District Court Opinion on the First Amendment and Public University Professors

To what extent does the First Amendment protect public university professors — including untenured professors — from being disciplined or fired based on their scholarship or public commentary? The matter is not entirely clear, partly because of Garcetti v. Ceballos (2006), which held that the government has a largely free hand in making employment decisions based on an employee’s speech that’s part of his job duties. Does that extend to professors’ speech, given that their duties include scholarship and public commentary, especially when the speech relates to their scholarship? Or are the rules different, because of special protections offered to academic freedom, or the special nature of professors’ work? (My job is indeed to write articles, but, unlike with a typical public employee, such articles wouldn’t be seen as representing the views of my employer, and wouldn’t be directed by my employer.) Garcetti itself reserved judgment on the question, leaving the matter to lower courts, at least until the Supreme Court revisits the matter:

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.

Last week’s Van Heerden v. Board of Sup’rs of Louisiana State University (M.D. La. Oct. 20, 2011) discusses this question:

The following facts are undisputed.

In 1992, LSU hired van Heerden to work at the Louisiana Geological Survey, and later at the College of Engineering, as an Associate Professor of Research. (Doc. 54, Ex. A). In 2000, van Heerden co-founded the LSU Hurricane Center and was serving as its Deputy Director when Hurricane Katrina battered the Gulf Coast in 2005. Following the storm, van Heerden was selected by the Louisiana Department of Transportation to head Team Louisiana, a group of scientists tasked with researching what caused the extensive flooding in New Orleans. After the storm hit, van Heerden began making public statements suggesting that the Corps failed to properly engineer and maintain New Orleans levees and was to blame for the city’s flooding.

Unfortunately for van Heerden, the LSU administration and many of its faculty did not approve of his statements for fear that they might cause the University to lose federal funding. On a number of occasions, LSU administrators ordered van Heerden not to make public statements or testify regarding the cause of New Orleans’ levee failures. However, van Heerden persisted in making public statements and testified in front of the Louisiana Legislature and the United States Congress. Thereafter, LSU administrators removed van Heerden from the Louisiana Recovery Association, a group of scientists and professionals assembled by then-Governor Kathleen Blanco to identify the State’s post-Katrina needs.

In May 2006, van Heerden published “The Storm,” in which he again hypothesized at length about the Corps’ role in the levee failures and exposed LSU’s attempt to silence his opinion. LSU responded by further urging van Heerden not to make public statements and stripping him of his limited teaching duties.

Ultimately, on April 13, 2009, van Heerden, who had worked for LSU under a series of one-year contracts, was informed that his contract would not be renewed….

[T]he Court finds that, although it is a close question, van Heerden was not acting within his official job duties…. Viewing the facts in the light most favorable to van Heerden, the Court cannot say he was acting under his official job duties because genuine issues of material fact still exist. The actions of LSU administrators when dealing with van Heerden make clear that, whatever the formalities of his job description or the general parameters LSU sets for all its academics’ relations with the media, LSU considered van Heerden to be acting outside his employment when he spoke on Katrina-related matters with the media. LSU administrators repeatedly warned van Heerden not to speak with the media. [Details omitted. –EV] …

Viewed in this light, LSU’s objective actions appear to have been calculated to disavow itself of van Heerden’s statements regarding the cause of levee failure. The Court thus finds that van Heerden’s job duties did not require him to make statements to the media, as it appears clear LSU attempted to limit his appearances, discredit his message, and distance itself from his conclusions. Of course, [a Fifth Circuit precedent’s] interpretation of Garcetti makes clear that, although van Heerden’s comments to the media were not required by his official job duties, they may nonetheless be unprotected if his speech was made in the course of performing his job duties.

Van Heerden’s job description and specified duties consisted of, initially, working on the Team Louisiana report pursuant to LSU’s contract with the State in addition to his faculty responsibilities. As van Heerden’s job description changed and became more focused on research for scholarly publication, his outside speech became less connected with his LSU employment, and LSU correspondingly became less pleased with his performance….

Finally, the Court pauses a moment to make a final comment about Garcetti. The concerns about academic freedom raised, but not answered, in that decision are quite relevant here. “Academic freedom is not an easy concept to grasp, and its breadth is far from clear. It has generally been understood to protect and foster the independent and uninhibited exchange of ideas among teachers and students and the serious pursuit of scholarship among members of the academy.” While van Heerden has not argued for an academic’s exception to Garcetti, neither have defendants pointed the Court to a decision of the Fifth Circuit applying Garcetti to an academic. The Court here shares Justice Souter’s concern that wholesale application of the Garcetti analysis to the type of facts presented here could lead to a whittling-away of academics’ ability to delve into issues or express opinions that are unpopular, uncomfortable or unorthodox. Allowing an institution devoted to teaching and research to discipline the whole of the academy for their failure to adhere to the tenets established by university administrators will in time do much more harm than good….

However, based on the facts presented here, the Court finds that, even applying the Garcetti test to van Heerden, he was not acting within his official job duties for the speech at issue here, which precludes summary judgment for defendants….

The plaintiff’s interest in his speech could also arguably outweigh the defendant’s interest in efficiently providing services. [This is the “Pickering balance” part of the First Amendment test for restrictions imposed by the government as employer, see this post. Academics are, by the very nature of their employment, urged to make what is sometimes unpopular speech. Universities must be cognizant and tolerant of such speech in order to foster the requisite level of comfort so research can be undertaken free of detrimental political pressure. The only conceivable “efficiency” interest LSU or the other defendants may have had in suppressing van Heerden’s speech, so far as the evidence at this point suggests, was to curry favor with the Corps and other federal bodies in the hopes of receiving federal funding in the wake of Katrina. Defendants do not even attempt to argue van Heerden did not meet this prong of the test. A genuine issue of fact certainly exists under the third element regarding whether plaintiff’s interest in his speech outweighs whatever LSU’s efficiency interest may be.

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