The Second Circuit ruled Friday that the University of Connecticut is entitled to "qualified immunity" on a School of Engineering Dean’s claim that he was demoted in violation of his First Amendment rights to free speech. The case has very important ramifications for public employers on how they can deal with criticism from managerial-level employees.
In Faghri v. University of Connecticut (download here), the Court was clear that the First Amendment does protect the the Dean’s right to speak in opposition to university policies. For example, the court says, he could not have been jailed or held liable for such speech or enjoined from speaking. But he was not entitled to hold his "executive, policymaking position" while doing so.
[T]he management of a public institution, such as a university, is not required to retain in a management or policymaking position a person who publicly opposes its policies. Such an institution is entitled, for the sake of effective implementation of its policies, to have in management positions, especially high-ranking executive positions, persons who will support its policies, rather than persons who will undermine its goals by voicing public opposition to them.
The court said that the focus must be on the type of position that the UConn Dean held:
Our conclusion might well be different had the university fired [him] from his professorship. The reasoning of our decision depends upon the fact that it was from a management position that the university removed him. We not suggest that a public university can fire a teacher for voicing opposition to university policy. [The dean], however, lost only his position on the university management team; he retained his chaired professorship. His vocal opposition to university policies entitled the university management to remove him from the deanship.
The decision provides a great deal of room for public employers to maneuver when dealing with criticism from within from managerial employees. Time will tell whether this same analysis will be applied by the state courts in looking at state free speech claims under Conn. Gen. Stat. 31-51q.
The Wait a Second blog notes that this decision is really the first of its type from the Second Circuit in over a decade and that its importance cannot be underestimated:
This is not the first time the Second Circuit has rejected speech claims by high-ranking public employees in this context, but it’s been a while since we saw a case like this. The mid-1990s saw a few such cases, including McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997), and Faghri’s case ties this doctrine together in a fairly bright-line way. Managerial employees in the public sector had better get with the program and put a lid on it if they want to avoid discipline. Their free speech rights rest on a very thin reed at this point.