First Amendment Protections for Adjuncts and the Seventh Court of Appeals
Recently a federal court of appeals found that an adjunct professor in Illinois did have the right to sue for wrongful termination; it was her contention that the First Amendment protected her right to criticize her employer publicly. What are the implications of this decision for Colorado’s adjuncts? Following is a letter written from Don Eron, member of the Colorado Conference executive committee, as well as national AAUP’s Committee A on Academic Freedom and Tenure, to all participants on the COCAL (Coalition of Contingent Academic Labor) adjunct listserv (adj-l).
Vanessa has asked that I weigh in on the recent Seventh Federal Court of Appeals decision regarding Robin Meade’s lawsuit against Moraine Valley Community College in Illinois. Vanessa, Jack and others have suggested that the long-term implications of the decision are unclear and, at least at this point, a note of cautious optimism might be the best response. I agree. Specifically, I think that some of the press coverage has overstated the breadth of the court’s finding regarding First Amendment protections for adjunct speech. There are also questions about the decision’s impact on adjunct eligibility for unemployment compensation. Still, the news from this decision is very good, and there’s already much that adjunct activists can put to use.
In advance, please pardon the length of this missive. But I would like to note that this weekend I attended the AAUP’s Committee A meeting, where we discussed the court of appeals’ decision. Although these impressions are my own, I think that they are generally consistent with those of the AAUP legal staff.
To summarize the case: Moraine Valley Community College in Illinois fired Robin Meade, an adjunct and union activist, explicitly for criticisms made in a letter she wrote in her capacity as head of the adjunct union. Meade sued Moraine Valley in district court. The district court threw out Meade’s lawsuit because they found that she had no legal ground on which to contest her dismissal. Meade appealed to the Seventh Federal Court of Appeals, which was obliged to interpret the evidence in ways most favorable to Meade.
On that basis, the appeals court found that Meade had two legitimate legal claims. First, that the letter she wrote in her capacity as a union official–a letter critical of college policies regarding adjuncts–was protected by the first amendment because it addressed an issue of public concern. Second, that a letter of agreement that Moraine Valley Community College had sent to Meade, tentatively indicating her course assignments for the fall semester of 2013, implied a property interest that entitled Meade to due process protections. Having found that Meade has grounds for a lawsuit, the appeals court has now tossed the case back to the district court to hear the suit.
The First Amendment implications of this decision are welcome, but narrower than some of the press coverage has suggested. First Amendment protections for public employees are generally guided by the Supreme Court’s 2006 Garcetti ruling, which determined, essentially, that public employees have no first amendment protections for speech made “pursuant to their official duties.” However, Moraine Valley conceded that they fired Meade for speech made in her capacity as head of her adjunct union, which–all sides agreed–was not among her official duties as an adjunct instructor. Thus, the court applied the Supreme Court’s far more liberal 1968 Pickering decision to determine Meade’s First Amendment rights. The court did not comment on what they might have ruled had Garcetti been applicable—if, for example, Moraine Valley had fired Meade because they didn’t like comments she’d made at a faculty meeting. In other words, this decision says nothing about First Amendment protections for speech made by adjuncts in the course of performing their job responsibilities. What it does suggest, however, is that activists who are involved in the leadership of their unions or AAUP advocacy chapters or other adjunct organizations have considerable protection for speech made when representing those organizations. If you are not already actively engaged in an organization that represents adjunct interests, please join in the fun.
Other news from the decision is mostly good. The appeals court decision rousingly characterizes the adjunct crisis as a national problem, and the working conditions of adjuncts as a matter of public concern. While this finding may be self-evident to anyone reading this post, it certainly wasn’t apparent to the district court. This lower court didn’t fathom a connection between adjunct working conditions and student learning conditions, and found that Robin Meade’s criticisms were a matter of “private griping” rather than public concern because, as an adjunct, she was personally affected by the policies of the college. In their decision, the upper court found the district court reasoning (or myopia) to be almost incomprehensible. As activists, we can now use the powerful Seventh Court of Appeals decision to validate one of our central arguments. From my own vantage point, I can say that when I meet with administrators, legislators, or lobbyists to advance our Colorado initiatives, my argument—that the desire of higher education administrations for maximum flexibility over their workforce has a corrosive impact on the educational product—is often met with skepticism. This decision will help.
The decision is also significant for the finding that the “spare” piece of paper Moraine Valley CC sent Robin Meade before the fall semester of 2013 indicating (with many qualifications) her class schedule, and also furnishing a beginning and end date, constituted a binding employment contract for the fall semester. In effect, the letter gave her property rights that superseded any presumptions of at-will employment (despite that Illinois is an at will state and that Moraine Valley’s CBC agreement stipulates that all adjuncts are to be employed at-will). As a practical matter this means that, for the duration of that semester, Meade should not have been fired without access to due process dismissal procedures. More generally, it may suggest that adjuncts are no longer to be considered at will employees as long as they receive something in writing that confirms class assignments and states a beginning and end date.
While this implies some degree of job security that many adjuncts have not enjoyed, as Maria and others have observed colleges can find ways around it, if they wish to. For example, if classes don’t “make,” the contract would no longer be valid. Furthermore, as the appeals court explicitly states, had Moraine Valley wished to legally dismiss Meade, they could simply have waited until the end of the fall semester and then advised Meade that there were no courses available for the spring term. All that notwithstanding, the court’s recognition that a written notification of class assignments that almost all adjuncts receive but that almost no one has considered to have legal validity, might now be considered to be a binding contract replete with property rights for adjunct teachers, is an exciting step in the right direction.
As for the possible negative consequence, it may be (as some have suggested) that the viability of the contract constitutes a reasonable assurance of employment, and therefore it might interfere with one’s case for unemployment compensation between sessions. That will need to be sorted out, obviously, but there are positive laws in some jurisdictions. In California, for example, it’s doubtful that Meade’s “spare” piece of paper would provide a reasonable expectation when classes that do not fill can be cancelled or when full-timers who want or need classes can take them away from adjuncts. If the Seventh Court of Appeals decision becomes the precedent that I hope it will, for all the good reasons, it will be necessary for us to prioritize the issue of unemployment compensation even more than we have.
On a final note, in Colorado we have found that attorneys seldom are willing take on cases involving adjunct termination–and not only because the laws tend not to favor part-time employees. Generally, an adjunct cannot afford to pay for a lawsuit. Nor do adjuncts usually earn enough money to make it worthwhile for attorneys to take on their cases on a contingency basis. Thanks to Robin Meade (who should be on this list if she is not) and her lawyers for pressing her case, and best wishes for a successful outcome as her suit has now been tossed back to district court.