Those of us who are dismayed at MIT’s decision to cancel Dorian Abbot’s Carlson Lecture should be no less alarmed by two recently reported abridgments of academic freedom: The University of Florida’s barring three professors from offering expert testimony in a voting rights suit against the State of Florida and Collin College’s firing of a professor, allegedly for her social media criticisms of then-Vice President Mike Pence and of what she saw as the college’s lax handling of the Covid-19 pandemic.
The University of Florida’s stated reasons for barring the professors’ testimony—that the University is a “state actor,” and that as “full-time, paid employees” of a state institution, the professors cannot act in ways adverse to the state’s “executive branch”—is profoundly menacing to academic freedom. As we will discuss in detail soon, this line of reasoning could easily lead to an orthodoxy being imposed on public universities and to the professoriate serving as a de facto mouthpiece for the state. The University’s actions also distort civil justice: By imposing restrictions on the court’s ability to hear from those experts the plaintiffs have chosen, the University has curtailed the capacity of the court to hear information and argument that it needs to resolve the case before it. That’s hardly the course one would expect from an institution dedicated, as the University of Florida avows, to sharing “the benefits of its research and knowledge for the public good.” But as reprehensible as the University’s actions are—actions that unquestionably breach principles of academic freedom— those actions might not be illegal. Commentators have breezily asserted that the University of Florida’s prohibition violates the First Amendment. Alas, given the direction that case law has taken concerning the speech rights of government employees (pre- and, especially, post- Garcetti), it’s in fact an open question whether the University of Florida’s position would be judged unconstitutional.
In a lawsuit filed last week, Lora Burnett alleges that she was fired as a history professor at Collin College, a public community college in Texas, because of her posts on her personal Twitter account disparaging then-Vice President Mike Pence and criticizing what she saw as the inadequate response of Collin College President H. Neil Matkin, and of the college generally, to the Covid-19 pandemic on campus. Right-wing media outlets reported Burnett’s tweets denigrating Pence, and, as a result, Jeff Leach, a Republican member of the Texas House of Representatives texted Matkin, asking if Burnett was “paid with taxpayer dollars.” Matkin, replying to Leach, whom he called “friend,” said that Burnett was “definitely paid with taxpayer dollars” and he promised that he would “deal with it.” Later, Burnett tweeted her concerns regarding what she saw as the college’s underplaying the seriousness of the Covid-19 pandemic. Four months after her anti-Pence tweets, Burnett was fired, news that Rep. Leach, presumably already apprised of Collin College’s decision, had prematurely tweeted as a “BIG WIN.” The reasons Collin College gave for terminating Burnet were “insubordination, making private personal issues public that impair the college’s operations, and personal criticisms of co-workers, supervisors . . .”
If the facts are as Burnett alleges (and as ample documentary evidence in her complaint supports), Collin College acted outrageously. Burnett’s extramural utterances regarding Pence are plainly protected speech, and by terminating Burnett’s employment for those utterances, the College has contravened both the First Amendment and the tenets of academic freedom. Again, though, given the direction of the case law regarding the speech rights of public employees, Burnett’s complaints about the College’s response to the pandemic are unfortunately not as clearly protected by the First Amendment.
The University of Florida’s and Collin College’s actions are egregious affronts to academic freedom. And because academic freedom is crucial to fostering the discovery and transmission of knowledge, those actions are inimical to human flourishing. Nevertheless, it’s sobering that the University of Florida’s actions and Collin College’s reprisal against Burnett’s criticism of workplace conditions might not be unconstitutional. And of course, that a private employer would, in most jurisdictions, be entirely free to fire any employee for any tweets; for holding or espousing any political views; and for voluntarily participating in any way in a civil justice proceeding should give us pause.