A ruling against free speech on campus

LORETTA CAPEHEART, a professor of Justice Studies at Northeastern Illinois University (NEIU), has long been an outspoken advocate for union rights, diversity and peace at her school.

In 2007, she was elected to chair her department by a two-thirds majority of her colleagues, yet the university refused to appoint her to the post and even went so far as to put the department into receivership and install a representative of the administration as chair. Capeheart was also denied merited awards during this time.

It became clear that the NEIU administration had targeted Capeheart for her outspokenness for workers' rights, against the Iraq War, and for increased representation of minority scholars at NEIU. An activist in her union (University Professionals of Illinois-AFT/IFT), Capeheart was a leader in the 2004 faculty strike.

In 2006, she testified in a meeting of the Latino Caucus of the state legislature on the need to recruit greater numbers of Latino/a faculty, contradicting and infuriating Provost Lawrence Frank, who was in attendance.

In February 2007, she defended students in the antiwar movement who were arrested during a protest of a CIA recruitment event on campus. This controversy led NEIU President Sharon Hahs to propose a campus events policy (subsequently withdrawn) imposing draconian and unconstitutional restrictions on freedom of speech and assembly on the campus.

When Capeheart spoke up at a faculty council meeting to question the treatment of the student activists, NEIU Vice President Melvin Terrell lashed out at her, stating that Capeheart was a "person of interest" to the police, and that a student had filed charges of stalking against her.

These defamatory statements were completely unfounded. But the threat against Capeheart--that if she continued to speak out, she and her career would be targets for retribution--remains very real.

"Stalking is a criminal offense," she said. "I lived in continual fear that someone would come to arrest me in my class, and that I would lose my job. The message was that if I continued to speak they would come after me." To date, Terrell has not retracted his accusations.

Capeheart has sued Terrell for defamation, alongside Hahs and Provost Lawrence Frank for violation of her constitutional right to free speech and retaliation against her. She is seeking an injunction against further violations, her rightful appointment as chair and, from Terrell, monetary damages for harm resulting from his defamation of her.

Incredibly, the administrators' response argues that Capeheart, as a state employee, may not sue the university or its officials, contravene their positions, question their conduct or speak as a faculty member on matters of public concern.

Their motion to dismiss the case states that "clothed in her authority as a faculty member," Capeheart criticized university policy, "even going so far as to disagree with the stated positions of the Provost." At the same time, the administration contends that it has the right to say whatever it wants against an employee, even if it amounts to defamation.

IN FEBRUARY 2011, we received unsettling news in the case.

With the backing of the American Association of University Professors (AAUP), Capeheart's case went into the "summary judgment" phase in U.S. District Court in fall 2010. The NEIU administration sought a judgment to dismiss the case based on the 2006 Garcetti v. Ceballos U.S. Supreme Court decision. The administration also claimed that there was no retaliation against Capeheart.

On February 14, the court sided with the administration and dismissed the federal claim for violation of free speech; the judge dismissed the rest of the case as non-federal in nature. The judge claimed that Capeheart's activities and speech against the war and her defense of activist students were part of her faculty duties.

This argument is nonsense, and it is frightening. If a professor's activism can be claimed as part of her professional duties, and if speaking out against her employer is ruled out of bounds during her official duties (which is the essence of the Garcetti ruling), then any activism that challenges a university administration can be cause for disciplinary action.

In 2006, in Garcetti v. Ceballos, the Supreme Court ruled that the Los Angeles district attorney's office had the right to discipline a deputy for criticizing his supervisor's actions. They argued that when public employees speak "pursuant to their official duties, [they] are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

While the court made certain exceptions for academic employees and "speech related to scholarship and teaching," lower courts have disregarded this warning and are now threatening to erode constitutional protections afforded faculty at public universities.

In 2007, for instance, a district judge ruled in Hong v. Grant that a university is "entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities." (This case has been appealed to the 9th Circuit Court).

These two rulings together have made it possible for the administration at NEIU to sanction Professor Capeheart for exercising her constitutional and academic rights.

In Capeheart's case, Federal Judge Blanche Manning justified her dismissal of the case with this argument:

When the plaintiff is a government employee, her speech made pursuant to her professional responsibilities is not protected by the First Amendment. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

Thus, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline"...The allegations of the complaint and the evidence identified by the parties establishes that the speech at issue was made pursuant to Capeheart's professional responsibilities.

THE IMPLICATIONS of this decision are grave. Even if we assume (as some have) that these decisions do not limit scholarship, they severely limit independent faculty participation in anything like "shared governance."

Further, in the context of economic constraints and budget cuts, if faculty members are not allowed to speak about or criticize the process by which long-term changes to the university are implemented, or about their rights as employees, there will be profound implications for the quality of higher education and job security.

When the question extends to the right to organize unions, challenge low levels of minority recruitment, critique skyrocketing tuition or demand the oversight of university endowments, the line between issues of "public concern" and those that are "pursuant to official duties" is hopelessly blurred.

Few legal protections are available to faculty members who have the audacity to question the decisions being made in ever-remote halls.

In this moment of heightened activism on and off campuses across the country, activist students and professors are increasingly at risk. The pressure put on critical researchers and teachers (such as that launched by Glenn Beck against Frances Fox Piven) in right-wing media creates a climate for persecution.

Pundits like Beck and David Horowitz have met with some success in establishing a definition of academic freedom as neutrality, and arguing that politics should have no place in an academic's professional domain. This argument exhibits the same reasoning as Garcetti, and it indirectly warrants targeting area studies and progressive centers (for example, women's and gender studies, African American studies and so on) on our campuses for deep cuts in the current fiscal crisis.

In this context, Loretta Capeheart's case is of pivotal importance. Her legal counsel, Tom Rosenwein, has filed an appeal of Judge Manning's decision to the 7th Circuit Court.