A Statement Regarding the First Amendment

June 9, 2020

Only private universities have the right to dismiss students, faculty, and staff for speech with which their university does not agree. Public universities, like Miami, have no such rights and are, in fact, prohibited from doing so by the First Amendment to the U.S. Constitution. Public employers may not discipline, terminate, or take any adverse employment action against a public employee for exercising his or her rights as a citizen to free speech. This prohibition is found in the U.S. Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). The Garcetti decision makes it clear that as long as the public employee is acting in their capacity as a private citizen, speaking on a matter of “public interest and concern” (as opposed to a matter of purely private concern), the public employee’s right to speak prevails over the public employer’s interest in workplace order; efficiency, discipline, and morale as long as the speech did not occur within and pursuant to the public employee’s actual job responsibilities. Unlike private universities which are not bound by the First Amendment, Miami, as a public university, is obligated to follow the Garcetti decision.

In contrast, when a government employee speaks pursuant to his or her job duties (except perhaps when a faculty member is teaching or conducting research) the employee is not speaking as a citizen on a matter of public concern and the Constitution does not protect the public employee from employer discipline, termination or other adverse employment action. In such circumstances, the government (University) enjoys “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” See Garcetti v. Ceballos, 547 U.S. 410 (2006).

Dr. Brooks was not acting pursuant to his duties as a public employee when he verbally attacked the protestors. He was off-campus, not on work time, and did not represent himself as speaking or acting as a professor at Miami University. The issues of racial injustice, police violence, and the murder of George Floyd and others  are clearly matters of  “public interest and concern.”  Thus, the University is left without legal recourse to take any adverse employment action against Dr. Brooks as a result of his Constitutionally protected hate speech.

Miami University is not the only University to find itself caught in this terrible conflict between its deeply held values of diversity and inclusion and its responsibility to afford its faculty, staff, and students their Constitutional right of free speech. Here are a couple of links to similar conflicts at other universities:

In these kinds of matters, public universities and schools can and do use their most valuable tools; their own right to free speech to denounce the public employee’s private citizen speech and their ability to educate. This is a link to a letter we sent to our community and later published in The Miami Student.

Being a welcoming and diverse community is something we struggle to achieve every day. We must all continue to take a stand against racism and injustice. By raising our collective voices we can change the world.