BELL LAW FIRM, LLC
The Legal Aspects of LSU Firing an Outspoken Non-tenured Professor
A research associate non-tenured professor at LSU has been told he will not be reappointed. Can he fight that termination in court even if he is not tenured?
Van Heerden's case may be a good test of whether a recent U.S. Supreme Court decision limits academic freedom
Although non-tenured teachers at public schools can be fired without just cause, their speech is still entitled to the constitutional protections of the First Amendment’s free speech clause. The recent U.S. Supreme Court decision in Garcetti, however, may have weakened these rights especially where the speech is made pursuant to one's employment duties----as the speech was made, it appears, in the van Heerden case. Before the recent Garcetti decision, speech was constitutional protected provided the employee balanced his interest in speech with the university's interest in the overall functioning of the university (efficiency, effects on the loyalty of other employees, and the disruption to the workplace). If that sounds weak or vague, it is, but it gets worse with Garcetti.
The Garcetti Court ruled that when public employees speak “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.” The pre-Garcetti balancing of the competing interests of employee and employer is no more. The major issue now would be whether the employee is speaking pursuant to one’s official duties (YOU LOSE) or not (as a citizen and you then have to prove the speech was of public concern---no easy matter).
The Garcetti Court, though, left hope for academics: “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for” by the Court’s decision.
Post-Garcetti decisions, though, affecting elementary and secondary school teachers have not been encouraging. A university case that involved a faculty governance issue was not encouraging either. The latter decision is worth only so much since it did not test the limits of Garcetti because speech involving faculty governance would likely have lost pre-Garcetti anyway.
The major issue in the post-Garcetti cases revolved around whether a teacher's speech was made as a citizen or as a teacher. If it was made as a teacher, there was no First Amendment protection extended to the speech—just as Garcetti instructed. If the person spoke as a citizen on an issue of public concern, however, speech protections could be extended. I realize this is topsy turvy—a person who is speaking on something for which he may be an expert or is work-related is not protected, but if he speaks on something for which he may know little but it is of public concern—he’s got constitutional protections. This weirdness was present in Garcetti: no speech protections to a deputy district attorney fired for voicing concerns over the truthfulness of critical statements made to acquire a search warrant. Since the deputy DA made these comments pursuant to his employment duties, the Court Court wrote, he had no speech protections.
Van Heerden, too, has made comments controversial to his superiors pursuant to his employment duties and, if Garcetti is followed on campus as it is off, Van Heerden loses. If there is academic freedom beyond that allowed in Garcetti---van Heerden may win.