Okay folks - this was an interesting chapter, to say the least! Chapter six focused on the subject of faculty academic freedom. It provides a distinction between several concepts related to academic freedoms, including one which often is called to question: the difference between “First Amendment free expression rights and First Amendment academic freedom rights (Kaplin) ” Here are a few topics for possible discussion in this blog, but feel free to add any additional topics or cases that you would also like to discuss; this chapter was loaded with choices! I look forward t reading your responses!
1. What was your reaction to the various sexual harassment cases discussed within this chapter (for example Cohen v. California, Bonnell v. Lorenzo, Silva v. University of New Hampshire)? Did it seem as if the courts were “allowing” bad or inappropriate behavior, or were the plaintiffs and institutions’ cases misguided and focusing on academic freedoms rather than on the quality of teaching and “congenial academic environment” (Kaplin, p. 271)? 2. At basis of many future court decisions in this line is Pickering v. Board of Education, 391 U.S. 563. This was the case where a teacher was dismissed for writing a letter to a local newspaper, criticizing financial plans made by the board of education. Many cases arguing the public and private rights of public employees have come through the courts before and after this case; why do you think this one was so impactful on future cases? 3. One of the points under Waters v. Churchill (the case where a nurse’s employment by a hospital had been terminated because of statements she was making to fellow employees) was “the reasonable belief requirement” – “the employer’s belief concerning the content of the employee’s speech apparently must be an actual or real belief arrived at in good faith” (Kaplan, p.243). How likely do you think it is that employers’ beliefs really can be objective, and how can a court judge the “reasonableness” of this belief? 4. How current do you believe the AAUP’s 1982 “Recommended Institutional Regulations on Academic Freedom and Tenure” can be? Have things changed in the classroom over the past 28 years that might need to be addressed with an update? Although our text doesn’t state the specifics of these recommended regulations, what would you think might need to be reviewed and perhaps added or deleted? 5. What are your thoughts on the “four essential freedoms of the university” as written by Justice Frankfurter in Sweezy v, New Hampshire? Do you believe these four freedoms remain constant today?
3. Yes, determining that the employers' beliefs really are objective could be a tricky task. Your question reminded me of a case from Chapter 5, Brown v. George Washington University (p. 191). Here a faculty member was denied tenure and promotion and felt that she had been denied the opportunity to appear before the promotion committee to provide additional information on her behalf, a right that was part of the department's written policy. Here the court listened to the testimonies of department members to get some interpretation of the policy. Perhaps in a similar way, in order for the court to judge "reasonableness" of the employers' belief, interviewing and listening to the testimony of different employees could be a valuable tool. Of course this may put strain on the relationship between the employees providing testimony and the employer also I suppose.
1. My initial reaction is that I don't think I would like to be a student in Cohen's or Silva's courses. I do feel there was some inappropriate behavior going on. With Cohen I feel he should've accommodated the student with a different assignment and I like that the district court required of him "to put potential students on notice of his teaching methods." Also, I think that Silva could probably find other ways and statements in order to convey the principles he is teaching.
Jason, thanks for your thoughts and insight. I was particularly interested in your perspectives since you are both a faculty member and a male, and therefore can provide a point of view from those angles which might be different from mine. I agree with you that Cohen should have offered his student the alternative writing assignment, and I thought it rather telling that the court required him to give notice to students of his “teaching methods”…I’m curious what he actually did to provide such notice, and whether some students might have taken his class for the potential shock value of the class rather than the actual course content.
Donna, in answering number 2, I believe Pickering was a hallmark case because it was a prelude to constitutional law challenges that might be presented via public employees. In essence, a public employee shouldn't have to relinquish constitutional rights (First Amendment - Free Speech) simply because they are a public employee. The Court held Pickering was speaking more as a concerned citizen, then as a public employee. Thus, they protected Pickering's First Amendment rights. However, if I am reading subsequent cases correctly, it appears that the Court's intent with Pickering is eroding with time.
Reading the Pickering case and related court decisions about the use of the ability to claim a First Amendment violation of free speech was eye-opening. I think many of us "assume" our rights are always protected, in public, private, and at work. After all, why would we not be not be able to express our discontent for an employers? How many people vent about their jobs at work? Isn't that part of the water cooler culture? Where's the reasonable consideration of the pragmatics of "complaining about my job" factor in?
I can see how in the case of Waters v. Churchill the concern was that criticism "could" disrupt operations, but I don't think as you point out it's fair to allow the employer to judge that.
Good postings! Dionne, I share your thoughts that subsequent cases may be eroding - or at a minimum, changing - the Court's intent with Pickering. Michelle, you brought up some good points about "water cooler" conversations! It might behoove many of us to be more aware and even wary as we share our feelings in public - or in private with one other employee. I was interested in learning more about Waters v. Churchill and located the following link if anyone is interested in reviewing this case. You'll need to "cut and paste" into the web browser. http://scholar.google.com/scholar_case?case=3521929082371837035&hl=en&as_sdt=2&as_vis=1&oi=scholarr
In regard to question 2, I think Pickering was important and continues to be important for two reasons: 1. It recognizes that the employer-employee relationship prevails in public employee free speech cases and, 2. It establishes that the appropriate resolution of those cases requires the identification and weighing of the competing interests of the public employee and the government employer.
What appears to be most problematic about Pickering, however, is that “balancing test” often involves courts in difficult, intensive fact-finding inquiries where even Supreme Court justices completely disagree about how to strike a suitable balance; as we have seen and may continue to see in many subsequent cases.
Okay folks - this was an interesting chapter, to say the least! Chapter six focused on the subject of faculty academic freedom. It provides a distinction between several concepts related to academic freedoms, including one which often is called to question: the difference between “First Amendment free expression rights and First Amendment academic freedom rights (Kaplin) ” Here are a few topics for possible discussion in this blog, but feel free to add any additional topics or cases that you would also like to discuss; this chapter was loaded with choices! I look forward t reading your responses!
ReplyDelete1. What was your reaction to the various sexual harassment cases discussed within this chapter (for example Cohen v. California, Bonnell v. Lorenzo, Silva v. University of New Hampshire)? Did it seem as if the courts were “allowing” bad or inappropriate behavior, or were the plaintiffs and institutions’ cases misguided and focusing on academic freedoms rather than on the quality of teaching and “congenial academic environment” (Kaplin, p. 271)?
2. At basis of many future court decisions in this line is Pickering v. Board of Education, 391 U.S. 563. This was the case where a teacher was dismissed for writing a letter to a local newspaper, criticizing financial plans made by the board of education. Many cases arguing the public and private rights of public employees have come through the courts before and after this case; why do you think this one was so impactful on future cases?
3. One of the points under Waters v. Churchill (the case where a nurse’s employment by a hospital had been terminated because of statements she was making to fellow employees) was “the reasonable belief requirement” – “the employer’s belief concerning the content of the employee’s speech apparently must be an actual or real belief arrived at in good faith” (Kaplan, p.243). How likely do you think it is that employers’ beliefs really can be objective, and how can a court judge the “reasonableness” of this belief?
4. How current do you believe the AAUP’s 1982 “Recommended Institutional Regulations on Academic Freedom and Tenure” can be? Have things changed in the classroom over the past 28 years that might need to be addressed with an update? Although our text doesn’t state the specifics of these recommended regulations, what would you think might need to be reviewed and perhaps added or deleted?
5. What are your thoughts on the “four essential freedoms of the university” as written by Justice Frankfurter in Sweezy v, New Hampshire? Do you believe these four freedoms remain constant today?
3. Yes, determining that the employers' beliefs really are objective could be a tricky task. Your question reminded me of a case from Chapter 5, Brown v. George Washington University (p. 191). Here a faculty member was denied tenure and promotion and felt that she had been denied the opportunity to appear before the promotion committee to provide additional information on her behalf, a right that was part of the department's written policy. Here the court listened to the testimonies of department members to get some interpretation of the policy. Perhaps in a similar way, in order for the court to judge "reasonableness" of the employers' belief, interviewing and listening to the testimony of different employees could be a valuable tool. Of course this may put strain on the relationship between the employees providing testimony and the employer also I suppose.
ReplyDelete1. My initial reaction is that I don't think I would like to be a student in Cohen's or Silva's courses. I do feel there was some inappropriate behavior going on. With Cohen I feel he should've accommodated the student with a different assignment and I like that the district court required of him "to put potential students on notice of his teaching methods." Also, I think that Silva could probably find other ways and statements in order to convey the principles he is teaching.
Jason, thanks for your thoughts and insight. I was particularly interested in your perspectives since you are both a faculty member and a male, and therefore can provide a point of view from those angles which might be different from mine. I agree with you that Cohen should have offered his student the alternative writing assignment, and I thought it rather telling that the court required him to give notice to students of his “teaching methods”…I’m curious what he actually did to provide such notice, and whether some students might have taken his class for the potential shock value of the class rather than the actual course content.
ReplyDeleteDonna, in answering number 2, I believe Pickering was a hallmark case because it was a prelude to constitutional law challenges that might be presented via public employees. In essence, a public employee shouldn't have to relinquish constitutional rights (First Amendment - Free Speech) simply because they are a public employee. The Court held Pickering was speaking more as a concerned citizen, then as a public employee. Thus, they protected Pickering's First Amendment rights. However, if I am reading subsequent cases correctly, it appears that the Court's intent with Pickering is eroding with time.
ReplyDeleteHi Donna-
ReplyDeleteReading the Pickering case and related court decisions about the use of the ability to claim a First Amendment violation of free speech was eye-opening. I think many of us "assume" our rights are always protected, in public, private, and at work. After all, why would we not be not be able to express our discontent for an employers? How many people vent about their jobs at work? Isn't that part of the water cooler culture? Where's the reasonable consideration of the pragmatics of "complaining about my job" factor in?
I can see how in the case of Waters v. Churchill the concern was that criticism "could" disrupt operations, but I don't think as you point out it's fair to allow the employer to judge that.
-Michelle Bell-
Good postings! Dionne, I share your thoughts that subsequent cases may be eroding - or at a minimum, changing - the Court's intent with Pickering. Michelle, you brought up some good points about "water cooler" conversations! It might behoove many of us to be more aware and even wary as we share our feelings in public - or in private with one other employee. I was interested in learning more about Waters v. Churchill and located the following link if anyone is interested in reviewing this case. You'll need to "cut and paste" into the web browser.
ReplyDeletehttp://scholar.google.com/scholar_case?case=3521929082371837035&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Hi Donna:
ReplyDeleteIn regard to question 2, I think Pickering was important and continues to be important for two reasons:
1. It recognizes that the employer-employee relationship prevails in public employee free speech cases and,
2. It establishes that the appropriate resolution of those cases requires the identification and weighing of the competing interests of the public employee and the government employer.
What appears to be most problematic about Pickering, however, is that “balancing test” often involves courts in difficult, intensive fact-finding inquiries where even Supreme Court justices completely disagree about how to strike a suitable balance; as we have seen and may continue to see in many subsequent cases.