Brooklyn Law Review


Mark Strasser


While the U. S. Supreme Court long ago recognized that individuals do not lose their free speech rights simply by virtue of being state employees, the contours of their First Amendment protections have been evolving over the past several decades. The proper way to apply these protections in the academic context is confusing, especially after Garcetti v. Ceballos in which the Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens. The circuit courts have adopted a dizzying set of rules to determine when First Amendment protections are triggered in the academic context, some distinguishing between the protections afforded to college professors and the protections afforded to primary and secondary school teachers and others distinguishing based on whether the expression is appropriately characterized as teaching, scholarship or, instead, something else. Still others offer a different approach. Even when the Garcetti exception is not triggered, the circuits offer very different interpretations of how to apply the prevailing jurisprudence. Until the Court offers greater guidance, we can only expect the circuits to continue to treat relevantly similar cases differently, to diverge with respect to what academic freedom includes, and to put the benefits accrued from the recognition of academic freedom at risk.