Yesterday a North Carolina jury handed down a major victory for free speech and academic freedom. It found that the University of North Carolina–Wilmington retaliated against criminology professor Dr. Mike Adams for his writing of conservative columns for the website Townhall.com and other forums. The decision culminates years of litigation, including a prior decision before the United States Court of Appeals for the Fourth Circuit. The treatment of Adams reaffirms for many conservatives that academia is hostile to their views and that conservative academics face a bias on promotion. The implications of the decision however could go beyond the issue of bias and raise countervailing issues of academic judgment and decision making.
Adams holds a 1993 Ph.D. in Sociology/Criminology; a 1989 M.S. in Social Psychology and a 1987 B.A. in Psychology. All of his degrees are from Mississippi State University.
Adams says that he was widely supported when he came to the faculty in as a liberal atheist in 1993. However, he found religion and his political views changed with his turn to Christianity. He claims that so did the treatment by his colleagues. In the 2011 decision of the Fourth Circuit, the court details a growing number of complaints about Adams’ public speeches and writings but also a recognition of this free speech rights:
After his conversion, Adams be-came increasingly vocal about various political and social issues that arose within both the UNCW community and society at large. He became a regular columnist for Townhall.com and appeared on radio and televisions broadcasts as a commentator. In 2004, he published a book entitled Welcome to the Ivory Tower of Babel: Confessions of a Conservative College Professor, a collection of previously-published columns and new mate-rial. Throughout this time, Adams continued to receive strong teaching reviews from students and faculty.
As Adams cultivated his conservative standing beyond the UNCW campus, some tension evolved within the UNCW community. Some UNCW employees indicated discomfort with Adams’ views and his manner of expressing them. From time to time, UNCW officials fielded complaints from members of the Board of trustees, the faculty and staff, and the general public about Adams’ public expressions of his views. Correspondence about the complaints indicates that while UNCW officials, some of whom are named Defendants, occasionally expressed personal disagreement with the content of Adams’ columns, they uniformly recognized that the First Amendment and principles of academic freedom protected Adams’ writings and other expressions of his views. At one point, defendant Levy, then interim chair of the Department, suggested that Adams alter the tone of his speech to be less “‘caustic'” and more “‘cerebral'” “like William F. Buckley” in order to “‘make things a whole lot more pleasant around the office.'” (J.A. 43.)
Adams certainly has a faculty bio page that is notable in his lists two “Professional Associations”:
National Association of Scholars and the National Rifle Association.
He then applied for full professor. (He was already granted tenure as an associate professor). The NCCW criteria are fairly typical: allowing promotion based on “teaching, research or artistic achievement, service, and scholarship and professional development.” It does state that “meeting any quantifiable measures provided does not guarantee the award of tenure or promotion.” However, the criteria are supposed to be objectively evaluated. Adams filed a full record of his degrees, honors, and history. He listed ten authored or co-authored “[r]efereed publications (including juried or peer-reviewed . . . writings)” that had been published since 1992, and one additional article of this type that had been accepted for publication. He notably also included more controversial works like his book Welcome to the Ivory Tower of Babel and his co-authored book Indoctri-Nation: How universities are destroying America. He also emphasized his writing for blogs and counseling Christian student groups. He also discussed his advocacy for free speech and participation in conservative media programs.
His Department Chair forwarded the application to the senior faculty, which voted 7-2 to oppose Adams’ promotion. His Department head then concurred and said that she found a lack of the type of “overwhelming support from the senior faculty” needed for promotion. While an earlier draft of her written notice stated that he had presented an “adequate” record, she said that there was concerns that “the area of research” was “inadequate to merit promotion to Professor at this time” because his scholarly productivity was “too thin.” However, in the actual letter send, Dr. Cook said that the decision “was based exclusively on the promotion application and supplementary materials you submitted and [Cook’s] consultation with the senior faculty in accord-ance with existing UNCW . . . policies and procedures.” (J.A. 181.) She informed him of an “overwhelming . . . lack of support from the senior faculty.”
While the Fourth Circuit agreed with the District Court in dismissing the religious discrimination claims, it reversed on the basis of free speech. The university argued that, since Adams’ position required him to engage in scholarship, research, and service to the community, Adams’ speech constituted “statements made pursuant to [his] official duties.” That would place him under the ruling in Garcetti v. Ceballos, 547 U.S. 410, (2006), for the proposition that “when a public employee makes a statement pursuant to his ‘official duties,’ he does not ‘speak as a citizen.'” However, the Court ruled that
Adams’ speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields. For all the reasons discussed above, that thin thread is insufficient to render Adams’ speech “pursuant to [his] official duties” as intended by Garcetti. . . . we conclude Adams’ speech was clearly that of a citizen speaking on a matter of public concern. Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality. Such topics plainly touched on issues of public, rather than private, concern.
The Defendants’ arguments to the contrary rest on the same fallacy engaged by the district court, and focus not on the nature of Adams’ speech at the time it was made, but on his inclusion of those materials in the “private” context of his promotion application. Nothing in the district court’s analysis or the Defendants’ contentions rebut the conclusion that Adams’ speech was that of “a citizen speaking on a matter of public concern.”
I share the concern over the extension of Garcetti and clearly the jury agreed on the merits of the claim of retaliation. I cannot reach an informed decision on the merits of the retaliation but the case will certainly reaffirm that academic bodies must separate their political views from their evaluation of records. The fact that such issues can go to the jury on motivation will likely have an impact on future cases, particularly in reinforcing the need to create a record of clear standards and specific findings. Universities will need to insulate their decisions with written evaluations and objective comparisons. For academics, the decision can raise academic freedom issues of a different kind. If universities can be successfully sued, University presidents may want to assert more control over decisions. More importantly, the decision of academic merit and contribution is a difficult one. It goes not only to the number of publications but their substance. Neither a court nor a jury is particularly well educated in such fine distinctions. For that reason, courts have been highly deferential in the past to the decisions of faculty on promotion. Those standards can change as a school evolves. Some schools actively try to improve their academic standing by imposing higher standards of excellence. The concern may be that such efforts will be misconstrued. It is sometimes difficult to convey to non-academic how some work is derivative or lacking distinction. Ironically, some could argue that the threat will produce a double standard in favor of political activists or minorities by creating a lingering threat of litigation in such cases.
I am particularly gladdened that the University failed in trying to make speech outside of the school as non-public speech but speech connected to Adams’ employment. I would be interested to see if the faculty responded to this legal argument and considered its implications. The University was advancing a sweeping and extreme position on academic speech but my guess is that the faculty was not notified of arguments being advanced in court by their institution. I would also be interested whether the American Association of University Professors (AAUP) filed an amicus brief in support of Adams. It is true that Adams cited the speech as part of his basis for promotion, but the standards include public engagement and advocacy. Unlike academic publications, that criteria must be addressed carefully to avoid bias with regard to the content of the speech.
The decision in this sense is likely to receive a mixed reception in the teaching academy. On one hand, it is a powerful precedent defending free speech for academics. On the other hand, it opens up the door to greater litigation over negative promotion decisions based on the overall weight of scholarship.