Cuttings of the poisonous tree

In 2000, Los Angeles prosecutor Richard Ceballos reported to his superior in the District Attorney’s office that the Los Angeles Sherriff’s Department had relied on an inaccurate affidavit to obtain a search warrant. There was sound, fury, and office politics, and subsequently Ceballos was reassigned, transferred, and denied a promotion. He sued, and the case – Garcetti v. Ceballos – was resolved by a 5-4 U.S. Supreme Court decision in which the majority ruled that Ceballos did not enjoy First Amendment protection for statements he made as part of his official duties.

Outside of the Mad magazine aspect of the case (a district attorney’s office defends the right to punish a prosecutor for reporting official misconduct – and the Supreme Court says that the prosecutor would be protected if he had leaked the story instead), there is the question of what the case implies for faculty governance. Justice Souter, dissenting, wrote that “…I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities…”, an issue that the majority conspicuously stepped around, Justice Kennedy writing that “We…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.”

Notice that Kennedy did not mention governance. (The Biweekly covered the issue in May 2006 and June 2006.) The Supreme Court may have to face the question, as attendees heard in a Legal Forum Workshop at the Joint Conference. Dan McNeil, Assistant Director of the AFT Legal Department, told a panel last week at the AFT/NEA Higher Education Conference that whatever the Supreme Court majority’s view of academic freedom in Garcetti v. Ceballos, the ruling is already being used against faculty in lower courts.

Earlier this decade, Chemical Engineering Professor Juan Hong of UC Irvine expressed his opinion, as part of his departmental governance duties, on several personnel matters. When he was denied a merit pay increase, he sued. UC Irvine moved for summary dismissal, which the District Court granted: the court ruled that as Professor Hong was expressing his opinions as part of the governance component of his job, under Garcetti v. Ceballos he was not protected in expressing those opinions. Hong has just appealed to Circuit Court, and the American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression have filed an Amici Curiae brief.

At the Legal Forum workshop at the conference last week, there were some questions about how faculty can participate in faculty governance if they can be disciplined for saying the wrong things in committee meetings. (I raised the question of what protection an employee has if they are simultaneously required to report observed misconduct and also subject to discipline for making such a report – even if the report was true). The best answer McNeil gave was to have employee protections written into the contract.

At USF, we do have such protection. Article 5, Section 2 of the Collective Bargaining Agreement reads, “Academic Freedom is the freedom of the employee to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, to speak freely on all matters of university governance, to speak, write or act as an individual, all without institutional discipline or restraint.”

This is contractual language, enforceable in grievance proceedings and in court.
So while we hope for the best in Hong v. Grant, we can consider the advantage of being at a unionized institution like USF, complete with an bargained and enforceable contract, rather than a non-union institution like UC Irvine.


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