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So what happens when a professor’s exercise of academic freedom under the First Amendment infringes upon a student’s right to participate in the educational process free of discrimination based on gender, race, or one of the many other characteristics protected by law?

As any good lawyer will tell you: it depends.

On September 20, 2024, a Federal District Court in Southern California provided insight on how to answer this question based on a nuanced analysis of the First Amendment that is unique to public institutions of higher education.  To understand how these nuances apply to speech in the classroom, we must go back in time to the year 1961 in Will County, Illinois.

In 1961, Marvin L. Pickering was a teacher in Township High School District 205.  The local school board at the time had repeatedly asked voters to pass a bond to support the construction of two new schools.  During one of the elections, Mr. Pickering wrote and published a letter in the local newspaper critical of the school board’s handling of bond proposals and finances, and of the superintendent.  In response, the school board dismissed Mr. Pickering.  He appealed all the way to the United States Supreme Court claiming his First Amendment rights had been violated.

In 1968, the Supreme Court sided with Mr. Pickering. Since then, courts have used what has become known as the Pickering balancing test to evaluate whether a public employee’s speech is protected by the First Amendment.  Under this test, courts analyze two questions to determine whether the First Amendment protects public employee speech:

First, is the public employee’s speech related to a matter of public concern?

Second, do the interests of the public employee, as a citizen, in commenting upon matters of public concern outweigh the interests of the public employer in promoting efficient public service?  (Pickering v. Board of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois (1968) 391 U.S. 563, 568.)

Since the Pickering test was first articulated over 56 years ago, Supreme Court doctrine on public employee speech has continued to evolve. In 2006, the Supreme Court held that the First Amendment does not protect public employees from discipline when they are speaking as part of their official duties.  (Garcetti v. Ceballos (2006) 547 U.S. 410.)  The rationale for this principle is that a public employer has an interest in efficiently managing its operations.

Following the Garcetti decision, academics were left reeling.  The problem, you see, is that when professors at public institutions speak, they are almost always doing so as public employees in the performance of their official duties.  A strict reading of Garcetti suggests the First Amendment does not protect them from discipline based on their scholarship or classroom lectures.

The Supreme Court clearly recognized this conundrum, but expressly declined to address it, writing instead, “We [the Supreme Court] need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” In the 18 years since Garcetti was decided, the Supreme Court has not clarified the First Amendment’s application to public employee speech related to scholarship or teaching at institutions of higher education.

However, several federal courts of appeals have weighed in on this issue.  In 2014, the Ninth Circuit Court of Appeals addressed whether a professor’s department communications plan was protected by the First Amendment.  (Demers v. Austin (9th Cir. 2014) 746 F.3d 402.)  Under a strict reading of Garcetti, the plan would not have received any First Amendment protections because it was prepared by the professor in his official capacity as a governmental employee.  However, the court in Demers carved out an exception to Garcetti and held that public employee speech related to scholarship and teaching is protected by the First Amendment if it passes the Pickering balancing test. That is, the speech must relate to a matter of public concern and the employee’s interests in the speech must outweigh the university’s interests in regulating the disruptive effects of the speech.   

In the 10 years since Demers, academics and their institutions have disagreed over the parameters of what constitutes speech related to scholarship and teaching, which brings us to the case of Corlett v. Tong (S.D. Cal., Sept. 20, 2024, No. 24-CV-78 TWR (MPP)) 2024 WL 4257645.

1. Angelo Corlett is a tenured philosophy professor at San Diego State University. During the Spring 2022 semester, some students complained about his use of racial epithets and gender slurs in class. In one of his courses, Professor Corlett repeated the “n-word” during a lesson on a philosophical concept known as the “use-mention distinction.”  According to Professor Corlett, this concept teaches students to discern between “racial” and “racist” language by looking at the intent of the speaker.  To make his point, Professor Corlett used racial epithets to distinguish instances when the use of a word entails racist animus toward a particular group or person from the mere mention of a word with no racist intent.  Professor Corlette’s use of racial epithets in class made some students uncomfortable.

In another course, Professor Corlett repeatedly used gender slurs including “p***y” and “b**ch.”  He also used the word “rape” as a metaphor, such as “schools are constantly raping our minds.”  Several students complained and ultimately five women withdrew from one of his classes citing safety concerns.

In response, the university removed Professor Corlett from one of his classes, conducted two investigations, and instituted a one-semester unpaid suspension.  After exhausting his university level appeals, Professor Corlett sued the university alleging they violated his First Amendment rights.

The university asked the court to dismiss Professor Corlett’s lawsuit arguing that the use of racial epithets and gender slurs in the classroom were not protected by the First Amendment.  Professor Corlett and the university agreed that the speech in question was academic speech.  As a result, whether it enjoyed First Amendment protection turned on the application of the Pickering balancing test.

The court determined that when Professor Corlett used the racial epithets in class, he was speaking on a matter of public concern because his language was directly related to the lesson he was teaching.  The court stated, “[t]he relevant inquiry, therefore, is whether [Professor Corlett’s] use of the ‘n-word’ in his spring semester 2022 Philosophy 200 course was ‘germane to the subject matter of his lecture’ on the use-mention distinction. The Court concludes that it was . . . .”  (Id. at *25.)

Next, the court addressed whether Professor Corlett’s interest in using racial epithets in class outweighed the university’s interests in regulating the disruptive speech.  The court determined that at the current stage of the litigation, it could not competently assess the competing interests and deferred a decision on this question until the parties could present additional evidence.    

As to Professor Corlett’s use of gender slurs, the court reached a different conclusion.  Professor Corlett argued he was speaking on a matter of public concern when he used the words “p***y” and “b**ch” in the classroom.  He said these terms “were referenced in a classroom lecture and discussion regarding the ambiguity of certain language,” and were “pedagogically relevant.”  (Id. at *26.) 

The court rejected this argument, concluding that Professor Corlett used both terms in the Philosophy 512 class in a derogatory manner; he “used the word ‘p***y’ to refer to people or groups as weak or not assertive [citation omitted]”; failed to establish that these terms were germane to the subject matter of the course; and therefore, failed to sufficiently allege he spoke on a matter of public concern when he used this language.  (Ibid.)  In short, the court ruled that under the Pickering balancing test, Professor Corlett’s use of the words “p***y” and “b**ch” in the classroom, in the circumstances of this particular case, were not protected by the First Amendment.

It is important to note that Professor Corlett’s case continues to be litigated and the current ruling is not precedential and may be reversed on appeal.  However, the framework used by the court at this early stage of the litigation should provide useful guidance for public colleges and universities in determining whether a professor’s speech enjoys First Amendment protection.

In summary, the critical questions an institution must ask before attempting to regulate a professor’s speech include:

1. Is the speech related to scholarship or teaching?
2. Is the speech germane to the subject matter of the lecture?
3. Does the speech address a matter of public concern?
4. Do the institution’s interests in regulating the speech outweigh the professor’s interests in commenting on matters of public concern?

The answers to each of these questions are highly fact specific.  Institutions should proceed cautiously and with care if they are considering discipline against a professor based on the content of speech.  Also, institutions must consider the application of other laws such as whistleblower protection laws and labor rights laws before taking action to restrain public employee speech.

The Department of Education Office of Civil Rights has recently issued a Dear Colleague Letter addressing tension caused by the intersection of free speech rights and the right to be protected from discrimination and a hostile learning environment.  These issues will be addressed in a forthcoming AALRR publication.