Adams v. University of North Carolina–Wilmington, 640 F.3d 550 (4th Cir. 2011)

On July 2, 2010, the AAUP, the Thomas Jefferson Center for the Protection of Free Expression, and the Foundation for Individual Rights in Education filed an amicus brief (.pdf) in the U.S. Court of Appeals for the Fourth Circuit to support the appeal of Professor Michael Adams.

Adams is a tenured associate professor at the University of North Carolina-Wilmington (UNCW) and a self-described conservative Christian. His political discussions with faculty and his public political commentary - including a column he published on Townhall.com, in which he criticized the university as religiously intolerant - sparked several incidents at UNCW. Adams applied for a promotion to full professor, listing his Townhall.com column and a related political book in his promotion application. After he was denied the promotion, he sued, alleging this denial was retaliation for his political speech and his speech criticizing UNCW.

A federal district court in North Carolina granted (.pdf) the university's motion for summary judgment, concluding that Adams' speech was not protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006) (see discussion above) because he had spoken "pursuant to his official duties." The court reasoned that Adams' inclusion of the column and book in his promotion application was "an implicit acknowledgment that they were expressions made pursuant to his professional duties," and that this inclusion "trumped all earlier actions," including the university's previous disclaimers of the views Adams expressed in his columns. In so holding, the court further implied that all materials in an application for promotion would be considered "pursuant to" a professor's "official duties," and therefore not be entitled to First Amendment protection under Garcetti.

The amicus brief argues that the district court's holding incorrectly ignored Garcetti's academic freedom reservation, and it urges the Fourth Circuit to recognize an exception to Garcetti's analysis for faculty speech. While applauding the district court's deference to promotion and tenure decisions made by faculty committees - which it noted judges should review "with great trepidation, consistently applying reticence and restraint" - the brief argues that the court failed to consider the consequences its broad ruling could have for academic freedom. The court's suggestion that all materials in a promotion packet should automatically be treated as having been created "pursuant" to that professor's "official duties" could leave broad swaths of faculty members' work unprotected from retaliation. Such reasoning could significantly chill faculty speech, threatening the vital role that academic speech plays in society and the corresponding role universities play as centers for debate and discovery. Because of this societal role, as well as the practical differences between the official duties of faculty members and other public employees, the brief further argues that the Garcetti "official duties" analysis should never be applied to faculty members.

Update: On April 6, 2011, the Fourth Circuit issued a ringing endorsement (.pdf) of the First Amendment rights of faculty members at public colleges and universities. After acknowledging that courts should engage in only "limited review" of academic employment decisions, the Fourth Circuit concluded that the district court had "misread Garcetti."

The court first held that because Professor Adams' columns and other materials were protected by the First Amendment when he wrote them, they could not be "transformed" into unprotected speech when he included them in his application for promotion.

The appeals court then explained that "Garcetti would not apply in the academic context of a public university as represented by the facts of this case." The court noted that the majority's decision in Garcetti "explicitly left open" how the official duties analysis would apply "in the academic genre where issues of 'scholarship or teaching' are in play." The court therefore held that "[a]pplying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment. In light of the above factors, we will not apply Garcetti to the circumstances of this case."

The Fourth Circuit next took up the university's argument that because Adams was an associate professor, and because that position obligated him to "engage in scholarship, research, and service to the community," Adams was essentially "employed to undertake" the speech in question (thereby rendering it unprotected under Garcetti). Rejecting that assertion, the court recognized the additional constitutional issues at play for public-sector faculty speech, and declined to find his speech unprotected simply because his role as a faculty member involved "writing, public appearances, and service." The court added, "This argument underscores the problem recognized by both the majority and the dissent in Garcetti, that 'implicates additional constitutional interests that are not fully accounted for when it comes to 'expression related to academic scholarship or classroom instruction." Put simply, Adams' speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields. For all the reasons discussed above, that thin thread is insufficient to render Adams' speech "pursuant to [his] official duties" as intended by Garcetti.ﾔ This court therefore recognized that the expectation that faculty members will engage in a wide range of activities does not make all of those activities unprotected by the First Amendment.

Finally, the court reviewed Adams' actual speech to see whether it was spoken in his role as a citizen commenting on a matter of public concern, a necessary factor for First Amendment protection. The court noted that this analysis "permits a nuanced consideration of the range of issues that arise in the unique genre of academia." After reviewing the "content, form, and context of the speech . . . in light of the entire record," the court concluded that Adams' speech was indeed "that of a citizen speaking on a matter of public concern." As the court observed, "Adams' columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality. Such topics plainly touched on issues of public, rather than private, concern."

The court therefore remanded the case to the district court to consider whether Adams' interest in speaking on these matters outweighed the university's interest in "providing effective and efficient services to the public" and whether the speech was actually a substantial factor in the decision not to promote him to full professor.

As a last point, the court noted that the defendants had argued that they should be immune from suit because their conduct did not violate a "clearly established constitutional right" (which is the test for whether public officials have what is called "qualified immunity"). The court firmly disagreed, ruling that the "underlying right"- that Adams asserted - "that of a public employee to speak as a citizen on matters of public concern" - is "clearly established and something a reasonable person in the Defendants' position should have known was protected."