U.C.I. 1st Amendment case concerns college governance

.....A friend sent me the following post (A faculty speech/1st Amendment case), by Rachel Levinson, AAUP Senior Counsel. It appeared late last month in the Higher Ed Law Prof Blog. (See also Not So Free Speech in College Governance [Inside Higher Ed, 3/24]):

.....Imagine that you are teaching at a public university that not only supports but encourages your participation in institutional governance. You speak up on several matters that you think undermine the faculty role or your students’ experience—and for your trouble, you are denied a raise, saddled with additional work, or even fired. Do the university’s actions violate the First Amendment?
.....The AAUP and the Thomas Jefferson Center for the Protection of Free Expression recently filed an amicus (“friend of the court”) brief in such a case. The brief, which was filed with the U.S. Court of Appeals for the Ninth Circuit, supports the appeal of Dr. Juan Hong in his First Amendment lawsuit against the administration of the University of California, Irvine. The case could have significant implications for faculty members at all public colleges and universities—and, ironically, could have the strongest negative impact on faculty that are encouraged to participate in university governance.
.....Dr. Hong, a full professor at UCI, allegedly angered university administrators by opposing certain faculty hiring and promotion decisions and the university’s use of lecturers in place of professors. After Dr. Hong was denied a merit salary increase and given an increased workload, he filed suit, claiming that the university violated his First Amendment right to free speech.
.....A federal trial judge in California rejected Dr. Hong’s claim. The judge reviewed Garcetti v. Ceballos, in which the Supreme Court ruled that the First Amendment did not protect public employees from discharge for statements made “pursuant to their official duties” but declined to decide whether its ruling extended to “speech related to scholarship or teaching.” The judge in Dr. Hong’s case concluded that Dr. Hong’s participation in faculty governance was “pursuant to his official duties,” and that the university’s retaliation therefore did not violate the First Amendment. The court failed to acknowledge, however, that the Garcetti decision explicitly set aside the question of protection for academic speech, and held that “UCI is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”
.....The AAUP’s amicus brief focuses on the unique status granted to academic speech, and its relation to shared governance. The brief notes that faculty speech has been accorded special First Amendment protection by the Supreme Court since Sweezy v. State of New Hampshire, 354 U.S. 234 (1957). The hallmark of such cases, the brief notes, is the recognition that academic freedom merits distinctive First Amendment protection against repressive action from within or outside the campus community. The AAUP brief argues that participation in faculty governance is part and parcel of professors’ First Amendment-protected right of academic freedom to speak without fear of retaliation. The brief also observes that the court failed to distinguish between faculty rights and responsibilities, and argues that the court’s decision will empower universities with strong policies in favor of shared governance to discipline faculty members who annoy administrators through their involvement in university governance.