joshua x’s blog

A California court upholds UC-Irvine’s retaliation against engineering prof Juan Hong for complaining about permatemping–are you next?

AAUP senior counsel Rachel Levinson has taken to sending occasional emails to AAUP members about the truly scary state of case law affecting traditional faculty rights. Her latest, on the retaliation against Irvine professor Juan Hong for speech in direct performance of his governance duties, is one of the most-forwarded emails of the past year, appearing on half-a-dozen lists and blogs that I regularly read. It’s a chilling ruling that crudely applies the Garcetti case (permitting retaliation, including demotion and discharge, against public employees for speech in relation to their duties).

Yeah, you read that correctly. He was retaliated against for speech in direct relation to his governance duties, and the court upheld it. If he had issued pro-Nazi sentiments, he would have been safe. But because he said permatemping is bad, they could drive him out with impunity. (He has since retired.)

I’ve reproduced Levinson’s remarks in full below, and you can read a pdf of the complete amicus brief that she prepared for Hong’s appeal. The AAUP pays for Levinson’s (highly-discounted) work, its extensive advocacy efforts, lobbying, scholarship, and policy statements, and the travel & meeting expenses of a fleet of faculty volunteer officers like myself–out of the dues of just 45,000 members. That number is 1/2 the number of dues-paying members in 1972, and the total annual budget is smaller than that of many disciplinary associations.

Forgive my bluntness, but, dude, you want this work to continue? Then click here and join. Like, right away. Faculty serving contingently and graduate employees pay highly discounted rates.

Faculty Speech and the First Amendment
by Rachel Levinson, AAUP Senior Counsel

Imagine that you are teaching at a public university that not only supports but encourages your participation in institutional governance. You speak up on several matters that you think undermine the faculty role or your students’ experience—and for your trouble, you are denied a raise, saddled with additional work, or even fired. Do the university’s actions violate the First Amendment?

The AAUP and the Thomas Jefferson Center for the Protection of Free Expression recently filed an amicus (“friend of the court”) brief in such a case. The brief, which was filed with the U.S. Court of Appeals for the Ninth Circuit, supports the appeal of Dr. Juan Hong in his First Amendment lawsuit against the administration of the University of California, Irvine. The case could have significant implications for faculty members at all public colleges and universities—and, ironically, could have the strongest negative impact on faculty that are encouraged to participate in university governance.

Dr. Hong, a full professor at UCI, allegedly angered university administrators by opposing certain faculty hiring and promotion decisions and the university’s use of lecturers in place of professors. After Dr. Hong was denied a merit salary increase and given an increased workload, he filed suit, claiming that the university violated his First Amendment right to free speech.

A federal trial judge in California rejected Dr. Hong’s claim. The judge reviewed Garcetti v. Ceballos, in which the Supreme Court ruled that the First Amendment did not protect public employees from discharge for statements made “pursuant to their official duties” but declined to decide whether its ruling extended to “speech related to scholarship or teaching.” The judge in Dr. Hong’s case concluded that Dr. Hong’s participation in faculty governance was “pursuant to his official duties,” and that the university’s retaliation therefore did not violate the First Amendment. The court failed to acknowledge, however, that the Garcetti decision explicitly set aside the question of protection for academic speech, and held that “UCI is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”
The AAUP’s amicus brief focuses on the unique status granted to academic speech, and its relation to shared governance. The brief notes that faculty speech has been accorded special First Amendment protection by the Supreme Court since Sweezy v. State of New Hampshire, 354 U.S. 234 (1957). The hallmark of such cases, the brief notes, is the recognition that academic freedom merits distinctive First Amendment protection against repressive action from within or outside the campus community.
The AAUP brief argues that participation in faculty governance is part and parcel of professors’ First Amendment-protected right of academic freedom to speak without fear of retaliation. The brief also observes that the court failed to distinguish between faculty rights and responsibilities, and argues that the court’s decision will empower universities with strong policies in favor of shared governance to discipline faculty members who annoy administrators through their involvement in university governance.