An illuminating analysis of the case noted yesterday by Keith Whittington (Princeton) at CHE; an excerpt:
[W]hat about so-called intramural speech, when professors speak and write as citizens of the campus community and officers of an educational institution? The courts have had relatively little to say about faculty speech in that context, and that is where the new decision by the Fourth Circuit comes in. In Porter v. North Carolina State University, a 2-to-1 majority held that the Garcetti exception should be read narrowly to cover only research and teaching. Intramural speech, unlike extramural speech, is not merely a matter of private opinions expressed in a private capacity. When professors participate in faculty meetings or committee deliberations, they are acting pursuant to their ordinary job duties. Without a Garcetti exception, that means that such speech enjoys no First Amendment protection at all. The courts wouldn’t even get to a Pickering balancing test of employee and employer interests. When performing duties other than teaching or scholarship, professors can be freely sanctioned by college officials for anything they might say — at least so far as the First Amendment is concerned.
The courts have not been actively involved in cases of intramural speech, and the doctrine in this area is especially unsettled. In 1976, for example, the Ninth Circuit heard a case of an assistant professor who was not reappointed after he declared that “this college is run by a jerk” at an Academic Senate meeting. That court thought that “momentary stridency” in faculty deliberations deserved some constitutional protection.
The courts could build on the logic of the AAUP and extend constitutional protection to intramural speech. That would require further treating professors as different than other government employees. Professorial speech regarding such matters as faculty hiring or curriculum design are so closely related to matters of teaching and scholarship that perhaps it should also fall under the Garcetti exception. If we are willing to take that step, can we take the further step of protecting intramural speech on such matters as the appropriate Covid response by colleges or campus policies regarding undergraduate-admission policies? That probably wouldn’t work, because ultimately courts are likely to think that such faculty speech is just “an employee grievance concerning internal office policy” that should be left to college officials to resolve.
The dissenting judge in Porter took a different approach, treating intramural speech the same as extramural speech. Speaking at a faculty meeting was not an employment duty, the dissenting judge thought, and thus should be treated as purely private speech, like a blog post. That does not seem like a sustainable path to take.
