By Amy Miller
Academic Freedom
Academic freedom is a concept upheld in American
universities that supports the freedom of inquiry
(freedom to learn) by both students and faculty
members, and the freedom to teach or communicate
ideas or facts.
The idea of academic freedom originated from
German universities.
Academic Freedom and the First
Amendment
Early History
*Public employment was a privilege, not a right.
*Earlier cases held that contract provisions between
the board and the teacher could prohibit the exercise
of various rights and freedoms.
*If the teacher violated the terms of the contract,
though they were repressive of teachers’ rights, the
teacher could be dismissed.
*Teachers could
be dismissed for marriage, absence
from school for childbirth, or discussion of politics
in the classroom.
*The courts based their conclusions on common law
reasonableness, not constitutional rights and
freedoms.
*School boards could dismiss teachers for “valid
reasons,” or at the pleasure of the board, which
many times bore little relationship on their ability to
teach.
Academic Freedom and the First
Amendment
Under the Bill of Rights, “all aspects of the academic
freedom are found in the speech, expression, privacy,
and religion provisions of the First Amendment.”
(Alexander & Alexander, 2005).
Academic freedom is not, in and of itself, a separate
constitutional protection, but instead it is a desirable
end to be achieved by the enforcement of the
individual rights and freedoms as guaranteed by the
Bill of Rights.
The protection to learn and teach does not come from
academic freedom, but is founded in the
constitutional protections of free speech and
expression within the First Amendment.
To focus on academic freedom, we need to look at
what the courts have said about the basis for
controlling or limiting free speech of employees.
Keyishian v. Board of Regents
385 U.S. 589 (1967)
Faculty at the State University of New York were forced
to sign documents stating that they were not members
of the Communist Party. These members refused to
sign the documents and were fired. The New York
state law prohibited membership in subversive groups.
The Court ruled that imposing a loyalty oath or
prohibiting membership in subversive groups
unconstitutionally infringed on academic freedom and
freedom of association.
This case extended First Amendment protection to
academic freedom.
Speech Rights of Public Employees
The Court has concluded that practical reality requires
that government, at certain times and under certain
conditions, be able to restrict employees’ speech in
order to fulfill its responsibilities to operate effectively
and efficiently.
Do you think educators can openly and publicly
criticize the administration, school board members, or
other teachers? Why or why not?
Pickering v. Board of Education
391 U.S. 563 (1968)
 A high school science teacher wrote a letter to the editor of
a community newspaper in response to material from the
superintendent and the Teachers’ Organization, criticizing
the board of education’s allocation of funds between
academics and athletics. The school board dismissed the
teacher, saying that the letter contained false statements
that challenged the integrity of the school system. The
teacher sued, claiming that the board violated his First
Amendment rights by terminating him for exercising his
right to freedom of speech.
 The Court held that school officials do violate the First
Amendment when they terminate a public school teacher
for speaking out as a citizen on matters of public concern.
The Pickering Rule
The courts implemented a flexible rule that provides
for balancing the public’s interest against the private
interest of the employee in each circumstance.
*This balance does not remove all state restraint
on teachers.
*The courts have a strong belief that teachers are
in a sensitive position and must be held
accountable for certain activities both in and out
of the school.
“The Pickering Balancing Test”
 The Pickering Test is applied in evaluating the interests of a public
employer with its employees’ right to Free Speech and requires the
court’s consideration of the following:

A public employee has a protected right under the First Amendment
to comment on “matters of public concern,” no matter what the
employer thinks.

If the employee's comments aren't on a “matter of public concern,”
those comments are not protected.

If the employee's comments are on a matter of public concern, then
the employer must demonstrate that the speech would “potentially
interfere with or disrupt the government's activities, and can
persuade the court that the potential disruptiveness” outweighs the
employee's First Amendment rights.”
Apply the Pickering Test
Pappas v. Giuliani (2002) 290 F. 3d. 143.
 New York Police Department officer Thomas Pappas
received charity donation requests and would sometimes
use the business-reply envelope to mail racist and antiSemitic materials back to the charity.
 When the Mineola (N.Y.) Auxiliary Police Department sent
Pappas a request for support, Pappas filled the businessreply envelope with fliers that “… asserted white supremacy,
ridiculed black people and their culture and warned
against the ‘Negro wolf … destroying American civilization
with rape, robbery and murder,’ and declaimed against
‘how the Jews control the TV networks and why they
should be in the hands of the American public and not the
Jews.’”
 Internal affairs investigators then confronted Pappas, who
admitted that he had sent the materials: “I was protesting
and I was tired of being shaken down for money by these
so-called charitable organizations. And it was a form of
protest, just put stuff back in an envelope and send stuff
back as a form of protest.”
 Pappas was fired for mailing the out the material. He sued
Mayor Giuliani and the NYPD Commissioner, Howard
Safir, alleging violation of his free speech First Amendment
rights.
 How do you think the court ruled this case? Why?
 Judges agreed that Pappas' “speech” was on a matter of public concern.
This allowed the judges to go straight to the question of whether
Pappas' speech “potentially interfered with” or “disrupted” the NYPD's
activities.
 They ruled that the Pickering balance leaned in favor of the employer.
 Even though Pappas was not in contact with the public (he had a desk
job), if the press were to become aware that a sworn NYPD officer
disseminated racial criticisms, it would report that this was done by a
police officer.
 A “governmental employer's right to discharge an employee by reason
of his speech in matters of public importance does not depend on the
employer's having suffered actual harm resulting from the speech. The
employee's speech must be of such nature that the employer
reasonably believes that it is likely to interfere with the performance of
the employer's mission.”
Connick v. Myers (1983)
461 U.S. 138
 Public employee, Assistant District Attorney Sheila
Myers, was informed that she would be transferred to
prosecute cases in a different area of criminal law.
 Myers opposed her transfer and in response passed out
a questionnaire to fellow attorneys soliciting
information about office morale and pressure to work
political campaigns.
 Myers was fired for insubordination.
 The Court upheld Myers’s dismissal because the
speech “substantially interfered” with the operation of
the office.
 Out of this case came the combination of Pickering
and Connick to form a two-step free speech test:
*First, the initial inquiry is whether the speech is a
matter of public or private concern.
*Second, if the speech is found to be a matter of
public concern, the court must then apply the
Pickering balance test.
Speech and the Garcetti Rule
 In 2006, the U.S. Supreme Court in Garcetti v. Ceballos
tightened the reins on the free speech of government
employees.
 This nonschool case has significant public school
implications.
Garcetti v. Ceballos (2006)
547 U.S. 410
 Richard Ceballos, an employee of the Los Angeles District Attorney's
office, found that a sheriff misrepresented facts in a search warrant
affidavit that would invalidate the warrant. Ceballos notified the
attorneys prosecuting the case stemming from that arrest and all
agreed that the affidavit was questionable, but the D.A.'s office refused
to dismiss the case. Ceballos then told the defense he believed the
affidavit contained false statements, and defense counsel subpoenaed
him to testify.
 Ceballos claimed that he was subsequently subjected to a series of
retaliatory employment actions. These included reassignment to a
different position, transfer to another courthouse, and denial of a
promotion. He initiated an employment grievance, which was denied
based on a finding that he had not suffered any retaliation.
 Ceballos claimed that his memo and verbal exchanges were
constitutionally protected free speech.
 His superiors countered that his memo and his objections
to instructions of his superiors were not entitled to free
speech protection, rather were employment duties and
could be the basis for discipline.
 In holdings against Ceballos, the Court held that speech by
a public official is only protected if it is engaged in as a
private citizen, not if it is expressed as part of the official's
public duties.
What does this mean for us?
 Pickering, Connick, and Garcetti leave an abundance of
unanswered academic freedom questions for future
litigation.
 When public employees make statements pursuant to their
official duties, these statements are not protected by the
First Amendment and are subject to employer control.
 Termination can result from speech that:
*can be reasonably believed to undermine authority
*disrupts decorum
*harms working relationships
In other words…
 When a citizen becomes an employee of a public
entity, the right to free speech as a citizen still applies;
however that right is more restricted and limited.
 Make sure that your communication in the workplace
does not undermine authority, disrupt decorum, or
harm working relationships.
 What is your opinion on this teacher’s free speech
rights? http://lolsnaps.com/news/5979/0/