Academic Freedom: Faculty Criticism of Employers

2012-10-02 23:50:33 by admin

Academic freedom: External Attempts to Regulate Faculty

Academic freedom: Internal Conflicts Over Faculty Actions

Claims of Academic freedom and freedom of speech often arise when educators criticize their colleagues, administrators, or institutions and later find themselves facing discipline. Under the Mt. Healthy City School District Board of Education v. Doyle (1977) test, courts first consider whether an employee’s expression was constitutionally protected, a finding requiring that the speech dealt with a matter of public concern and was not issued pursuant to official duties. Courts have reasoned that because critical views on university spending (for example, rising administrative salaries and reduction-in-force plans), campus priorities, presidents’ managerial styles, outside community influences on departmental curriculum and education, and governance issues (such as forming faculty bargaining units and campaigning for candidates for the board of regents) are matters of public concern, they are entitled to protection as such. However, faculty members have failed to meet Mt. Healthy’s first step when their published speech deals with internal or personal matters such as membership on committees, teaching assignment of summer and overload classes, and requests for review of faculty disputes and committee operations.

The second step of the Mt. Healthy test balances a faculty member’s right of freedom of expression with an institution’s need for efficient, harmonious operation of its programs. Educators have prevailed when officials failed to present evidence of disruption to their services or undermining of the working relationships within departments or programs, or when the institution’s evidence consisted merely of administrators’ undocumented fear of disruption. However, courts have entered judgments in favor of colleges and universities that established that the faculty member’s expression disrupted the efficient operation of the school. For example, the Eleventh Circuit upheld the reassignment of faculty members in mechanical engineering to other engineering departments in Maples v. Martin (1988) when their published criticisms of the program (among other things, on the eve of the program’s accreditation visit, they called the department head dictatorial and inflexible) created an atmosphere of tension within the department. In other words, while the faculty members addressed matters that were arguably of public concern, the court believed that the expression of these views was not entitled to protection, because it disrupted the efficient operations of their original department.

At the third step of the Mt. Healthy test, plaintiffs must establish that their protected expression was a substantial or motivating factor in the decision subjecting them to punishment. Some institutions prevail at this stage, because faculty members present no evidence tying the discipline to their comments dealing with a matter of public concern. In other claims, courts review the institution’s explanation for its negative employment decision and determine which party’s evidence is persuasive. One university prevailed when officials demonstrated that they chose not to renew the contract of a confrontational writing instructor because of the disruption his style brought to the department, not because he championed diversity in his class and in faculty meetings. Yet, in another case, a history instructor established that officials at a junior college elected not to renew her contract because she participated in efforts to form a faculty chapter of the National Education Association and worked on her husband’s campaign to win a seat on the institution’s governing board, not because of the school’s proffered reasons of poor evaluation of her teaching and the need to reduce staff due to declining enrollment.

Colleges and universities then have the burden of showing at the final Mt. Healthy step that they would have disciplined the employees had the protected expression not occurred. Higher education plaintiffs have not progressed to this final stage in published case law thus far.