AAUP Files Two New Amicus Briefs Supporting Professorial Speech

This week, the AAUP filed amicus briefs in two important legal cases involving the right of faculty members to teach and to speak publicly about curriculum standards and shared governance. Our briefs are a key component of our work to defend higher education for the common good, and they aim to shape the law to support academic freedom, which continues to face an unprecedented barrage of attacks. The AAUP hopes that these amicus briefs will spur the courts to issue decisions that will be favorable to the individual professors involved and that will protect the rights of faculty more broadly in the years to come.

The first case, Kilborn v. Amiridis, concerns the rights of professorial speech in the context of teaching. The AAUP filed an amicus brief in the United States Court of Appeals for the Seventh Circuit in support of Professor Jason Kilborn, a tenured member of the law school faculty at the University of Illinois at Chicago. Professor Kilborn faced retaliation from university administrators for a question he included on an exam and for other teaching-related speech. The incident was sparked by Professor Kilborn’s inclusion of partially redacted racist and sexist terms in a hypothetical employment discrimination scenario on a final exam he wrote for his civil procedure class. After campus controversy erupted, the university investigated Professor Kilborn and accused him of violating the university’s nondiscrimination policy because of the exam question and other speech, including remarks he made during lectures concerning frivolous litigation and race-motivated police stops. Professor Kilborn filed suit against university administrators, but a lower court dismissed his First Amendment claim, ruling that his speech did not involve a “matter of public concern.”

The AAUP’s brief urges the court of appeals to reinstate Professor Kilborn’s claim and to recognize that the First Amendment protects faculty when they engage in speech related to scholarship or teaching. Invoking key AAUP statements, the brief argues that the ability of faculty to freely engage in scholarship and teaching is an essential component of academic freedom, which the Supreme Court has long recognized as being “a special concern of the First Amendment.” The brief also explains that a university cannot function effectively if administrators are permitted to censor academic speech, and that academic speech inherently involves “matters of public concern,” especially since the fulfillment of a university’s public mission requires its adherence to the principle of academic freedom. The full brief and a longer summary of the case is available here.

The second case, Jensen v. Brown, deals with the right of faculty to criticize institutional procedures and changes to academic curriculum. The AAUP and the Nevada Faculty Alliance (NFA) filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in support of Professor Lars Jensen, a tenured professor in the mathematics and physical sciences division at Truckee Meadows Community College in Nevada. Professor Jensen’s college had repeatedly lowered its curriculum standards to make it easier for students to complete math courses and simultaneously ignored internal procedures relating to shared governance. Professor Jensen voiced his concerns on these issues in various ways, including in email communications and in a handout he distributed at a community mathematics summit organized by the college. Shortly after the summit, college administrators took a number of disciplinary actions against Jensen, and Jensen filed suit, alleging retaliation against his exercise of First Amendment rights. The district court dismissed Jensen’s suit, ruling that his First Amendment claims were barred because they did not implicate a “clearly established” right.

The AAUP and NFA’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 important changes to curriculum standards—is clearly established and has long been understood as being essential to academic freedom. In 2006, the Supreme Court in Garcetti v. Ceballos held that the First Amendment does not protect public employees when they speak pursuant to their official duties. But as the brief explains, the court of appeals has recognized that the First Amendment right of faculty to engage in academic speech was recognized long before Garcetti and that Garcetti did nothing to alter that clearly established right. The brief also argues that Jensen’s speech is entitled to First Amendment protection because it involved “matters of public concern” and because Jensen’s interest in speaking on those matters outweighed any interest the college had in restricting him from doing so. 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.” At the same time, a college has 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.” A longer summary of the case with the full brief is available here.