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.
Unfortunately, Tennessee Tech ignored its own policy against punishing speech that some might find "offensive" or "disagreeable" on the grounds that the flyer constituted unprofessional conduct and a "personal grievance" rather than political speech. The court agreed that "calling a colleague a racist is hardly collegial" and "sneaking around and dropping-off anonymous flyers . . . falls short" of "respectful" conduct. Even though the university had shown "little in the way of actual harm" (Donadio got a Fox News hit out of the dust-up and it was otherwise business as usual on campus), the court thought the university had an overriding "interest in fostering a collegial educational environment."
As I argue in the forthcoming article, such an analysis is completely unsuited to a university environment. The government's interest in fostering a harmonious working environment might be quite strong in the context of a police department, but in the context of professors at a university the demand for "harmony" and "collegiality" too easily becomes a heckler's veto aimed at silencing disagreeable political speech. As then-Judge Alito noted, "'Harassing' or discriminatory speech, although evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections." Although the district court quoted the 6th Circuit on a "university's interest in maintaining a hostile-free learning environment," it ignored that court's warning that such speech is protected when it "serve[s] the purpose of advancing viewpoints, however repugnant, which had as their purpose influencing or informing public debate."
The key question is what should count as disruptive speech in the university context. If academic freedom values are going to be adequately protected, the government employer's concern with fostering workplace harmony needs to be sharply cabined when it comes to the extramural speech of university faculty. The demand for harmony in academia can easily become a demand for "supineness and dogmatism." Reconciling academic freedom with the university employer's interest in preventing disruption requires more guidance than the Court has thus far provided. Protecting academic freedom means protecting "the freedom to teach and write without fear of retribution for expressing heterodox ideas." Universities should foster intellectual disruption, but they need not tolerate "interfer[ence] with the work of the school."
. . .
Professors who incite anger by expressing unpopular ideas or making use of inflammatory rhetoric are a byproduct of fostering a vigorous intellectual environment, and universities have no legitimate interest in disciplining them for ruffling feathers by speaking their minds. Professors who incite anger by being verbally abusive to students or staff, however, are not speaking as citizens or advancing ideas. They are not disrupting their workplace by challenging conventional wisdom but by bullying those around them. Professors who are merely "demeaning, rude, and insulting" give universities good cause to take action to curb their behavior. The Court has said that the "manner, time, and place" of a government employee's speech should weigh in the Pickering balance. Professorial speech that is directed to the broader community or to an audience and addresses a matter of public concern will always deserve a high degree of constitutional protection, even when members of the audience take offense, but the face-to-face hurling of personal insults at a student or fellow employee is much less likely to weigh in favor of a professor in a Pickering balancing.
The distribution of a flyer on a college campus denouncing the political activities of professors and student groups is precisely the kind of "free exchange of ideas" that Tennessee Tech has committed itself to tolerating and that the First Amendment protects on a state university campus. Speech is no less protected whether it offends the sensibilities of those on the left or on the right. Donadio should not be disciplined for his "shocking" speech, and Gruber and Smith should not be disciplined for their counter-speech.
Weaponizing professional conduct regulations on campus to suppress unpopular speech is the kind of action that courts should deter rather than encourage. Unfortunately, if not appropriately calibrated to the university context, the Pickering balancing test can subvert rather than protect First Amendment values.
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