FREE SPEECH — As federal courts read the First Amendment, public college and university teachers have no free speech right to talk about gay issues in the classroom and can be let go for such behavior—in Mississippi, that is.  But not in California, where the contrary is the case. Should the interpretation given to a bedrock item in the Bill of Rights depend on whether a federal court sits in a red or a blue state? New York Law School Professor Arthur S. Leonard says the U.S. Supreme Court's pointed avoidance of addressing whether academic freedom is a First Amendment right for public higher education faculty has left some serious confusion.

. . . June Sheldon . . . was teaching a class on heredity at San
Jose/Evergreen Community College. A classroom discussion of genetics
led to a student question about whether homosexuality was a
genetically-determined trait. Ms. Sheldon and the students differ about
her responses, but some students found what she had to say
objectionable. One student complained to the dean that Prof. Sheldon
had stated that there "aren’t any real lesbians" and that "there are
hardly any gay men in the Middle East because the women are treated
very nicely."

Although Sheldon, an adjunct professor on a term contract, had
already been offered and accepted teaching assignments for the next
semester, the dean sent her a letter stating that she had investigated
the complaint and had concluded that Sheldon was "teaching
misinformation as science," so the course assignments were revoked.

Judge Whyte observed that the Supreme Court in Garcetti had ruled
that a public employee’s job-related speech generally does not receive
First Amendment protection because the government is entitled to
control what is said by its employees in their job functions when their
speech will be attributed to the government. In that case, the employee
in question was a government attorney who was disciplined for publicly
criticizing an action of his office in the context of litigation.

Judge
Whyte pointed out that the Supreme Court had refrained in Garcetti from
deciding whether or how this general rule should apply in the context
of higher education.
"There is some argument that expression related to academic
scholarship or classroom instruction implicated additional
constitutional interests that are not fully accounted for by this
Court’s customary employee-speech jurisprudence," wrote the Supreme
Court in Garcetti. "We 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 Nichols case from Mississippi, the plaintiff was a vocal
instructor who responded to a voice student’s questions about pursuing
a career in the New York theater by talking about the presence of
homosexuals in the New York theater world as a threat to be avoided.
The student, who was gay but not previously "out" to the professor,
came out to the professor, who responded with condescending remarks.
The student was offended and complained to the administration, which
decided not to renew the professor’s contract. Judge Starrett decided
that because the professor’s comments were given in the context of
counseling the student about his career goals, they were
employment-related speech and thus not protected by the First Amendment.