These decisions have left institutional leaders and governing boards with greater authority over governance matters in areas where faculty traditionally played key roles, such as making curricular decisions. These moves also represent an effort to lessen the shared faculty voice in institutional matters. In Texas, for instance, institutional leaders have broad authority to remove professors as members of faculty senates, including for saying things that displease senior administrators.
We may expect to see more of these state actions and efforts to silence collective and individual faculty voices. After all, the Texas bill largely resembled model legislation that has been circulated by The Manhattan Institute, a right-leaning advocacy group.
These hostile takeovers of public higher education threaten academic freedom and employee speech rights. Even as some states and individual universities are seeking to dampen faculty voice, either collectively or individually, recent legal cases show that employees at public colleges and universities possess important First Amendment speech rights when speaking as private citizens not subject to institutional control or censorship. In other words, even if legislatures or individual governing boards try to limit how faculty may speak as a group through an academic senate, administrators still may not violate individual faculty speech rights. Besides faculty, the right to speak as a private citizen outside of carrying out job duties also applies to other public university employees.
While some public higher education institutions—often under outside political pressure—are seeking to rewrite the First Amendment regarding their employees’ speech rights as private citizens, they are often having to pay six-figure settlements or reinstate dismissed employees.
With a potentially contentious fall election cycle on the horizon, summer is a good time for public higher education institutions to prepare for how they will uphold the legal rights of faculty and staff when they speak as private citizens outside their employee roles, and to plan for how they will respond to political pressure to violate the First Amendment. It’s also a time for faculty and staff to think about how they can individually and collectively use their First Amendment speech rights, including to challenge efforts to silence the voices of university employees to speak up on institutional matters and beyond.
Lessons for Institutions, University Leaders and Administrators
It is often difficult in the middle of a free speech controversy—when emotions are charged—to have nuanced, technical discussions about First Amendment standards and the intricacies of institutional policies and procedures. Institutions should use less tense times to revisit policy and practices, including by reviewing their responses to recent controversies, and to consider where the institution fell short in connection to its mission or First Amendment obligations.
At a minimum, recent legal settlements and decisions highlight the need for institutions to carefully review their preparedness to respond to speech controversies and to uphold the speech rights of their employees as private citizens across a range of political views.
Do campus leaders feel comfortable explaining to constituencies on campus and beyond that they know how to respond when the next speech controversy takes place? Part of this process may be educating multiple stakeholders about employees’ speech rights as private citizens.
Before the next speech controversy over employees’ speech rights, now is the time to engage in dialogue with governing boards, donors, elected officials, and the public generally about how institutions should respond to employee speech that is controversial but likely protected by the First Amendment.
The cost of litigation, reinstatements, and payouts to employees from settlements or legal verdicts could be instructive to lawmakers or governing board members about the financial burden of disregarding employees’ First Amendment speech rights.
Recent legal settlements provide good motivation for public universities to examine how they can ensure that they uphold their employees’ First Amendment speech rights as private citizens and model institutional commitments to free speech and open dialogue.
While we are focused on free speech rights generally, punishing faculty members for their speech as private citizens outside the campus environment can also erode protections for academic freedom. Such considerations are certainly in play in connection with efforts to control the private citizen speech of civilian professors at West Point.
Summer provides an opportunity for university leaders and other administrators to reflect on how far they are willing to tolerate demands, such as from elected officials, to sanction or fire employees for comments made as private citizens that fall well within the bounds of constitutionally protected speech. It is also an opportunity to consider the potential consequences of seeking to diminish faculty role and voice in institutional matters through weakening or eliminating shared governance bodies. One possible outcome is that faculty and staff members will turn to speech rights as private citizens and alternative channels of communication if university senates are no longer a viable option to provide input on institutional matters.
These are challenging times for higher education, and institutions and society are in dire need of leaders willing to refuse to carry out actions in blatant conflict with the law and institutional commitments to open expression. Institutional leaders and administrators, such as department chairs, should take time to reflect during the summer to reflect on when they would feel compelled to say “no” to requests to suppress the legally protected speech rights of their colleagues.
Looking Ahead
The upcoming academic year will present new and ongoing challenges around free speech, including ones connected to employees’ speech rights as private citizens. As states and some institutions have sought to diminish or eliminate shared governance in public higher education, faculty and staff in these states may lean in more heavily into their free speech rights as private citizens, including to comment on events at their institutions. A contentious congressional midterm election is only likely to exacerbate the potential for free speech incidents on campus. Recent legal decisions and settlements indicate that courts are unlikely to ignore public university employees’ First Amendment speech rights as private citizens, even when doing so attracts controversy and unwanted attention. Public universities may find that while upholding their employees’ constitutional speech rights as private citizens can be difficult, ignoring them, along with going against an institution’s mission, can also be expensive.
Neal Hutchens is a faculty member at the University of Kentucky in the Department of Educational Policy Studies and Evaluation.
Frank Fernandez is a faculty member at the University of Wisconsin in the Department of Educational Leadership and Policy Analysis.
