Court Ruling Strengthens Universities’ Academic Discretion in Hiring Faculty

An important case addressing the limits of the First Amendment rights of faculty members in connection with a university’s employment decisions was recently issued by the U.S. Court of Appeals for the Second Circuit in New York. Heim v. Daniel, No. 22-1135cv, Aug. 30, 2023.

The case has significant implications for universities, particularly in situations where a hiring decision is based in part on the doctrinal or ideological aspects of a professor’s research and writing.

But at a time when ideological biases – real or imagined – of universities and their faculty members is a politically and socially sensitive topic, the ruling may also have implications for how universities – or their individual departments or professional schools – talk about themselves, internally and externally, and advertise job openings.

The Second Circuit said that the lower court had erred by applying the “Garcetti” test, based on a 2006 U.S. Supreme Court case that had held that public employees generally cannot assert First Amendment claims against their employers for speech associated with their official duties. When deciding Garcetti, the Second Circuit observed, the Supreme Court had expressly left open the question of whether the rule would apply in an academic setting, where faculty members (unlike typical government employees) have academic freedom and a degree of independence different from the typical environment of a government agency.

The Second Circuit concluded that Heim and other faculty members do, in fact, have First Amendment rights associated with their writing and research, and noted a variety of ways in which they are protected. But, it concluded, those rights are overcome by “the need to safeguard universities’ self-determination over the substance of the education they provide” – a principle equally rooted in the First Amendment. Indeed, the court noted, such “content-based judgments” are normally “anathema” to the First Amendment but are in this setting unavoidable:

“If the Supreme Court’s (and this Court’s) enthusiastic endorsement of the First Amendment principles supporting a university’s academic freedom is to be given any practical bite, decision-makers within a university must be permitted to consider the content of an aspiring faculty member’s academic speech, and to make judgments informed by their own scholarly views, when making academic appointments.”

 

Nevertheless, at least within the Second Circuit, what are its implications for what institutions or their units can say when describing themselves, or making hiring and retention decisions of their faculty? Certainly it clarifies that they can be explicit about a desire to maintain a particular doctrinal, ideological, or methodological orthodoxy if they choose to do so. That freedom would appear to extend to the way they describe themselves in public, such as on websites, and the way they announce job openings and describe qualifications for candidates.

But what are the limits of that safety zone? The court strongly suggested that it won’t be as deferential if there is evidence that the decision was influenced by outside pressure, citing a previous decision that used the phrase “permissible academic reasons, and emphasizing that in its decision regarding Heim there was no indication that the explanation for his rejection “was really a pretextual veil to ‘obscure discrimination,’ or a cudgel to stamp out controversial or dissenting viewpoints, or some other mechanism to advance the views of non-academic public officials.” In light of recent developments in a number of states, particularly Florida, the phrase “non-academic public officials” may take on particular importance.

More questions are likely to arise: Does the rationale in Heim extend to in-class speech involving direct interaction with students (as distinct from writing and research, which may not)? How closely related to the faculty member’s (and the department’s) research work must the speech at issue be, and how homogeneous must the department already be for a court to view the basis for the employment decision as non-pretextual?

In the current political climate, will the result be different if the faculty member’s research touches on hot topics like abortion, diversity, or pedophilia? Even if the university’s decisionmaking is legally protected, it may be open to intense criticism for from either the right or left, depending on the subject matter.

Ultimately, the Second Circuit has said that universities can enforce doctrinal orthodoxy, not that they necessarily should:

“Certainly, evaluators with subject matter expertise may miss the mark. Innovative thinkers may be discounted by proponents of conventional, but ultimately mistaken, views. Conversely, departments in thrall to fashionable ideas may deride as ‘old- fashioned’ scholars who, in time, are proven to have been correct all along. Work that builds upon premises that the evaluator rejects may be dismissed out-of- hand as less valuable regardless of that work’s quality in its own right, and regardless of whether, in the long run, it is the evaluator’s predisposition or the rejected premise that prevails.”

 

Still, the court said, even if those experts turn out to be wrong, “it is a wrong that we cannot right.”