The Professor as Whistleblower: The Tangled World of Constitutional and Statutory Protections

Abstract

Like Phil Robertson, the patriarch of the Duck Dynasty family, to Edward Snowden, the NSA leaker, many professors at U.S. colleges and universities are surprised to find how little protection they have from the adverse consequences of their speech. The First Amendment is says nothing about either academic freedom or whistleblowing and it has been left to the Supreme Court to develop a doctrine as to when and if a professor’s speech is entitled to Constitutional Protection. This article considers the broad topic of protection for speech by professors other than that directly related to the views they express on their areas of expertise. So the issue here is not about creationism among biologists or holocaust denial from historians, it is about statements faculty make about matters of general public interest including the running of their own institutions. It also includes direct whistleblowing about wrongdoing by the institution.

Constitutional protection, of course, is only available to faculty who work for public institutions — because only a state funded school can qualify as a state actor. The Supreme Court made news in 2006 when it restricted the protection available to public employees speaking out on matters that were part of their job. The case, Garcetti v. Ceballos, involved an assistant DA who was demoted after passing on to his boss that the local sheriff’s department had made false statements about a witness. The decision came with an impassioned dissent from Justice Souter who was concerned about its effect on academic freedom. And indeed in the eight years since Garcetti, court after court has denied protection to professors at public universities based on employees. That all changed this past February, however, when the 9th Circuit Court of appeals issued an opinion in Austin V. Demers boldly declaring that not only didn’t Garcetti’s restrictions apply to academic speech, statements made by professors about the running of their university was just as protected as statements about their academic areas of expertise.

This article looks at the big picture of protections available to academics, in both public and private institutions. It does so by presenting four hypotheticals in which professors run afoul of university administration based on their speech and considers the four major areas of law which can provide protection. These include Constitutional law, but also specific state statutes relevant to higher education, like Title IX and the Clery Act, federal False Claims Act actions which are available to any employee of a college or university whose students receive federal financial aid, and finally state whistleblower laws which can provide protection beyond the first amendment but are often very difficult to invoke.

Keywords: First Amendment, Constitutional Law, Higher Education, Academic Freedom, Whistleblower, False Claims Act, Title IX, Cleary Act Qui Tam