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PaperclipPerfector  9mo ago (text post)   31425 thread views

Culture War Roundup for the week of July 10, 2023

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Sorry to do two posts back to back, but the Fourth Circuit has dropped a steaming pile of dog shit on my front porch and I'm kind of mad about it. (Is that too heated? Honestly I feel like I'm soft pedaling it.)

Porter v. Board of Trustees of North Carolina State University is a case on academic freedom and speech by government employees. Stephen Porter was a tenured professor of education in the university's "higher ed" program. His statistical research on higher education has dealt at times with questions of faculty and student body demography. After complaining that

NC State’s diversity initiatives resulted in “abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion’”

he found himself removed from the higher ed program for being "insufficiently collegial." He sued. And now, barring a reversal by SCOTUS, he has lost. More from the article:

In the 2006 case Garcetti v. Ceballos, the Supreme Court held that when government employees speak “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.” But, critically, Garcetti made an exception for faculty at public institutions engaged in “speech related to scholarship or teaching.”

The Fourth Circuit’s decision considerably narrows this exception, effectively placing faculty speech about shared institutional governance and decision-making beyond the First Amendment. The court reasoned that Porter did not speak as an academic, but rather “in his capacity as an employee,” concluding Porter’s speech “was not a product of his teaching or scholarship” and is, therefore, “unprotected.”

This analysis suggests that the Fourth Circuit has quite perplexingly decided that "intramural" speech does not qualify for the Garcetti academic exception. Essentially, in the Fourth Circuit, academic freedom apparently extends to lectures and publications, but not "when professors speak and write as citizens of the campus community and officers of an educational institution." This is an especially awkward position, however, when the professor in question teaches and researches higher education specifically. Imagine being free to make assertions about higher education policy in the classroom and in your writing, but not being free to repeat those things at a faculty meeting, or to university administrators! The author also notes that this may reflect a circuit split with the Ninth, which is good news for any planned appeal.

But the age of that split (the Ninth Circuit case was decided in 1976) also highlights how much the American Left has changed in the last 50 years, and how right-coded Free Speech has become--even, maybe the speech of tenured university professors (who are of course overwhelmingly left-identifying). As one commenter over at Brian Leiter's blog observes:

It seems to me that the dissent attends carefully and sensibly to the relevant facts but that the majority does not. On page 43, the dissent offers this explanation for the majority’s failure:

“My friends in the majority ... have developed a new ‘bad man’ theory of the law: identify the bad man; he loses. ... The majority’s threadbare analysis willfully abandons both our precedent and the facts in search of its desired result. ... that cynicism breaks new ground.”

A second commenter adds further context:

Curiously, the two judges in the majority (Wynn and Thacker) are Obama appointees, whereas the one judge in dissent (Richardson) is a Trump appointee. As the preceding comment observes, the argumentation in the dissenting opinion is far better than that in the majority opinion.

Leiter himself then weighs in on Richardson:

I see that Judge Richardson is a UChicago Law graduate (before my time), who clerked for Judge Posner.

Posner, of course, is the father of the Law and Economics movement, which is not universally embraced by conservative lawyers but is very often a right-coded jurisprudence. So here we have a flip from the stereotypical expectations, with leftist judges constraining the academic freedom of a tenured university professor (as well as government employee freedom of speech generally--they give a narrower interpretation than the conservative Supreme Court furnished in 2006!) and a right-wing judge dissenting.

Naturally, most analysis seems to agree that this is a results-oriented decision; the "real issue" is not academic freedom or freedom of speech at all, it's the total inviolability of the gospel of DEI. Porter committed a heresy, and got slapped down for it, and the high priests of the church of DEI confirmed his punishment. All other details are irrelevant. This does not mean Republicans are now going to be the champions of academic freedom, or that Democrats have abandoned that position. It's just pure, unadulterated who, whom, as the dissent seems to grasp.

I hate when judges add fuel to the cynical fires of "there is no principle, there is only power." I have seen judges choose principle over their preferred results. I know that something like reasoned objectivity is broadly achievable, if we value it. But it seems to be happening less and less, and certainly the forcefulness with which DEI has been rammed down our collective cultural throat seems best described as oppressive ideological totalitarianism.

I tend to believe in free association a lot more than currently protected which makes this a very grey zone for me. In general I think “most” employees should be able to discriminate in any way that want to which would include speech.

The taxpayer funding part gets complicated here. The employer the voters should get to choose what their employers do in an official capacity. I don’t have a problem if Kendi was an employee of University of Florida and Desantis fired him. I don’t think the State should be able to fire him for his speech as a private person.

Now I think an organization should be able to have some dissidents in management with different ideas and good organizations can deal with it. But if he’s a nuisance to management I don’t have a problem with him being fired.

"when professors speak and write as citizens of the campus community and officers of an educational institution."

Hoist them on their own petards. Pass laws banning advocating for race-segregated graduations, student groups, "affinity" groups, or programs. When faculty complain, whoops, that's intramural speech seeking to racially-discriminate in violation of the Civil Rights Act and 14th Amendment; no "free speech" protection there.

They'll find some way to dodge it. Perhaps it's hate speech. Perhaps it makes people feel unsafe. They could invent a whole new legal doctrine specifically to target this, ignoring the contradiction with precedent.

OP's whole point is summed up in this statement from the dissent:

“My friends in the majority ... have developed a new ‘bad man’ theory of the law: identify the bad man; he loses. ... The majority’s threadbare analysis willfully abandons both our precedent and the facts in search of its desired result. ... that cynicism breaks new ground.”

It's a results oriented decision, not a principle-based one.

Is that too heated?

If you have to ask, the answer is probably “yes.”

I am pretty skeptical of comments evaluating the quality of “argumentation.” At worst, it’s drawing one’s opponent as the Soyjak. At best, you’re still going to get wildly different interpretations. Compare our board after the AA and debt decisions: were the conservative justices extra-principled? Was Barrett, Kavanaugh, Kagan or Sotomayor a hack? Did Roberts sandbag as part of a devious liberal strategy?

The answer to all these questions is most likely “no,” but you can find each of them argued in the parent thread. Such is the risk of evaluating literal opinions. Our own debate is weak evidence.

Likewise, I don’t think the comments are great evidence that Wynn and Thacker are hacks. Leiter himself starts out on firmer ground, and I appreciate his analysis of Garcetti. The merits of this case do look pretty suspicious! I’m just…not ready to jump to accusations of hackery. Reading the tea leaves about right- or left/coded jurisprudence, or who clerked for whom, should be secondary to analysis of the actual opinions. Unfortunately, the FIRE links are broken, and I get a 404 when I try and evaluate the argumentation for myself.

Edit: found it.

Upon review, we affirm the dismissal because we find that Appellant has failed to allege a causal connection between the only communication that is arguably protected under the First Amendment and the alleged adverse employment action.

There were three points of contention. The court denies that two of them were protected, since they did not have political valence. For the third, a blog post, they argue that the timeline doesn’t line up, and the complaints of the firing process don’t focus on it. I think this amounts to saying Porter was enough of a dick to get fired even if he had been expressing the opposite political opinion. Is this true? Maybe. Is it chilling? Probably. Does it meet the “rigorous” standard? You know, I could be convinced.

Naturally, FIRE spins this as a “troubling” development and dismantling of Garcetti. Leiter already questioned that. Despite my preference for improved speech protections, I am loath to take FIRE as an unbiased source.

Curiously, the two judges in the majority (Wynn and Thacker) are Obama appointees, whereas the one judge in dissent (Richardson) is a Trump appointee. As the preceding comment observes, the argumentation in the dissenting opinion is far better than that in the majority opinion.

I have to say, I do not find this curious. I have admitted previously to being legally unsophisticated and I remain so; in recent months, I've taken to reading more decisions than I had in the entirety of my life up to that point, and the experience has substantially shaped my view of left-leaning jurisprudence for the worse. There are, of course, decisions with sketchy logic running in either direction, but the number of times that I run into reasoning from left-leaning judges that aligns with that first comment you quote on the "bad man" theory of law is so, so much more frequent. Sotomayor and KBJ seem to have particular enthusiasm for explaining how a decision will have bad outcomes rather than focusing on whether it's, you know, legal and consistent with an ordinary reading of statute. For instances, [this Sotomayor dissent regarding Covid restrictions] or the recent KBJ perspectives on affirmative action. In contrast, Gorsuch seems the most likely of the justices to just read the text to mean what it literally means on ordinary reading.

Pretty sure the commenter doesn’t actually find it curious, either.

The problem is not that this case is results-oriented. It is that the entirety of the Court's jurisprudence on govt employee speech is awful. After all, in Garcetti itself, the Court held that a district attorney could be disciplined for complaining internally that he believed that police officers had lied on a search warrant affidavit. The Court held:

The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 ("Ceballos does not dispute that he prepared the memorandum `pursuant to his duties as a prosecutor'"). That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case— distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that 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.

And, I am a big fan of FIRE, but I am puzzled by their emphasis on the issue of whether the speech in this case was "related to scholarship or teaching", because even the dissent did not rely on that issue, but rather on the threshold question of whether he was speaking as a citizen on a matter of public concern, as opposed to speaking as an employee. In fact, the dissenting judge says: " I need not consider the scope of any exception for duties related to scholarship or teaching." (see dissent, fn 3).

Moreover, I am skeptical that things like speaking at a faculty meeting or sending an internal email is what Garcetti meant by "related to scholarship or teaching." (Note also that Garcetti did not actually create an exception for that speech, but rather left that question open. The Fourth Circuit, however, has said that the exception apples. See Adams v. Trustees of the Univ. of NC-Wilmington, 640 F. 3d 550 (4th Cir. 2011) ["The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of "scholarship or teaching" are in play."]).

Edit: See this law review article for a discussion of terrible decisions arising out of Garcetti. The table of contents gives a sample:

A. Speech about Rank Corruption in Law Enforcement Not Protected Speech

B. Revealing a Leak in Law Enforcement Leads to Punishment Not Praise

C Fire Chiefs Revelations about Inadequate Staffing Lead to Termination

D. Teacher's Warning of Scabies Outbreak Not Protected Speech

E Teacher's Complaints of Falsifying Test Results Not Protected Speech

F Custodian's Warning about Asbestos Not Protected Speech

+1

I have long thought that the "government speech" exception was going to result in a series of absurd decisions before it crashes and burns, or we end up with little fascistic fiefdoms where state governments are just openly spending money to keep incumbent parties in power.

Perhaps, but this case isn't about government speech; the government speech doctrine is something different.

See this law review article for a discussion of terrible decisions arising out of Garcetti.

Why are all those complaints not protected by the laws that protect you from retaliation when you complain about working conditions? The asbestos and scabies seem to fall under this.

California has: Labor Code section 6310 prohibits an employer from retaliating against an employee who complains about safety or health conditions or practices at the workplace, institutes or testifies in any proceedings relating to the employee’s rights to safe and healthful working conditions, exercises any rights under the federal or California law relating to occupational health and safety, or participates in an occupational health and safety committee established under Section 6401.7.

OSHA, which seems federal, has whistleblower protection that should cover some other claims.

It seems whistleblowing is only protected when you complain to the right person. That seems stupid to me.

California has: Labor Code section 6310 prohibits an employer from retaliating against an employee who complains about safety or health conditions or practices at the workplace, institutes or testifies in any proceedings relating to the employee’s rights to safe and healthful working conditions, exercises any rights under the federal or California law relating to occupational health and safety, or participates in an occupational health and safety committee established under Section 6401.7.

If this law had any real weight at all, I can assure you. More than half of the hospitals across the state of California would be shutdown due to the overwhelming abuse of this statute. And in no small way. I’ve born witness to so many rife abuses of this, it would lead you to think the Tianjin explosion had better environmental regulations than they do.

This is all kept hush-hush by the HR departments and the on-site legal team at the facilities too. I’ve been there, right in the crosshairs of getting the axe for complaining about these problems openly. Anyone that makes a peep about it is threatened with termination. Or understaffing the department, and then nitpicking everything you do to document a pretext for termination revoking your expedited overstay in the department. One hospital in particular that I worked at, you would only go there if you ‘wanted’ a death sentence. But it’s all lipstick and appearances, you would never know otherwise. I always felt bad for the patients that left thankful correspondence and letters of appreciation for the care they received. In reality, they’re the most ignorant patients that hospitals receive.

Well, the cases cited are ones which specifically raise First Amendment claims. The employees might have had separate claims under various whistleblower laws.

If DeSantis takes this decision as a green light to fire every CRT-spouting faculty member in the University of Florida system who has criticized their own university or the UF system, we'll get a more recent circuit split. Along, likely, with some very fancy footwork in the Fourth Circuit (which includes part of Florida) explaining why it's not OK when the other side does it (no, the Fourth Circuit does not include any of Florida, I think the source I was looking was describing Florida Circuit Courts).

Re public criticism, DeSantis might have a problem under Pickering. Though as I note above, the public employee speech cases are terrible, so who knows.

Pickering involved a letter written to a newspaper, not intramural speech. De Santis should only fire the university employees that argued for DEI programs in internal venues, not those that used the press.

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