A Loss for Academic Freedom in the Fourth Circuit

Is "intramural" professorial speech protected by the First Amendment?

A panel of the Fourth Circuit handed down a 2-1 decision today in Porter v. Board of Trustees of North Carolina State University. The opinion can be found here.

Porter is a tenured statistics professor in the college of education. He was unhappy with the direction of the higher ed program, with which he was affiliated. In particular, he thought the college and the program had gone woke and was promoting social justice over good scholarship. He expressed those views internally in departmental email and departmental meetings. As a consequence, he was removed from the higher ed program on the grounds that he was insufficiently collegial.

The majority held that professorial speech in department meetings and the like is speech pursuant to their job duties under Garcetti v. Ceballos and does not fall under a narrow exception for research and teaching. As a consequence, such speech is entirely unprotected by the First Amendment and does not even reach the balancing test under Pickering v. Board of Education.

Such examples of intramural speech would be protected under traditional academic freedom principles, but they have not received a great deal of attention by courts under First Amendment analysis. I have been writing about applications of Pickering to professorial speech of late—in the context of teaching and scholarship here and in the context of extramural speech here. This case does not have direct implications for either of those contexts, but it is not a great precedent for robust judicial protection of dissident faculty members at state universities.