Academic and Employment Retaliation

The government may not retaliate against citizens and government employees for exercising First Amendment liberties by “impos[ing] burdens on [them] in order to discourage or punish them from exercising protected constitutional rights.”³⁸  This basic freedom is implicit in the First Amendment, as the U.S. Supreme Court has stated that First Amendment liberties—such as the freedoms of speech and association—must receive expansive protection because they are “delicate and vulnerable.”³⁹  Accordingly, the government is forbidden not only from directly prohibiting expressive activities, but also from  taking actions that tend to “chill” such activities.⁴⁰  Forbidden government actions can include investigations, threats, sanctions, harassment, bad grades or evaluations, denials of benefits, or virtually any action designed to punish a citizen for exercising constitutional freedoms.⁴¹  And the danger these actions present to constitutional liberties is “especially real in the [u]niversity setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.”⁴²

The extent of protection provided to persons depends in large part on whether that person is a private citizen or a public employee. Private citizens—students on public university campuses—have the greatest breadth of protection because the government has virtually no legitimate interest in repressing their expression.⁴³  So, in the university setting, you may study, inquire, research, form organizations, and publicly express opinions on virtually any topic of human interest without fear of retaliation from the academic institution. Indeed, from a legal perspective, you enjoy the full breadth of liberty provided by the Constitution. A public university that ignores this fact and even subtly seeks to discourage students from exercising their rights risks a federal lawsuit.

If you are a public employee, the protection afforded to your speech, however, requires a balancing of your First Amendment rights with the government’s legitimate interests as an employer.⁴⁴  So a as university faculty or staff member, you are protected from employment retaliation—as long as you speak as a private citizen on matters of public concern.⁴⁵  Such expression will generally meet this requirement if it can fairly be characterized as relating to any “matter of political, social, or other concern to the community,”⁴⁶  as opposed to speech that is purely of “personal concern.”⁴⁷  Also, the location of the speech should not affect whether you are speaking on a matter of public concern.⁴⁸  Although this standard is not crystal clear, it is apparent that public employers may not punish university employees for criticizing a public school’s performance of its governmental responsibilities or for revealing official wrongdoing,⁴⁹  but it may discipline such employees for “personnel grievance[s].”⁵⁰

Additionally, although largely undefined, the Supreme Court has, on several occasions, confirmed the existence of a corollary right to “academic freedom.”  It summarized this freedom best in a landmark 1967 decision:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the marketplace of ideas.  The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection.⁵¹

In short, the First Amendment provides expansive protection to you as members of the university community to speak, study, teach, associate, and inquire. With such protection present, you —like Thomas Jefferson— should be able to say with confidence:  [H]ere we are not afraid to follow truth, wherever it may lead. . .”⁵²