- Political Speech Leading to Adverse Action
- Bans on Political Activities and Speech
- Political Associations
While institutions of higher education serve as venues for participation in the marketplace of ideas, college and university officials sometimes restrict or regulate the political activities and speech of faculty members. The legal parameters pertaining to political activities and speech of college and university faculty members typically emerge as an issue of whether individuals’ expression, association, or service qualifies as their rights as citizens to engage in such activities. Because public colleges and universities represent state actors, policies or actions restricting or regulating the political speech or activities of faculty members generally implicate First Amendment issues and other constitutional rights. In order to present the legal parameters pertaining to political speech of faculty, this entry examines U.S. Supreme Court cases elaborating on the legal limits pertaining to adverse actions arising from public faculty speech, controls restraining faculty activities and speech, and limits on faculty political associations.
Political Speech Leading to Adverse Action
At public colleges and universities, political speech of faculty conveys an expression of individuals speaking as citizens. These expressions may include delivering speeches, protesting, publishing editorials, wearing buttons, or displaying signs. In order to evaluate whether faculty speech qualifies for constitutional protections when officials at public institutions take adverse actions based on that speech, the courts generally apply a two-part test.
Matter of Public Concern
The first line of inquiry poses the issue of whether faculty speech qualifies as a matter of legitimate public concern. If so, the expression qualifies as protected speech under the First Amendment. In Pickering v. Board of Education (1968), the Supreme Court established a balancing test between educators’ interests to speak freely as citizens on matters of public concern and their public employers’ interests to promote the efficient performance of the services that they provide. Pickering emerged after a school board dismissed a teacher for writing an editorial in a local newspaper criticizing its dealings regarding a municipal bond proposal. The Court emphasized that public employees enjoy First Amendment rights as citizens, ruling that the teacher’s editorial questioning whether the board managed past funds appropriately and now needed additional resources raised a matter of legitimate public concern worthy of protection under the First Amendment.
When public employees speak on matters of public concern, their speech qualifies for First Amendment protections even if the statements were made not in public settings such as newspapers but in private settings. In the actions that led to Givhan v. Western Line Consolidated School District (1979), a teacher was dismissed primarily for criticizing her school’s policies and practices regarding a desegregation order. As the Court noted, the teacher’s remarks did not deal with matters pertaining strictly to her; rather, her speech questioned the school’s policies and practices, which impact the public and are of public interest. However, unlike Pickering, the teacher in Givhan expressed her comments privately to her principal. Despite that setting, the Court recognized the teacher’s speech still dealt with a matter of public concern warranting First Amendment protection.
More fully, the legal determination of whether speech by public employees qualifies as a matter of public concern requires a review of the content, form, and context of the expression as well as an examination of the entire record. In Connick v. Myers (1983), an assistant district attorney reacted to her office transfer by circulating a questionnaire about office policies, procedures, and morale. Examining the record as a whole, the Supreme Court ruled that except for one survey item, which inquired about whether staff members ever felt pressured to work in political campaigns on behalf of office-supported candidates, the items in the questionnaire did not qualify as matters of public concern. The Court wrote that because the items dealt with an individual employment dispute regarding a transfer policy, they reflected a matter of a personal interest that is typically is not a matter of public concern. The Court thus concluded that the employee lacked constitutional protections as a form of protected political speech.
When public employee speech is made pursuant to the employee’s official duties, it does not rise to a matter of public concern and is generally not protected under the First Amendment. In Garcetti v. Ceballos (2006), after a county prosecutor investigated concerns about an affidavit used to obtain a search warrant, he decided that it contained serious misrepresentations and sent a memorandum to his supervisors regarding his concerns. In the memorandum, the prosecutor also recommended the dismissal of the case. After receiving the information, the supervisor still chose to move forward with the case. The prosecutor spoke publicly about his position regarding the discrepancy in the affidavit. In fact, the defense attorney called the prosecutor as a witness for the defense to testify about his findings regarding the discrepancy. The prosecutor then claimed that due to his expressions about the affidavit, he faced retaliatory employment actions. The Supreme Court noted that the prosecutor’s expressions were based on an employer’s commissioned memo and that he was not acting on his own accord in making his statements. The Court indicated that when public employees speak in furtherance of their job responsibilities, their speech is not protected, because they are speaking as employees rather than citizens.
The general rule is that public employee speech made pursuant to the employee’s official duties is unprotected under the First Amendment. Yet, in dicta in Garcetti, Justice Kennedy, writing for the majority, pointed out that this analysis might not apply to academic scholarship and teaching. He added that faculty members might not fall under traditional public employee speech analysis. While Justice Kennedy’s statements do not represent legal mandates, they likely serve as persuasive legal guides. If so, in evaluating whether the speech of college or university faculty members qualifies as a matter of public concern, courts might inquire as to whether the faculty members’ speech was made pursuant to their official duties, excluding responsibilities connected with teaching or scholarly activities, but covering matters related to administrative and organizational functions within their institutions (Garcetti, 2006). If the answer is yes, because the faculty speech likely falls outside of the scope of a matter of public concern, it is unprotected.
Efficient Governmental Operations
The second line of inquiry asks whether employer interests in regulating faculty members’ speech to avoid disruption in the workplace and maintain institutional efficiency outweigh the free speech rights of faculty members. As the Court has articulated, speech connected with disputes over employment policies, particularly under close working relationships, may rise to the level of disruptive speech; in such cases, public employers may curb such speech in order to fulfill their responsibilities to provide public service. Further, as revealed in Connick v. Myers, deference should be given to supervisors when employees threaten the authority of supervisors to manage the workplace.
Applying a standard of reasonableness, public employers decide the meaning of employee speech and its impact on the workplace. In Waters v. Churchill (1994), when a nurse at a public hospital informed a coworker about problems within her unit while in the break room, another nurse overheard the comments and reported them to their supervisor. The supervisor interviewed other hospital staff who overheard the nurse’s comments in the break room and, based on those findings, terminated her employment. The Supreme Court enunciated two standards reflecting the meaning derived from and the impact of the public employee’s speech. First, the Court addressed the manner of understanding the message that an individual employee sought to convey, noting that this derived from what the employer reasonably believed was stated. This standard establishes a “reasonable manager” to interpret the message. Second, the Court posited that public employment disruption does not have to be actual disruption, that potential disruptiveness is sufficient for a public employer’s interest for efficient operations. The Court posited that the potential disruptiveness of an employee’s speech may render it unprotected in the light of a public employer’s interest in efficient operations, even when no actual disruption has occurred.
In sum, when officials at public colleges or universities take adverse actions against faculty members based on alleged political speech, courts typically apply a two-part test in evaluating whether the speech warrants constitutional protections. First, the court asks whether the speech qualifies as a matter of public concern. Reviewing the record as a whole, courts examine the context, content, and form of the speech to decide whether the expression pertains to a public concern, even if the expression occurred in a private setting. Courts agree that speech addressing personal matters regarding one’s employment situation or matters pursuant to one’s official duties do not pertain to matters of public concern. However, if speech qualifies as a matter of public concern, the second part of the test asks whether the government’s interest in efficient operations outweighs the faculty member’s right to free speech, when such speech actually or potentially disrupts the work environment. If the faculty speech is not disruptive, it likely qualifies for constitutional protections.
Bans on Political Activities and Speech
If a public employee’s expression is summarily barred outside of the workplace, such a penalty may violate the First Amendment. As the Supreme Court ruled in United States v. National Treasury Employees Union (NTEU, 1995), governmental policies on the speech of public employees that involve broad sweeping restrictions entail a greater burden for the government to demonstrate how the policies further its interest in efficient operations. NTEU dealt with a federal law that prohibited federal employees from receiving honoraria for speaking and writing engagements. According to the Court, the law served as a disincentive for federal employees to participate in expressions outside of the workplace on matters potentially of public concern. Insofar as this restriction blocked speech from ever happening, the Court analyzed public employee speech by distinguishing all public employee speech from speech that took place before adverse actions followed. The Court explained that unlike the adverse action cases, the balancing of interests is not simply between public employees and employers. Instead, the Court recognized that the needs and interests of both employees and the government as employer regarding the expression extend to potential audiences as well as current and future employees, on the one hand, and to public employers regarding their interest for efficient operations, on the other hand. Balancing those interests, the Court found that the government failed to demonstrate sufficiently how the ban on compensation furthers its efficient operations as an interest that outweighs the large-scale disincentive to the expressive rights of public employees. In other words, the Court thought that the potential value of the public employees’ expressions to the audience outweighed the government’s interests.
At the same time, governmental officials may restrict public employees from actively engaging in political activities such as lobbying and campaigning at work or engaging in activities that may imply that a public employer is endorsing positions or candidates. In particular, government actors may limit or prohibit faculty members’ political activities that involve public resources or endorsements. The source of law for state employees derives from respective state statutes and regulations. In addition, faculty members at private institutions who are working under special arrangements with the federal government may be classified as federal employees when they work at federal laboratories on campus, such as those that are government owned or contractor operated and held to the statutory guidelines within the Hatch Act. Generally, these laws prohibit the use of public resources such as public funds, the use of employee time during work hours for activities such as making campaign calls, and favoring one candidate or political group by allowing physical resources such as classrooms and auditoriums to be used for political gatherings.
Similarly, governmental actors have no obligation to facilitate programs or systems such as payroll deduction options for political action committees. In Ysursa v. Pocatello Education Association (2009), the Supreme Court declared that a state’s payroll deduction system, which permits deductions for state employee union dues, may prohibit deduction processing for the union’s political action committee. The Court maintained that this prohibition does not limit political speech. Instead, the Court interpreted the state law as simply not promoting public employee speech through political activities.
Finally, governmental actors may indirectly restrict political activities of faculty members at private colleges and universities. Under Section 501(c)(3) of the Internal Revenue Code and its accompanying regulations, in order for private colleges and universities as well as foundations of either public or private institutions to keep their tax-exempt status, these organizations, or the faculty members representing them in their official capacities, may not participate or intervene in political campaigns supporting candidates, engage in substantial propaganda activities, or behave in manners largely reflecting political action organizations.
As the Supreme Court has ruled, absent governmental interests outweighing individuals’ interest to associate freely, public employers, including faculty members at colleges and universities, may not make employment decisions such as hiring, dismissing, transferring, promoting, or rehiring of faculty based solely on organizational associations or allegiances.
The Supreme Court reasoned that mandating political membership as a basis for employment decisions deprives the negatively impacted employees of their First and Fourteenth Amendments of the Constitution. In Elrod v. Burns (1976), a newly elected sheriff replaced non–civil servant employees who were members of the Republican Party with individuals in the Democratic Party. While laws protected civil servants from arbitrary dismissal, legal protections did not exist for public employees who were not civil servants. The Court observed that dismissals based solely on political patronage violate the constitutional rights of the dismissed employees. Moreover, the Court declared that dismissals applied in a “wholesale replacement” manner do not further the efficient operations of government. As the Court acknowledged, the practice of political patronage did not necessarily serve a particular governmental interest as opposed to serving the interest of a political organization. The Court was thus convinced that the government did not demonstrate that staff replacement from political patronage enhanced employee motivation or performance, nor did the practice of political patronage bring in more qualified candidates. Similarly, in Branti v. Finkel (1980), the Court decided that public employment practices that condition political allegiances to particular organizations violate the First Amendment.
The opposite is true, too. The Supreme Court held that mandating nonassociation as the basis for public employment actions deprives negatively impacted employees of their constitutional rights. In Elfbrandt v. Russell (1966), a statute from Arizona placed penalties including those associated with perjury and employment dismissal based on an organizational association. The statute explicitly prohibited association with the Communist Party and other organizations that support the overthrow of government. While subversive activity that could lead to the overthrow of the government qualifies as a legitimate reason to make public employment decisions including hiring and firing, mere membership in an organization that subscribes to those beliefs is not a sufficient ground for basis of a public employment decision. Here the Court conceded that mere membership in an organization does not necessarily translate into all members subscribing to the unlawful beliefs or behaviors of the organization; individuals may not be punished on the basis of membership alone. Consequently, the Court invalidated the statute.
Likewise, placing restrictions on associational activities and political speech that do not clearly convey acceptable and unacceptable behaviors often violates constitutional standards, because such restrictions are overbroad or vague. For example, Keyishian v. Board of Regents (1967) addressed a loyalty oath that was enacted pursuant to a statute from New York that included provisions in which educators would be removed from their jobs if they participated in subversive activities. Pursuant to an internal memorandum to state employees, examples of subversive activities included writing articles, distributing pamphlets, and endorsing speeches made or articles written or acts performed by others whether inside or outside of classrooms. Because these expressive and speech acts are protected for common citizens under the First Amendment as well as within legitimate educational and scholarly applications protected under constitutional interpretations of academic freedom, the Court noted that the loyalty oath impermissibly classified protected speech as prohibited acts.
Finally, public employers may place restrictions based on association when governmental interests prevail. For instance, public employers may prohibit employees’ associational activities if organizations have specific intent to further illegal actions and employees subscribe to those beliefs.
See also Keyishian v. Board of Regents of the University of the State of New York; loyalty oaths
American Association of University Professors. (2001). Statement on professors and political activity. In Policy and document reports (9th ed., pp. 33–34). Washington, DC: Author.
Hogan & Hartson, LLP. (2007). Political campaignrelated activities of and at colleges and universities. Washington, DC: American Council on Education.
Pauken, P. (2005). Faculty speech. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 151–182). Dayton, OH: Education Law Association.
Branti v. Finkel, 445 U.S. 507 (1980).
Connick v. Myers, 461 U.S. 138 (1983).
Elfbrandt v. Russell, 384 U.S. 11 (1966).
Elrod v. Burns, 427 U.S. 347 (1976).
Garcetti v. Ceballos, 547 U.S. 410 (2006).
Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979).
Hatch Act, 15 U.S.C. § 1501 et seq. (2008).
Internal Revenue Code, 26 U.S.C. § 501(c)(3) (2008) and its regulations, 26 C.F.R. §§ 1.501(c)(3)-1(3) (2008).
Keyishian v. Board of Regents, 385 U.S. 589 (1967).
Pickering v. Board of Education, 391 U.S. 563 (1968).
United States v. National Treasury Employees Union, 513 U.S. 454 (1995).
Waters v. Churchill, 511 U.S. 661 (1994).
Ysursa v. Pocatello Education Association, 129 S. Ct. 1093 (2009).