If this argument isn't rejected wholesale in court, public universities in Florida are finished (and academic freedom at all public universities may be finished):
The State of Florida asserted on Thursday that faculty members’ curricula and in-class instruction at public universities are “government speech” and “not the speech of the educators themselves.” Therefore, such expression is fair game to be regulated by state lawmakers.
“A public university’s curriculum is set by the university in accordance with the strictures and guidance of the state’s elected officials,” lawyers for the state wrote in a court filing. “It is government speech.”
Florida is relying on the 2006 Garcetti case, as I suspected they would; as I wrote previously (regarding Florida's attempt to prevent faculty from offering testimony adverse to the state):
Lurking in the background is the 2006 Supreme Court case of Garcetti, which held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Speech by a public employee which can be grounds for discipline after the fact can also presumably be proscribed outright. Now Garcetti involved a prosecutor who claimed constitutional protection for a memo to his superiors about a warrant whose factual basis he deemed wanting. The Court rejected the attorney’s claim, noting that “his expressions were made pursuant to his duties” in the prosecutor’s office. But are not the teaching and writing of a professor at a public university all “expressions…pursuant to his duties”?
One of the dissenters in Garcetti, Justice David Souter, raised the worrying implications for academic freedom of the majority's decision. This elicited the following concession from Justice Anthony Kennedy in the majority opinion:
"Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship and teaching."
In other words, the Supreme Court simply left it open whether the Garcetti rule applies wholesale to professors at public universities. Florida will presumably claim that Garcetti permits it to prevent its employees, the professors, from testifying.
Since the state is now pushing the envelope on the extension of the Garcetti rule to the universities, a lot is at stake her, especially if it makes it to the Supreme Court.
All of this might explain why Florida universities searching for leaders can't find candidates!
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