Public colleges have the right to reject professor if they disagree with their academic specialty

The Court of Appeals has issued a major ruling on the First Amendment and a public university's decision not to promote a professor because of his political/economic opinions. Balancing the competing speech interests of the parties, the Court finds that SUNY Albany cannot be sued for denying an economics professor a position because his economic theories were not in line with the University's philosophy. 

The case is Heim v. Daniel, issued on August 30. Heim wanted a tenure-track academic position in the University's economics department. He is a Keynesian economics expert (basically a New Dealer), but the department had a different view of economics that did not comport with Heim's philosophy. The decisionmakers essentially admitted this is why Heim was not offered the position. He sued under the First Amendment because his political/economic views were held against him. Under normal circumstances, plaintiff would have a great case. But this case involves competing interests: the plaintiff's First Amendment interests in promoting his views, and the public college's interests in charting its own intellectual course in educating its students. 

The first issue for the Court of Appeals (Lynch, Lee and Perez) is whether this is a Garcetti case. The Supreme Court issued Garcetti v. Ceballos in 2006, narrowing the means by which public employees could sue for free speech violations and holding that speech pursuant to job duties is not protected and is thus not citizen speech. Of course, a college professor's classroom speech is pursuant to his job duties, which is why the Garcetti court expressly set aside determining whether such speech falls into the Garcetti exception. The Second Circuit holds that a public college professors' speech does not fit within the Garcetti framework because that would overlook the Supreme Court's longstanding commitment to academic freedom, which grants professors the freedom to teach concepts and ideas as they see fit. A professor's speech is "anything but speech by an ordinary government employee," the Court says. 

So Heim's case resolves that issue for all public college professors in the Second Circuit. But that does not win him the case. He still has to show that his classroom speech touched upon a matter of public concern, another requirement for winning a free speech case against a public employer. The district court said plaintiff's speech did not address a matter of public concern, because the arcane subject area that Heim specialized in is not really something the public would care about. But that reasoning is incorrect, the Court of Appeals said, because plaintiff's scholarship is of value to the public. The public may not care about Heim's work, but his work "addresses matters that concern the public. That inquiry measures neither popularity nor technical complexity." Economic theory ultimately is a matter of public concern.

Ultimately, the Court has to balance Heim's interests with those of the University. SUNY Albany has a constitutional interest in furthering its own mission, the Court says. That means it has the right to decide what its economic department will look like, and whether its professors will largely promote one economic theory over another such that Heim's theory would not fall within that equation. Framing the issue that way, it is clear why Heim will lose the appeal. The University wins the appeal for the following reasons:

Because the Department’s desire both for collaborative synergies and for publication clout go hand-in-hand with its methodological preferences, they invite decision-makers to evaluate candidates through exactly the sort of “content-based judgment[s]” that are normally “anathema to the First Amendment.” But academia is not normal; it is “unique.” In this exceptional setting, . . . such justifications are “permissible academic reasons” for declining to hire or promote a candidate. In the “special niche” that academia occupies, such judgments are “both necessary and appropriate.”