By Greg Lukianoff and Ari Cohn
The Foundation for Individual Rights in Education (FIRE) receives countless requests from professors claiming that they’ve suffered in hiring and promotion because of their political or personal viewpoints. These cases are notoriously hard to prove and to win–and that’s why University of North Carolina-Wilmington professor Dr. Mike Adams’ court victory this month is so important.
FIRE first became acquainted with Adams in 2001, when he came to us for help after UNCW conducted an egregiously misguided investigation of his personal email. The university launched the investigation after he criticized a student who, just days after the attacks, mass-emailed a missive sympathetic to the 9/11 terrorists. Despite this ordeal, Adams carried on at UNCW, performing at a high level. He continued to publish in peer-reviewed journals, amassing 11 publications in 12 years, and he had won multiple “Faculty Member of the Year” awards.
Turning Against a Conservative Professor
Simultaneously, Adams became a prominent conservative firebrand, writing national columns on social, political, and academic issues for outlets such as TownHall.com. In that vein, Adams authored Welcome to the Ivory Tower of Babel: Confessions of a Conservative College Professor, which served up an unapologetically partisan critique of the academy based on his personal experiences. Unsurprisingly, many colleagues, administrators, and donors had strongly negative reactions to Adams’ outspoken beliefs.
In 2006, Adams applied for a promotion to full professor. In assembling his application for consideration, Adams supplemented his scholarly writing with his external work as a columnist, his published books, and his radio and television appearances.
Adams’ application for promotion was denied, and he was given no explanation of the reasoning. When pressed, the department chair provided several varying, unsatisfying explanations about vague concerns regarding the strength of his record of scholarly publication. Suspicious that negative reactions to his outspoken public persona were really the reason, Adams filed a lawsuit in 2007 alleging that UNCW had unconstitutionally retaliated against him for exercising his First Amendment rights.
Looking for the Smoking Gun
Many of us at FIRE were initially worried about Adams’ chances. We weren’t skeptical that UNCW had, in denying his promotion, once again trampled on his constitutionally protected speech rights. That was all too believable. But we had seen time and again that such allegations can be difficult to prove. In order to succeed, Adams would have to prove that disfavor for his viewpoint was a substantial factor in the decision to deny his promotion–and administrators are of course careful not to admit outright that they are basing their decision on the professor’s views. Instead, the retaliatory action is typically couched in subjective judgments of “collegiality,” like in the attempt to deny Professor KC Johnson promotion at Brooklyn College in 2002.
Rarely is the evidence as clear as it was, for example, in the 2006 case of Professor Stephen Kershnar at the State University of New York-Fredonia. Like Adams, Kershnar performed at a high level, securing numerous publications and winning awards for his teaching. Also like Adams, Kershnar was outspoken, often criticizing policies and practices at SUNY Fredonia in columns in the local paper. Kershnar’s promotion to full professor was blocked by SUNY Fredonia President Dennis Hefner, who made no attempt to disguise the fact that he did so because he believed Kershnar had “impugned the reputation of SUNY Fredonia.” Within the FIRE office, we referred to that signed letter from the president explicitly admitting to the viewpoint discrimination as the smokiest smoking gun we’d ever seen in a promotions case.
Adams did not have the benefit of a letter outlining the content of his speech as the explicit reason for denial of his promotion application. In fact, Adams’ department chair did everything she could to put as little of her reasoning in writing as possible. As the federal district court detailed in its 2010 order granting the defendants’ motion for summary judgment, concerns about his columns (expressly noting their “offensiveness”) were couched in phrases that sought to convey a vague legitimacy, such as “not demonstrat[ing] a cumulative tangible pattern of expertise.” Adams’ record of service to the school and profession were simply deemed “insufficient.” Without a smoking gun, such slippery reasons for denying promotion are difficult to disprove, presenting a major hurdle for professors, like Adams, who allege viewpoint discrimination.
What makes Adams’ case exceptional, then, is that even without an outright admission of viewpoint-based discrimination by his supervisors, a federal jury (made up of people who, unlike FIRE, are not immersed in the culture of academia) was able to discern that there was something awfully suspicious about the university’s disregard for its own promotion standards and its concerted campaign to diminish Adams’ academic accomplishments. They were able to connect the dots when presented with evidence that university officials ignored established standards and guidelines for promotions and forwarded misinformation about his academic record.
The Courts Side with Free Speech
FIRE had other legal concerns about Adams’s case, including one decision from the highest court of the land. At the time Adams filed his lawsuit in April 2007, the Supreme Court had recently decided the landmark case of Garcetti v. Ceballos (2006), in which it held that a government employer does not violate the First Amendment by punishing employee speech made “pursuant to official duties.” Academics, commentators, and civil liberties organizations were quick to point out that such a holding would be devastating if applied to academics, who are hired particularly to explore new, and often controversial, ideas. The Court anticipated this potentially harmful outcome, and Justice Kennedy’s majority opinion explicitly declined to decide whether its ruling would apply to university faculty members engaged in scholarship and teaching.
Unfortunately, in the years following Garcetti, some courts have ignored this caveat in the opinion, leading to a several troubling courtroom losses for faculty members filing First Amendment retaliation claims. Indeed, the federal district court initially threw out Adams’ case, citing Garcetti. We at FIRE held our breath, fearing that in seeking to establish the exception alluded to in the Garcetti opinion, the lawsuit may have inadvertently ended up cementing its power to suppress academic freedom. FIRE filed an amicus curiae brief alongside the American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression, arguing against the extension of Garcetti and for Adams’ academic freedom.
To our relief, the Fourth Circuit reversed on appeal in 2011, striking the first major blow against the application of Garcetti to academic speech of college professors. While, as our brief noted, trial courts in various jurisdictions had declined to apply Garcetti to academic speech (and the Fourth Circuit had earlier followed suit in a high school teacher’s case), this was the first precedential ruling expressly excepting professors’ academic speech from the stranglehold of Garcetti. The court understood that professors are generally expected to provide such commentary and writing in their role as academics, and noted that–if applied to academics–Garcetti could preclude First Amendment protection from anything related to their function as professors, a perverse result that would turn academic freedom on its head. The Fourth Circuit ruling was a crucial step in putting the Garcetti genie back in the bottle, on campus at least.
Though there is a tangle of conflicting decisions in the lower courts as to Garcetti‘s applicability to the scholarly work of university faculty members, the tide may be turning. The Ninth Circuit recently joined the Fourth Circuit in refusing to apply Garcetti to faculty speech, holding that the unique concerns of academic freedom require that speech related to scholarship or teaching be accorded full First Amendment protection despite falling under the general duties of a professor. Thisgrowing split between federal appeals courts increases the likelihood that the Supreme Court will step through the door it left open and determine to what extent academic speech retains its First Amendment protection in the post-Garcetti world.
For the moment, however, we are happy to celebrate this victory for academic freedom. The deck was stacked against Mike Adams, and this verdict should send a clear warning to those who would attempt to stifle diversity of thought and erode the marketplace of ideas on campus. While threats to campus liberties will not disappear simply because of this case, each victory adds momentum and provides a welcome boost to those of us battling on the front lines.
Greg Lukianoff is the president of FIRE and the author of Unlearning Liberty: Campus Censorship and the End of American Debate. Ari Cohn is an attorney and a Program Officer at FIRE.
(Photo: Professor Mike Adams. Credit: ADF.)