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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
