Article
TIPPING THE PICKERING BALANCE: A PROPOSAL FOR HEIGHTENED FIRST AMENDMENT PROTECTION FOR THE TEACHING AND SCHOLARSHIP OF PUBLIC UNIVERSITY PROFESSORS
Cornell Journal of Law & Public Policy
(2016)
Abstract
The world has revered teachers from time immemorial. Nations still ponder the wisdom of Aristotle, Socrates, and Plato centuries after their passing. We in America have dubbed educators the “priests of our democracy.”[1] But while there is little debate over the value of teachers to our republic, there is much disagreement over how the Constitution should protect their core academic speech. In the 2006 Garcetti v. Ceballos[2] decision, the Supreme Court implicitly questioned whether the First Amendment provides any protection for the teaching and scholarship of professors at public universities. The Garcetti majority concluded that when any public employee speaks “pursuant to official duties,” such speech is not shielded by the Free Speech Clause.[3] Rigidly applying this test to public university faculty would eliminate the possibility of any constitutional shelter for instruction and research. Mindful of this likelihood, the Court reserved for another day the specific application of its new test to state faculty.
The Court’s reservation has sparked fierce scholarly debate over the nature of constitutional protection for core academic speech. Many scholars have contended that there is no such protection; others have maintained that there is indeed constitutional shelter, but that it belongs primarily to the university rather than the professor. Few have argued for heightened protection for professors, and fewer still have provided an adequate justification for such stricter scrutiny. This article fills that void by explaining how the policies underlying the public employee speech doctrine warrant in favor of heightened First Amendment protection for teaching and scholarship. This unique policy-based approach provides a framework for courts to properly weigh professor speech claims which is also supported by the relevant academic freedom cases. This article thus proposes that courts addressing speech retaliation claims involving teaching and scholarship should apply a modified public employee speech test that presumptively weighs the balance of interests in favor of professors.
[1] Wieman v. Updegraff, 344 U.S. 183, 196 (1952) (Frankfurter, J., concurring).
[2] 547 U.S. 410 (2006).
Keywords
- Academic Freedom,
- Freedom of Speech,
- First Amendment,
- Constitution,
- Public Employee Speech,
- Retaliation,
- Viewpoint Discrimination,
- Professor Speech,
- Free Speech
Disciplines
Publication Date
Spring 2016
Citation Information
Joseph J Martins. "TIPPING THE PICKERING BALANCE: A PROPOSAL FOR HEIGHTENED FIRST AMENDMENT PROTECTION FOR THE TEACHING AND SCHOLARSHIP OF PUBLIC UNIVERSITY PROFESSORS" Cornell Journal of Law & Public Policy Vol. 25 Iss. Number 3 (2016) p. 649 - 696 ISSN: 1069-0565 Available at: http://works.bepress.com/joseph-martins/1/