On intramural speech and the First Amendment. ADVERTISEMENT [The Review Logo]( You can also [read this newsletter on the web](. Or, if you no longer want to receive this newsletter, [unsubscribe](. The 2006 Supreme Court case Garcetti v. Ceballos has long struck proponents of academic freedom as a ticking time bomb. The decision limited the First Amendment protections enjoyed by public employees when speaking in the course of their job duties (as opposed to speaking extramurally, as citizens, which remains well-protected). Although the case did not involve higher-ed personnel, the danger posed to the speech rights of public-college faculty members is obvious. After all, what are scholars doing in the classroom or in their research if not speaking pursuant to their job duties? In a dissenting opinion, Justice David Souter named the threat: âThe ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that todayâs majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities.â Writing for the majority, Justice Anthony Kennedy assured that it did not: âWe need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship and teaching.â But, as the Princeton political and legal theorist Keith Whittington [explained]( in our pages, a recent decision by the Fourth Circuit imperils that exception. In Porter v. Board of Trustees of North Carolina State University, a 2-1 majority determined that a faculty member named Stephen R. Porter, who had argued fiercely against including a question about diversity in student course evaluations, was not protected from adverse employment consequences on the grounds of academic freedom. The court reasoned that, since Porter âwas not teaching a class nor was he discussing topics he may teach or write about as part of his employment,â his objections to proposed changes in course-evaluation policy were not matters of academic freedom. Whittington disagrees. In a recent article titled â[What Can Professors Say on Campus? Intramural Speech and the First Amendment]( he develops a theory of academic freedom that would place speech like Porterâs â job-related emails, office memos, comments during faculty meetings, and so forth â squarely within its protection. The first thing to understand is why thereâs any ambiguity. The American Association of University Professorsâ 1940 statement on academic freedom establishes that professors âare entitled to full freedom in research and in the publication of the results"; in âthe classroom in discussing their subject"; and âwhen they speak or write as citizens.â That trinity â freedom of research, freedom of teaching, and freedom of extramural speech â has since been formalized across the college landscape. In the case of public colleges, a series of Supreme Court decisions in the â50s and â60s established a strong First Amendment interest in academic freedom so defined. NEWSLETTER [Sign Up for the Teaching Newsletter]( Find insights to improve teaching and learning across your campus. Delivered on Thursdays. To read this newsletter as soon as it sends, [sign up]( to receive it in your email inbox. Intramural speech of the kind involved in Porter isnât, at first glance, included in the AAUPâs 1940 statement. But Whittington argues that âscholarly research and classroom instruction are best read as stand-ins for a broad set of activities and expressions that are ârelated toâ those core scholarly functions,â including speech like Porterâs. Whittington depends on the useful definition of intramural speech offered by Matthew Finkin and Robert Post in their [book]( For the Common Good: Principles of American Academic Freedom: It is âfaculty speech that does not involve disciplinary expertise but is instead about the action, policy, or personnel of a faculty memberâs home institution.â The Fourth Circuit decided that such speech isnât properly academic, and therefore not insulated from Garcettiâs weakening of public-employee speech. To Whittington, this is a perversely narrow construal of academic freedom. As the AAUP [stated]( formally in 1994, âthe protection of the academic freedom of faculty members in addressing issues of institutional governance is a prerequisite for the practice of governance unhampered by fear of retribution.â Educational policies as intimately connected to the business of teaching and scholarship as student evaluation materials, Whittington suggests, ought to be considered matters of institutional governance well within academic freedomâs pale. Moreover, the Supreme Courtâs mid-century concern for academic freedom was not narrowly confined to classroom or research; rather, a more general âspecter of forced conformity in academia ⦠worried the justices of the era,â as Whittington puts it. Matters of intense ideological contestation like specific diversity efforts are especially vulnerable to forced conformity. Whittington concludes that, if intramural speech about such matters does not merit protection, then âa professor who defended such a policy at New College in Florida might well find herself fired for voicing ideas repugnant to the current trustees and administration. On the other hand, a professor who criticized such a policy at a state university in California might find herself fired for voicing ideas repugnant to the majority of her faculty colleagues as well as the university administration.â The solution, Whittington says, is to bring intramural academic speech âunder the umbrella of the Garcetti exception for academic freedom.â The Garcetti exception, recall, is the idea that faculty members are exempted from Garcettiâs failure to find that public employees have robust job-related speech protections. A Sixth Circuit case, Meriwether v. Hartop, [found]( such an exception with respect to classroom speech; a Ninth Circuit case, Demers v. Austin, found that âGarcetti does not â indeed, consistent with the First Amendment, cannot â apply to teaching and academic writing that are performed âpursuant to the official dutiesâ of a teacher and professor.â Whittington makes a strong case that unless intramural speech of the sort at issue in Porter is not similarly excepted, Garcetti remains a severe threat to the spirit and practice of academic freedom. Read Keith Whittingtonâs â[What Can Professors Say on Campus?]( and â[A Recent Appeals-Court Ruling Imperils Academic Freedom]( Next week, Iâll explore the question of how academic freedom extends to administrators, or doesnât. ADVERTISEMENT Upcoming Workshop [The Chronicle's Strategic Leadership Program for Department Chairs] [Join us this October]( for a virtual professional development program on overcoming the challenges and seizing the opportunities of the department chair role while creating a strategic vision for your department. 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