A faculty revolution against free speech

September 2014

“We must do away with all newspapers. A revolution cannot be accomplished with freedom of the press.” - Ernesto "Che" Guevara.

When I first started writing about campus free speech issues for Town Hall in 2003, I complained that most college administrators were ignorant of the constitution. One of my readers, Jim Collins from Colorado Springs, was quick to correct me. Jim pointed out that college administrators aren't just ignorant of the First Amendment. Instead, he insisted that they are hostile towards it. Time has shown just how right he was. In fact, administrative hostility towards the First Amendment has gotten worse since 2003.

Unfortunately, this hostility has spread from the administration to the faculty. In fact, just a few years ago, Dick Veit, our former faculty senate president here at UNCW, joined an administrative effort to punish faculty who dared to criticize the administration in opinion columns written in off-campus forums. This was done under the guise of promoting "collegiality."

The collegiality pretext has been used at other universities. It was first pushed at UNCW by then-Chancellor Rosemary DePaolo. She actually admitted that it was intended to punish me for publicly criticizing the university - for various reasons such as excessive spending on diversity and exorbitantly high salaries for university administrators. Internal emails confirmed that collegiality was being proposed as a device to explicitly punish my constitutionally protected speech.

It is noteworthy that these emails also revealed that Dick Veit was working with the administration to put the collegiality measure in place. Fortunately, when the measure came up for a vote, the junior faculty rebelled and voted it down. Veit later left the senate in frustration over his failed effort to supplement "teaching, research, and service" with a broad "collegiality" factor, which could be used to veto the United States Constitution.

Unfortunately, there are a lot other Dick Veits working in academia. Enter Gabriel Lugo who is a fan of Ernesto "Che" Guevara and is the current faculty senate president at my university. Lugo recently circulated false information on the faculty senate mailing list, which, unfortunately, may embolden senior faculty and administrators inclined to punish junior faculty for speaking out on matters of public concern. This requires a little background information. Please keep reading.

Last year, as our university began to consider revamping promotion polices - like the ones in place when I was denied promotion - Lugo circulated a memo to faculty giving guidelines on academic freedom as it relates to the promotion process. He urged faculty to read two Supreme Court cases, which he claimed were relevant to the issue of free speech. One of those cases was Garcetti v. Ceballos (2006).

In Garcetti, Justice Kennedy wrote a majority opinion, which modified a previous rule regarding free speech and public employment. Previously, the Court said that public employees have a First Amendment right to speak out on matters of public concern without facing retaliation. Garcetti modified the rule saying that this right did not extend to public employees who spoke out on matters of public concern that were also a part of their "official duties."

The rule arose in the case of a public employee, Ceballos, who happened to be a district attorney. But some, including dissenting Justice David Souter, worried that the rule would be applied to professors who have a special role in the public square. In other words, the case was seen as a potential threat to academic freedom. For this reason, Justice Kennedy added a paragraph to the opinion noting that the rule in Garcetti did not specifically address the role of professors. Kennedy, writing for the majority, stated "We need not ... decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."

Enter UNCW. In my recent lawsuit challenging my 2006 promotion denial, the university tried to apply Garcetti to my speech. They specifically argued that the mere mention of the column on my promotion application transformed my private speech into an official duty thus stripping the views expressed in the column of First Amendment protection. In other words, the university claimed a right to punish the speech by denying my promotion.

Gabriel Lugo and the faculty senate were silent while this epic First Amendment battle was brewing. That battle was settled in a 2011 unanimous decision in my favor. In that decision, the 4th Circuit specifically ruled that the Garcetti "official duties" distinction does not apply to university professors. It was a monumental victory for academic freedom.

In January of 2014, the 9th Circuit relied on Adams v. UNCW. They refused to allow a university to apply Garcetti in order to justify suppressing another professor's speech. That victory (in a case originating in Washington State) shows that our victory in the 4th Circuit is now spreading across the entire country. It seems everyone is learning from Adams v. UNCW - except for UNCW Faculty Senate President Gabriel Lugo.

Lugo's insistence that Garcetti still applies to academic promotion cases (remember, he said so in a recent memo) raises some interesting questions. In fact, I have two questions for Lugo and the faculty senate:

  1. Is President Lugo so out of touch that he has never even heard of the 4th Circuit decision in Adams v. UNCW? As a reminder, Lugo teaches at UNCW. In fact, our offices are in the same building.
  2. Or is it the case that Lugo has heard of Adams v. UNCW and has decided to actively mislead the faculty about their rights?

Those are really the only two options. Lugo is either a) completely uninformed about, or b) actively opposed to, academic freedom. Of course, I have my own constitutionally protected opinion of where Lugo, the Peruvian fan of Che Guevara, stands. (Hint: Read the quote at the top of the column).

This battle for campus free speech is not a battle against ignorance of our rights. It is a battle against hostility towards our rights. All of this talk about collegiality is merely intellectual cowardice meant to shield tenured hypocrites from well-deserved criticism.