Academic

Krell on Freedom of Speech & Academic Freedom

By Lawrence Solum

Reid Krell (University of Alabama - School of Law) has posted The Ivory Tower Under Siege: The First Amendment's Ability to Protect Academic Freedom on SSRN.  Here is the abstract:

n Garcetti v. Ceballos, the Supreme Court held that public employees who speak within the scope of their jobs are not protected by the Pickering balancing test. The Court reserved the issue of whether academics, who may make controversial speech within the course of their academic work and suffer retaliation, are subject to the Garcetti rule. This paper outlines the current thinking of how the various academic freedom claims within the First Amendment play out, and then offers a new way to resolve such a case. The First Amendment defines the contours of the professor's claim, but it is the Contract Clause that animates the claim. Essentially, what the university is asking for is authority to breach the employment agreement because the professor was in compliance with the employment agreement. Judicial sanction of such an action eviscerates contract unconstitutionally.

Full post as published by Legal Theory Blog on December 30, 2008 (boomark / email).