Judicial Notebook

Academic freedom is generally regarded as one of the cornerstones of higher education. As Justice Brennan noted in Keyishian v. Board of Regents 385 U.S. 589 (1967): "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."

A recent federal court decision, however, has raised serious doubts about the future of academic freedom.

Background on the case

In 1994, Robert A. Brown, a licensed psychologist and professor of counselor education at California University of Pennsylvania, had been a faculty member for 28 years and tenured for 22 years. At the end of the spring 1994 semester, Brown failed a student in a counseling practicum because she had attended only three of 15 classes and had failed to complete basic coursework.

In response, Angelo Armenti, the university president, ordered Brown to change the grade to "Incomplete." When Brown refused he was suspended from teaching the course. Brown wrote a critical review of Armenti for the University Board of Trustees. Two years later, in 1996, the university fired Brown. Brown eventually regained his job through arbitration, but it took nearly two years.

Meanwhile, Brown filed a lawsuit naming Armenti and other university officials as defendants. Brown alleged that he had been dismissed in retaliation for his refusal to change the student's grade and his critical review of Armenti. Among other claims, Brown asserted that in firing him, Armenti had violated his "right to academic free expression" and his "right to free speech" in "violation of the First and Fourteenth Amendments to the United States Constitution."

The U.S. District Court hearing the case dismissed all claims except those against Armenti based upon Brown's asserted right to free expression. The District Court denied Armenti's motion for summary judgment as to these claims, stating "both the plaintiff's criticism of Armenti and the plaintiff's assignment of student grades were protected speech under the First Amendment."

Armenti appealed, asserting that, as a government official (president of a public university), he was immune from being sued for any of Brown's remaining claims. As stated by the U.S. Supreme Court in Harlow v. Fitzgerald 457 U.S. 800 (1982), the doctrine of "qualified immunity" raised by Armenti provides "that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Thus, on appeal, the U.S. Circuit Court of Appeals had to determine whether firing Brown for refusing to change the grade or for criticizing the university president actually violated any of Brown's constitutional rights.

In its April 2001 decision, the Court looked first at Brown's claim regarding the grade and determined that a college professor's grading is not protected by the First Amendment: "Because grading is pedagogic, the assignment of the grade is subsumed under the university's freedom to determine how a course is to be taught. We therefore conclude that a public university professor does not have a First Amendment right to expression via the school's grade assignment procedures."

Next, the Court examined Brown's claim that the critical review of Armenti he prepared for the Board of Trustees was constitutionally protected speech. The Court acknowledged that "Employees of federal and state government do not relinquish their First Amendment rights to comment on matters of public interest as a condition of their government employment." However, the Court concluded, the constitutionality of firing an employee for such comment hinges upon whether it can be "fairly characterized as constituting speech on a matter of public concern." Brown's criticism of Armenti, the Court ultimately held, was not protected by the First Amendment. "Had the plaintiff been reprimanded for speaking regarding, for example, grade inflation, a specific subject about which there is demonstrated interest, he might have satisfied this test. As it stands, the speech alleged reflects little more than one employee's dissatisfaction with an administrative decision by his employer. As such, there would be no public benefit in reporting this matter, and we find no constitutional violation."

Implications

While this decision applies only to public universities and colleges, and has yet to be considered by the U.S. Supreme Court, it should be of great concern to all psychologists, especially those in academia. Should the Court of Appeals decision be affirmed by the U.S. Supreme Court, those who teach in state colleges and universities stand to lose important aspects of academic freedom long taken for granted--the right to assign meaningful grades in a fair and reasonable manner and to critically appraise the work of colleagues and administrators.

Further Reading

"Judicial notebook" is written by the Courtwatch Committee of APA'sDiv. 9 (Society for the Psychological Study of Social Issues). This column seeks to encourage involvement by psychologists in judicial decision-making.