Free Speech And Workplace Collegiality

Most institutional decision-makers would no doubt urge that lively discussion among faculty and administrators about a school’s mission and values is essential.

Institutional leaders typically insist, however, that such dialog take place in an atmosphere of collegiality. What is a lively discussion for some may, for others, create a toxic environment that frustrates a school’s effectiveness. If the dialog takes place in a public institution, another factor is introduced: the extent to which that dialog enjoys protection under the First Amendment to the US Constitution.

In Connick v. Myers, the US Supreme Court developed a two-step process for determining whether an employee’s workplace speech is protected by the First Amendment. The first step is a determination of whether the expression in question touches on a matter of public concern; under Connick, that question “must be determined by the content, form, and context of a given statement... ”

This first step is a threshold inquiry; if the speech at issue does not pertain to a matter of public concern, there is no First Amendment protection and, therefore, no need for further review.

If, however, the speech does bear on a matter of public concern, the test then proceeds to the next step: “’a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Whether the expression is protected by the First Amendment depends on how the balance finally tilts.

In Schrier v. University of Colorado, for example, the University terminated the chairmanship of a medical school professor who had taught there for more than twenty years. The professor had voiced his concerns about fiscal and programmatic implications of a decision to relocate the University’s Health Science Center from Denver to nearby Aurora.

The court acknowledged that the subject matter of the professor’s speech--”the potential impact a relocation would have on patient care, education and research”--was indeed a matter of public concern.

But in balancing the University’s interests against the professor’s interest in free expression, the court ruled against the professor, holding that his “protected speech impaired harmony among co-workers, detrimentally impacted close working relationships within the School of Medicine, impaired his performance as department chair, and interfered with the University’s ability to implement” the Center’s relocation.

No doubt many will wonder how the purposes of academic freedom--still a “special concern” of the First Amendment--are served if faculty and other employees fear reprisal for criticizing school policies or practices.

Many who work in the public college or university setting, then, will likely seek greater protection under their institution’s policies rather than from the First Amendment.

Published in the Summer 2006 Edition of In Brief