Notwithstanding academic freedom's venerable and near-sacrosanct place among academicians in the United States today, the Supreme Court first accorded it constitutional status only in the 1950s. The Court did not recognize First Amendment speech rights of public employees generally until 1968. In subsequent years, the Court evolved two separate lines of cases: the one relating to, and generally protective of, academic freedom in public colleges and universities; the other, relating to the speech rights of public school teachers and public employees in other work contexts. The Supreme Court has yet to address the question whether the severely restrictive standards developed in the second line of cases must also apply to academic free speech.
Recently, in Harleston v. Jeffries, the Court vacated a Second Circuit decision upholding the district court's determination that City College of New York officials had violated a black faculty member's First Amendment speech right by removing him from his chairmanship in retaliation for remarks he had made in a speech off-campus. The case was remanded to the Second Circuit “for further consideration in light of” Waters v. Churchill, which involved public employee speech in a non-academic setting. Presumably the Court meant to signal that its second line of cases was to govern the Second Circuit's review. The Court, however, gave no guidance as to whether it made any difference if the CUNY faculty member's academic freedom had been infringed. In order to understand how things have reached this point, this article will review these two sets of cases, beginning with the Court's academic freedom decisions.
Richard H. Hiers, New Restrictions on Academic Free Speech: Jeffries v. Harleston II, 22 J.C. & U.L. 217 (1995), available at htpp://scholarship.law.ufl.edu/facultypub/740