Protecting Faculty Speech after Garcetti v. Ceballos

In the course of a week, a public university professor might write a proposal for flexible work hours, sign a petition supporting adjuncts, or speak up at a meeting on equity and inclusion. The professor could face disciplinary action for any one of those statements because they are not protected by the First Amendment.

In the 2006 case Garcetti v. Ceballos, the Supreme Court held that the First Amendment does not apply to statements made by public employees in the course of their professional duties. The case has serious consequences for those working in public higher education. As Justice David Souter wrote in dissent, “This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor.” Since Garcetti, three lower-court cases (Hong v. Grant [2007], Renken v. Gregory [2008], and Gorum v. Sessoms [2009]) have also ruled that faculty members can face disciplinary actions for statements made in the course of their professional duties.

Garcetti ensures that public university employees who speak up—in publications or at faculty meetings—do so at their own peril. The decision invites a chilling effect, not only on academic scholarship but on workforce activism.  At a time when many public universities face financial challenges, faculty members who offer informed input on how to manage pay cuts or layoffs could face administrative retaliation.

In a 2009 statement on Garcetti  v. Ceballos, the MLA recommended that faculty members at public universities and colleges revisit and, if necessary, revise their faculty handbooks to directly address Garcetti’s challenge to speech relating to official duties. Recognizing that faculty handbooks frequently do not have the force of law, the MLA nevertheless urges all public universities and colleges to reaffirm the right of their faculty members to speak on matters of public concern without fear of retaliation.