Garcetti in Higher Education? Not So Fast

Scales-red Thanks to Dennis Nolan (South Carolina) for bringing to my attention this decision from California discussing whether the Garcetti First Amendment free speech case applies in the higher education context.  Garcetti held that public employees speaking pursuant to their job duties have no First Amendment free speech protection.

F.I.R.E. (Foundation for Individual Rights in Education) has this article on Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009):

[I]t is heartening to report that a federal court in California has rejected a community college district’s attempt to apply Garcetti to strip a professor of First Amendment protection for her classroom speech. In Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009), the federal district court ruled, contrary to the college district’s argument, that the professor, June Sheldon, did not lose her First Amendment rights merely because her speech took place during classroom instruction. Sheldon lost her adjunct science teaching position at San Jose City College as well as the opportunity to teach courses the next semester following remarks she made to her class about the “nature versus nurture” debate with regard to why some people are homosexuals. Though her comments were part of a class discussion about the topic, some students complained that the way she embraced the “nurture” side of the argument was offensive, leading the college to take the adverse employment actions against her. (FIRE took up Sheldon’s case in 2008.)

In Sheldon’s subsequent suit under 42 U.S.C. 1983 (a federal statute providing a cause of action for the vindication of federal constitutional and statutory rights), the federal court rejected the college’s argument, based on Garcetti, in favor of dismissing Sheldon’s First Amendment claims altogether. Crucially, the court observed that “Garcetti by its express terms does not address the context squarely presented here: the First Amendment’s application to teaching-related speech. For that reason, defendants’ heavy reliance on Garcetti is misplaced.” The court opined that the “precise contours” of the First Amendment’s reach in this context are “ill-defined and are not easily determined at the motion to dismiss stage.”

I think both from a precedential standpoint and a policy standpoint this decision is on the way to the right result.  First, Garcetti expressly chose not to rule on whether its ruling applied in the academic context.  Second, Supreme Court cases as far back as the 1950s have emphasized the need for academic freedom, including the right to freely say what one thinks in the classroom environment.

To be sure, this decision just gets the case by a motion to dismiss, but I agree that it is heartening that the court might treat academic public employment different from other forms of public employment suffering under the holding of Garcetti.

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New Study Adds to the Debate Surrounding Ideological Divides and the United States Supreme Court

Democrats Republicans boxingThe New York Times published an article detailing the results of a new study regarding the career paths of former United States Supreme Court clerks.  The study finds that “former clerks have started to take jobs that reflect the ideologies of the justices for whom they worked.”  The data collected show a shift in the career paths of clerks hired from 1990 and on:

 Until about 1990, the study shows, there was no particular correlation between a justice’s ideological leanings and what his or her clerks did with their lives.

 Clerks from conservative chambers are now less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones. Even law firm hiring splits along ideological lines.

It is no secret that the justices have shown a greater propensity to hire clerks that share their ideological beliefs (as the article and previous studies explain).  Yet this newest study, which focuses on life post-clerkship, has alarmed those already worried about the strong ideological splits on the Court.  Says law professor William Nelson of NYU, “It’s cause for concern mainly because it’s a further piece of evidence of the polarization of the court.”

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Incarceration Nation

PrisonDespite the increasingly audible calls for changes in policy, we should not lose sight of the extent and nature of imprisonment in the United States.  As of 1975, only .01% of the population was imprisoned, but the percentage has grown every year since then and now stands at almost .05%.  We as a nation have the dubious distinction of reporting the highest per capita imprisonment figure in the world.  What’s more, American prisons are no longer geared to rehabilitating inmates.  Instead of educating and training inmates, prisons for the most part simply warehouse them.

These developments do not derive from increases in crime or from the widespread commission of more serious crimes.  Instead, the increase in the number of inmates and the use of warehouse-style incarceration are attributable to such policies as quicker revocation of probation and parole, mandatory sentences for certain crimes, three strikes legislation, and truth-in- sentencing laws.  Often, these policies come into play for drug-related offenses and are part of the larger “war on drugs.”

Noam Chomsky contends, “In the United States the drug war is basically a technique for containing populations internal to the country and doesn’t have much to do with drugs.”  Chomsky has in mind the urban underclass, which is disproportionately but not exclusively made up of members of minority groups.  Middle and upper class Americans have come to see the underclass as dangerous and almost inherently criminal and are comfortable with warehousing larger and larger numbers in order to maintain social control.  Chomsky suggests the contemporary imprisoning of large numbers of poor men and women is an American variety of “social cleansing.”

As harsh as Chomsky’s comments might seem, law professor Jonathan Simon might take the critique one step further.  In his book Poor Discipline, Simon argues that mainstream Americans perceive inmates as a type of “toxic waste” and take those who run our jails, prisons, and penitentiaries to have the nasty task of “waste management.”  How troubling is to see our nation traveling down this fundamentally dehumanizing path.

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