WSU could go down as free-speech villainWSU professor’s lawsuit thrown out by U.S. District Court; could impact universities across the U.S.
Published 11/8/2011Comments (1)
Last June, a U.S. District Court judge threw out my First Amendment lawsuit against four Washington State University administrators.
But do not cry for me, Washington State. Save your tears for WSU and for professors at universities across the west.
If the Ninth Circuit Court of Appeals upholds the judge’s decision and the U.S. Supreme Court lets that decision stand, then WSU earns the ignoble distinction as the university that eliminated free-speech rights for faculty outside of the classroom. In other words, professors and other university employees will no longer be able to criticize administrators and their policies without fear of reprisal. Shared governance – the century-old tradition that universities are managed best with the assistance of faculty and staff, not just administrators – will be dead.
How could this happen at a university whose most famous graduate, broadcast journalist Edward R. Murrow, was a die-hard advocate of the First Amendment? How could WSU, which shamelessly uses “Murrow’s legacy” in its fund-raising campaigns, end up being the institution that killed free-speech rights not only for faculty at WSU, but for faculty at all public universities in Washington, Montana, Idaho, Oregon, California, Nevada and Arizona (and the entire United States if the U.S. Supreme Court weighs in on the case)?
I do not know, but I can tell you what happened.
In November 2010, I (an associate professor in the Murrow College) filed a First Amendment lawsuit claiming administrators gave me low ratings in my annual reviews because I had criticized them and others for incompetence in the management of the Murrow College. I proposed a plan to fix the problems, which included seeking national accreditation. The university ignored the plan.
In response to my lawsuit, the university denied violating my free speech rights and affirmed (again) that it embraced free-speech rights for faculty. However, instead of fighting the case on its merits, the university and its attorneys chose instead to ask the district court judge to throw the case out of court. They argued that professors are employees and, as such, do not deserve free-speech rights (at least outside of the classroom).
The judge agreed.
To back up his ruling, he cited a 2006 U.S. Supreme Court decision (Garcetti v. Cabellos) that supported the authority of a district attorney to deny a promotion to one of his lawyer assistants who reported that police officers had submitted false information to obtain search warrants. That case effectively ended protection for government whistle blowers.
Other cases across the country like mine have generally ended with the courts ruling that faculty do not have First Amendment protection when they criticize administrators outside of the classroom or research lab. This is the case even though the national headquarters of the American Association of University Professors has filed briefs supporting free-speech rights and shared governance for faculty. (AAUP also is filing a brief in my case.)
Sociologists point out that the Garcetti decision (delivered by the court’s five-member conservative majority) may be seen as reinforcing a long-term trend toward centralization of power through bureaucratic organization. Ironically, even my own theory of bureaucracy predicts that as academic institutions become more “corporatized,” they tend to abandon the civil rights ideals laid out by the Enlightenment thinkers, including free speech and democratic processes (shared governance emphasizes both of these principles).
But do not cry for me. No matter how the appeals court rules, I have already won. If the court rules against me, WSU goes down in history as a free-speech villain. If I win at the appeals court level, WSU goes down in history as a free-speech villain that failed.
WSU is in a no-win situation. Indeed, this case – which at worst could eliminate shared governance at all universities and at best generate ill-will among faculty at WSU and other universities – might be the defining moment of President Elson Floyd’s administration.
As I see it, there is only one way the university can get out of this mess. But I will save that for another time.
David Demers is an associate professor of communication at WSU.