from the proceedings, rather than just a prompt settlement or an inscrutable jury verdict). Incidentally, I also think that the strongest argument for Garcetti more broadly is that employers have to be able to evaluate the quality of their employees’ speech that is made as part of the job, both with an eye towards whether the employee has been doing his job well and with an eye towards whether the employee is likely to do the job well in the future.
Finally, note that the case doesn’t involve the separate question of public university employers’ control over a professor’s classroom teaching. I think there the university should have very broad control as a matter of First Amendment law; but, again, that’s a somewhat different matter.