Legal Watch: Defending Faculty Speech Rights in the Courts

In February, the AAUP filed amicus briefs in two cases— Kilborn v. Amiridis and Jensen v. Brown—that raise important issues concerning the First Amendment and the legal right of faculty mem­bers to teach and to speak publicly about curriculum standards and shared governance.

The first case, currently pending before the US Court of Appeals for the Seventh Circuit in Chicago, concerns Jason Kilborn, a tenured member of the law school faculty at the University of Illinois Chicago. Kilborn filed suit after facing retali­ation from university administrators for his teaching-related speech, including a question he placed on a final exam for his civil procedures class. The question concerned a hypothetical employment discrimina­tion scenario that involved the use of partially redacted racist and sexist epithets. When a campus controversy ensued, the university investigated Kilborn and accused him of violating its nondiscrimination policy based on the exam question and other in-class speech, including remarks he made during lectures concern­ing frivolous litigation and racially motivated police stops. A lower court dismissed Kilborn’s claim that the university’s actions violated his First Amendment rights, ruling that his speech did not involve a “matter of public concern.”

The AAUP’s amicus brief urges the appeals court to revive Kilborn’s suit by holding that the First Amendment protects faculty mem­bers when they engage in speech related to scholarship or teaching. Citing key AAUP statements along with existing case law and policy arguments, the brief argues that the ability of faculty members to engage freely in scholarship and teaching is vital to academic free­dom, which the Supreme Court has long recognized as being “a special concern of the First Amendment.” The brief explains that universities cannot function properly if admin­istrators are permitted to censor academic speech, and it urges the court to recognize that academic speech inherently involves “matters of public concern,” owing to the fact that a university’s public mis­sion—operating “for the common good”—requires strict adherence to the principle of academic freedom.

In the Jensen case, the AAUP was joined by the Nevada Faculty Alliance (NFA) in filing an amicus brief with the US Court of Appeals for the Ninth Circuit in support of Lars Jensen. A tenured professor in the math and physical sciences department at Truckee Meadows Community College in Nevada, Jensen faced discipline after he spoke out against the college’s repeated lowering of curriculum standards in order to make it easier for students to complete math courses, as well as against the college’s attendant failure to abide by principles of shared gov­ernance in imposing those changes. Jensen voiced these concerns in email communications and in a printed handout he distributed at a commu­nity summit organized by the college. A lower court dismissed Jensen’s suit, ruling that his claims did not involve a “clearly established” First Amendment right.

The AAUP’s amicus brief argues that the First Amendment right of public university and college faculty to speak on matters related to teach­ing—including criticism of significant changes to curriculum standards—is clearly established under the law and that it has long been understood as being an essential aspect of academic freedom. In 2006, the Supreme Court held in Garcetti v. Cebal­los that the First Amendment does not protect public employees when they speak pursuant to their official duties. However, as the AAUP’s brief explains, the Ninth Circuit, in the 2014 decision Demers v. Austin, recognized that the First Amendment right of faculty to engage in aca­demic speech was established long before Garcetti and that Garcetti did not change that clearly established right. The brief also maintains that Jensen’s speech is entitled to First Amendment protection because it involved “matters of public con­cern,” and that Jensen’s interest in speaking on those issues outweighed any reason the college might have had to restrict him from doing so. As the AAUP and NFA write, faculty members have “a compelling interest in speaking on important curricu­lum issues that are matters of public concern, and their right to do so falls squarely within the core of academic freedom.” Colleges, meanwhile, have no legitimate interest in restrict­ing such speech or punishing those engaged in such speech because “the proper and effective functioning of colleges and universities requires that college administrators respect academic freedom, and any restric­tions on such speech therefore ultimately undermine the function­ing of the institution.”

Both of these cases provide important opportunities for the courts to clarify and reaffirm legal principles that are crucial to academic freedom and the First Amendment—and to do so in a manner grounded in AAUP-supported principles.

Edward Swidriski is assistant counsel at the AAUP.