Fourth Circuit Rules Professorial Speech Unrelated To Academic Duties Protected By First Amendment

By Peter G. Land and Jackie Wernz

A federal Court of Appeals recently ruled that the First Amendment to the U.S. Constitution protects a public university faculty member’s speech that is related to scholarship or teaching.  The Fourth Circuit Court of Appeals, which has jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia, based its ruling on a caveat specific to such speech that was set forth in the U.S. Supreme Court’s decision in Garcetti v. Ceballos.  Consistent with Garcetti, the Fourth Circuit also noted that public school faculty speech made pursuant to official duties other than these core academic pursuits would not be protected under the First Amendment.  This aspect of the Fourth Circuit’s ruling dovetails with previous rulings in the Seventh Circuit Court of Appeals, which has jurisdiction over Illinois and other Midwestern states.

In Adams v. University of North Carolina-Wilmington, Michael S. Adams, a tenured professor at the University of North Carolina-Wilmington (UNCW), filed suit against UNCW and a number of UNCW officials.  Adams alleged that, when he applied for promotion, he was discriminated and retaliated against based upon public writings and speaking appearances addressing Christian and politically conservative topics.  Adams had listed these publications and appearances in his application for promotion, as examples of his research and scholarship credentials.  At the trial court level, UNCW admitted that this speech was related to scholarship and teaching but argued that any scholarship conducted by Adams was unprotected speech under the First Amendment based upon Garcetti.  In Garcetti, the Supreme Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and that the Constitution does not insulate their communications from employer discipline.  The trial court ruled that Garcetti applied and dismissed the case before it could go to trial.  The Fourth Circuit Court of Appeals disagreed with the trial court, holding that speech undertaken by a professor relating to teaching and scholarship is protected speech.  The court emphasized that the speech at issue was academic work that was not connected to any specific or direct employment duty.

The Fourth Circuit also recognized, however, that Garcetti may apply to a public university faculty member’s speech relating to assigned duties other than teaching or scholarship.  This conclusion is in line with decisions from the Seventh Circuit Court of Appeals, which has jurisdiction over Illinois, Indiana, and Wisconsin.  In 2010, the Seventh Circuit in Abcarian v. McDonald applied Garcetti to faculty speech regarding administrative policies.  In addition, a 2011 federal district court in Illinois in Capeheart v. Hahs, et. al., granted summary judgment against a faculty member because her speech relating to student advising duties was not protected by the First Amendment. 

Taken together, these decisions emphasize the importance of clarifying the nature of a public university faculty member’s speech to determine the extent to which it may garner First Amendment protection.