How Does Intramural Speech Fit Within the First Amendment?

A response to Porter v. North Carolina State University

I noted last month that a Fourth Circuit panel had handed down a divided decision in Porter v. North Carolina State University. The case involved a tenured statistics professor in the college of education who was removed from the program in higher education after a number of complaints he had made about the program becoming too focused on social justice. The Porter panel denied his claim that the speech for which he was being punished was constitutionally protected. Porter is a relatively rare case on "intramural speech," internal faculty speech about matters of university governance and policy, and the decision is an important one in concluding that such speech does not merit constitutional protection.

I have now posted an article-length paper examining the competing arguments in Porter and contending that neither the majority nor the dissent approached the question in the right way. I offer an alternative approach to extending the Supreme Court's doctrine on government employee speech to the particular context of intramural speech by state university professors. From the abstract:

Since the early twentieth century, advocates of academic freedom in the United States have urged universities to tolerate internal dissent and refrain from sanctioning professors for their comments on university affairs. Despite this long history of advocacy, the status of intramural speech within traditional theories and policies regarding academic freedom and within First Amendment doctrine relating to academic freedom remains uncertain at best. Controversies regarding intramural speech are recurring, but there is no clear conceptual framework for how those controversies should be resolved. University officials and judges are often inclined to give little weight to academic freedom interests associated with intramural speech.

This article offers a theoretical and doctrinal approach to integrating intramural speech within the broader logic of academic freedom. Deploying government employee speech doctrine as a useful paradigm for thinking about intramural speech generally, the article argues intramural speech should be viewed as a generally protected form of speech by university professors. The relative weight of the faculty's interest in such speech and of the university's interest in regulating such speech varies, however, depending on how closely associated the speech in question is to academic functions of the university. The weight that should be given to intramural speech is at its zenith when professors engage in campus speech directly related to scholarly and educational enterprise, but it is at its nadir when professors comment on university affairs that are not distinctive to or closely related to the academic mission of the university.

You can read the whole thing here.

Comments

[rloquitur]

"The case involved a tenured statistics professor in the college of education who was removed from the program in higher education after a number of complaints he had made about the program becoming too focused on social justice. The Porter panel denied his claim that the speech for which he was being punished was constitutionally protected. Porter is a relatively rare case on "intramural speech," internal faculty speech about matters of university governance and policy, and the decision is an important one in concluding that such speech does not merit constitutional protection."

Ridiculous. Infecting statistics with SJ stuff is a waste of time. That's a matter of public concern, and he gets to comment on that.

There should be an 18 USC 242 prosecution.

[jimc5499]

"Will someone rid me of this troublesome professor?"

[mydisplayname]

It's an interesting paper; however, zenith and nadir are terms used to describe heavenly bodies and are therefore wholly inappropriate for use with faculty and their speech. [grin] Albedo seems to be a fitting term, as faculty speech is all too frequently a reflection of the educational benefit delivered by the speaking faculty: as the paper notes, in-classroom speech is "subject to the condition that such classroom speech should be germane to the subject matter of the class and professionally competent."

"[T]he Court recognized in Pickering that the state has a legitimate interest as an employer 'in promoting the efficiency of the public services it performs through its employees'," "can take steps to ensure 'the effective and efficient fulfillment of its responsibilities to the public'," and "may 'restrain' an employee who 'begins to do or say things that detract from the agency’s effective operations'." "[T]here might be more occasions in which the Pickering balance would favor the university employer when it comes to on-campus political speech," however, I remain unconvinced this is as narrow a class of cases as the paper suggests.

We agree that "[t]he dangers that collegiality requirements pose to academic freedom are well known." We also agree that "universities and faculty speech have been pulled firmly into the culture" shellacking which has hushed many strident opinions of the Warren Court. Finally, we agree that "Academic freedom encourages the sharing of competing ideas, but it does not require that any of those ideas be embraced."

[ReaderY]

Pickering would seem a poor fit for a robust concept of academic freedom.