Fearless blog leader Eugene Volokh highlighted a recent federal district opinion involving the First Amendment and political speech by state university professors. Unfortunately, the opinion illustrates the problem with how many courts conduct a Pickering balancing test in university settings. An appellate court could productively correct this error if it paid head to my forthcoming Wake Forest Law Review article on "What Can Professors Say in Public?"
To briefly recap, Professor Andrew Donadio serves as the faculty advisor for the local chapter of Turning Point USA at Tennessee Tech University. Professor Julia Gruber and Andrew Smith (an instructor) produced a flyer that they placed around campus declaring that the "hate and hypocrisy" of "Professor Donadio and Turning Point USA" are "not welcome at Tennessee Tech" and that there should be "no unity with racists" and that "hate speech is not free speech." In response to a complaint by Donadio, Provost Lori Bruce disciplined Gruber and Smith for violating Policy 600, which requires members of the faculty "to conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards." The flyer can be seen here. Gruber and Smith sued Bruce for retaliatory action against constitutionally protected speech. The district court upheld the university's discipline.
The Supreme Court laid down the relevant analytical framework for resolving such cases in Pickering v. Board of Education. When a government employee speaks in his or her personal capacity about a matter of public concern, the courts recognize some First Amendment interest against reprisal by the governmental employer. When such speech is at issue (as is the case here), then courts must balance the employee's First Amendment interests against the employer's interest in the efficient delivery of government services. That balancing is understood to require a highly contextual judgment.
