An analysis of 50 years worth of academic-freedom cases finds that faculty don't fare well when fighting against public colleges and universities. In fact, professors and instructors up against these entities are likely to lose nearly three-quarters of the time.
The study, published in the Journal of College and University Law, was conducted by University of Illinois law professor Michael LeRoy. It analyzed American disputes over the speech rights of academics that took place between 1964 and 2014 and involved a public college or university—a total of 214 (state and federal) cases.
In 73 percent of them, the school administration won.
"If you look at the trend lines, the speech rights of public employees are narrowing—and, coincidentally, this is occurring when public speech via social media has become so much more prevalent," LeRoy said. Not coincidentally, the number of wins for schools picked up in the wake of several specific U.S. Supreme Court decisions.
Per the 1968 Supreme Court ruling in Pickering v. Board of Education, courts were instructed to weight "the competing interests of public employees and employers on a case-by-case basis," noted LeRoy. The court held that "public employees do not relinquish their First Amendment rights on the job," but "a government employer [can] regulate the speech of its employees differently from citizens." This was the first tipping point toward broader permissability for censoring academic speech.
"As the data from my study show, courts usually weigh those interests in favor of universities and colleges," LeRoy said.
Then, in 1994, the Supreme Court ruled that school administrators could limit student or staff speech that they deem "disruptive" (Waters v. Churchill). "In the first court rulings after Waters, the faculty win-rate plummeted from 22.6 percent to 13.1 percent, and in appellate rulings, the rate dropped even more precipitously, from 14.5 percent to 3.3 percent," according to LeRoy's analysis.
Some federal appeals courts have been better than others at protecting professors' speech rights. The U.S. Court of Appeals for the 2nd Circuit—an area that includes New York, Connecticut, and Vermont—ruled in favor of schools in just 63.6 percent of its cases. Meanwhile, the Illinois, Indiana, and Wisconsin-spanning 7th Circuit sided with colleges or universities 88.9 percent of the time.
LeRoy thinks the study shows the need for higher-education faculty to push for contractual assurances of free expression and passing institution-wide academic bills of rights. "If nothing else," he said, "my research shows that the alternative to these proactive measures are court rulings that treat higher education more like a government agency" than "a laboratory of thought, experimentation and speech."