I noticed a short item today at Inside Higher Education about Mike Adams, an associate professor of of criminal justice at the University of North Carolina at Wilmington , who is suing the university on the grounds that his promotion to full professor was denied due to his conservative Christian views. (Apparently, this legal action has been underway since 2007.)
I know very few details of the case, so I'm in no position to opine about whether Adams should or should not have been promoted. But there's one element of the case that seems to be legally interesting:
But part of the judge's ruling also rejected the idea that Adams has First Amendment protection for the columns he wrote for various publications (columns known for a mocking tone along with hard line views) because he submitted them as part of his promotion dossier. And the reason that the columns have no protection, the judge ruled, is the Garcetti decision. Because Adams is receiving strong support from conservative groups for his suit, the ruling is drawing their attention to Garcetti's impact on the academy.
The Alliance Defense Fund, which has been backing Adams, issued a statement Monday in which Jordan Lorence, one of its lawyers, said: "We disagree with the court's assessment that Dr. Adams's speech is somehow not protected by the Constitution. Opinion columns are classic examples of free speech protected by the First Amendment, and mentioning them on a promotion application does not change this fact."
Garcetti v. Ceballos was filed by a deputy district attorney in Los Angeles who was demoted after he criticized a local sheriff's conduct to his supervisors. The ruling in the case found that First Amendment protections do not extend to public employees when they speak in capacities related to their jobs. A footnote said that the ruling did not necessarily apply to higher education. But to the dismay of faculty groups, several federal judges have applied it in the higher education context.
Several of those cases have involved faculty members who criticized their administrations. The Adams case is one that might seem quite close to the First Amendment, as it involves controversial stands on political issues.
The ruling in the case said, however, that even if the columns played some role in his treatment, they lacked First Amendment protection. The judge ruled that as soon as Adams submitted them in his tenure dossier, they became part of his work as a professor. And once they became part of his work as a professor, he lost First Amendment protection for them, the judge ruled, citing Garcetti.
A few things have me scratching my head here.
One is the practical question of why a professor going up for promotion would include in the dossier of materials to support that promotion case a series of newspaper opinion columns. If these columns bore directly on the professor's academic work (either in the realm of research or teaching) and stood as shining examples of his or her clear thinking and writing, maybe including them would make sense (and I say this as someone who included some non-traditional items in my own tenure dossier). But if they presented "hard line views" (with which, conceivably, at least some members of one's promotion committees might disagree) advanced primarily by "a mocking tone" rather than cogent arguments, including them, especially if they were written outside the bounds of the job that is being evaluated, seems foolhardy. Indeed, knowing academics as I do, it might be a good bet that some committee members would view unfavorably columns expressing opinions they shared if the columns relied on sloppy argumentation (or on rhetoric in place of argumentation).
Whoever was giving Mike Adams advice on how to compile that promotion dossier may owe him an apology.
Another question I have is from what exactly is the First Amendment supposed to protect me when I include a piece of my writing in a dossier on the basis of which my job performance is to be evaluated?
The freedom to express my view does not come with a guarantee that others will agree with it, or keep their disagreements with it to themselves, or express those disagreements in civil terms. Indeed, in a context where I am presenting the expression of my view for evaluation, I expect that that expression of my view will be evaluated -- perhaps unfavorably. And I expect this for my peer reviewed articles as much as for any other writings I may offer for evaluation. Do you think that, just because the peer reviewers for a journal in your field judged your thinking original and your arguments well supported, your colleagues will refrain from critiquing them? Attend a journal club meeting and your eyes will be opened.
However, the fact that my expression of my view has been evaluated unfavorably does not mean that the person so evaluating it has infringed my right to free speech.
Maybe the worry here is the power of one's employer to stifle one's free speech. Perhaps the problem is that Adams's promotion committees were evaluating the wrong element of his opinion pieces, focusing on his views rather than on the logic and evidence he deployed to defend them. Practically, establishing such illegitimate evaluative focus might be really difficult (although I suppose asking for the detailed critique of one's logic and evidence would be a sensible way to gauge the extent to which these "legitimate" elements for evaluation were judged lacking).
But this strikes me as just another reason to be wary of including writings where academic standards of argumentation are not clearly on display if those writings could be left out of the dossier altogether.
I guess the question here is one of balance. We enjoy the right to speak our minds, but we're not always thrilled by the blowback from having spoken them (even though this blowback is generally a matter of other people exercising their right to speak their minds). We want work in the academic milieu to somehow count our activities in the public sphere as part of the important intellectual work we do, but then we get upset when those activities in the public sphere are subjected to evaluation.
I know some will argue that academics already have much more freedom to exercise their First Amendment rights than do people in other employment settings. (Since almost all of my employment has been in academia, I'm not the right person to ask about whether this is a plausible argument.) Honestly, I like being in a situation where I'm not evaluated on what I think but on how I think (as well as how many students I can get to meet specified student learning objectives per semester). But I reckon my employer has some interests in this relationship, too, and that some of those might play a role in decisions about whether to promote me.
If my activities off the clock might lead my employer to judge that I don't exemplify the qualities of mind the organization values, it only makes sense to keep those extracurricular activities out of the case I make that the organization should promote me. On the other hand, if I orchestrate a situation where worlds collide, I can't count on the aftermath of the collision playing out in my favor.
Eh, I think he tried the "secret handshake trick" and it backfired, now he's being a sore loser.
I once had an interviewer detect my (literal) secret handshake and judge me very negatively for it. I accepted the rebuke.
On the other hand, if I orchestrate a situation where worlds collide, I can't count on the aftermath of the collision playing out in my favor.
My cynical nature leads me to think that Adams might have deliberately set up a 'when worlds collide' scenario on purpose and counted on it playing out in his favor.
Suppose I knew I would not get tenure in any legitimate way. Further suppose I then purposely added some sort of ancillary, antagonistic document that I thought should be protected by the 1st amendment. Then, when I was denied tenure for valid reasons, I could claim instead that the decision was based on the irrelevant, but protected documents. Lots of conservative groups would jump to my aid. Either I would get tenure through a successful or I would get rich from a book deal or a job on a faux news channel.
I am thoroughly confused. My understanding of the free speech portion of first amendment is that you cannot be prevented from expressing yourself (within certain bounds) or arrested for having an unpopular opinion. Although there are certain non-discrimination exceptions, in general you can be fired, let alone not promoted, for expressing yourself. Your employer cannot prevent you from expressing yourself but is under no obligation to continue employing you. Have I been in the private sector too long?
Provocation is the applicable word.
The legal argument is that, rather than a permissible exercise of professional judgment by his government employer based on his speech, he was unconstitutionally punished by his government employer based on his speech. Given that the speech in question was affirmatively placed at the center of the professional judgment process by the plaintiff himself, this is a pretty piss-poor argument. It is also important to point out that the only reason a first amendment claim could be made at all is that the employer is the government.
I haven't read the court's decision, and the description you quote is very vague, but it would seem to me that a better legal basis for ruling against this plaintiff would be that--regardless of whether any first amendment rights pertain to his speech--any such rights have not been violated.
I do not know much of the case either... but I suspect these opinion pieces actually made the bulk of the dossier and thus the denial for promotion. I doubt that the inclusion of a handful of opinion pieces among other, peer-reviewed, academic research material would matter one way or another. Of course, I presume like in the UC, promotion to full professor also required external letters which might not have been favorable.