First Amendment Rights for Adjuncts

A college can’t fire an adjunct professor for criticizing it, so long as the issues raised are matters of public concern and the adjunct has reasonable expectation of continued employment, the U.S. Court of Appeals for the Seventh Circuit ruled Thursday in a decision regarding Moraine Valley Community College in Illinois.

Adjuncts historically have struggled to find legal support when they suddenly lose their teaching assignments, and the appeals court decision represents a strong statement that they have First Amendment rights and that their grievances are significant matters of public policy.

With its decision, the appeals court reversed an earlier, lower court’s decision that Moraine Valley was within its rights to terminate Robin Meade, an adjunct professor of business and president of the American Federation of Teachers-affiliated Moraine Valley Adjunct Faculty Organization, for writing an unflattering letter about the college to an international community college group.

In her suit, Meade alleges that the college asked her and other union leaders to write to the League for Innovation in the Community College in favor of Moraine Valley’s affiliation with the organization. But instead of endorsing the college’s role, she wrote to the league about her misgivings about it. On union letterhead, Meade wrote that the college treated adjunct faculty, who teach 60 percent of courses, as a “disposable resource” and “separate, lower class of people.” She said that college resources were largely devoted to full-time faculty and staff, and that adjuncts had “to fend for themselves.” She linked the college’s adjunct employment policies, such as not paying them for hourly work outside of class to tutor students, to high failure rates in developmental classes.

Meade also wrote in the letter that adjuncts at Moraine Valley were underpaid and lacked benefits and job security, “creating a chilling effect which affects adjunct performance and erodes the confidence the idyllic atmosphere and beautiful buildings and grounds strive to project.”

She sent the letter in late August 2013. Two days later she received a termination letter from Andrew Duren, the college’s vice president, even though she already had a contract to teach classes that fall. Duren’s letter said the league had forwarded a copy of Meade’s message, which he called “replete with misrepresentations and falsehoods” and “irresponsible rhetoric” that was “disruptive and not consistent with the best interests of the college.” About two weeks later, according to court documents, Meade also received an email from the chief of Moraine Valley’s police force saying that any future visits to campus would be considered criminal trespass.

In response, Meade sued the college for retaliation in violation of her First Amendment rights and for stripping her of a protected property interest – her job that semester – without due process.

The district court found Meade’s league letter insufficiently relevant to the public interest for it to count as protected speech, and said that based on her adjunct status, she didn’t have enough property interest in her job to claim due process violation.

On Thursday, though, the appeals court said that the lower court had erred in its judgment. Chief Judge Diane P. Wood, writing for the unanimous, three-judge panel, in her opinion said that Meade’s concerns about adjunct employment conditions in relation to student success met the legal definition of public concern. Wood also said that any partial, personal motivation for writing the letter did not undermine its public relevance.

“The letter’s multiple references to the difficulties facing all Moraine Valley’s adjuncts remove it from the realm of the purely personal,” Wood said. “And Meade is not alone in expressing concern about the treatment of adjuncts. Colleges and universities across the country are targets of increasing coverage and criticism regarding their use of adjunct faculty.”

Wood added: “The people who attend Moraine Valley, along with their families and others who live in the area, no doubt want to know if this practice poses a threat to student performance.”

The court also referenced the influential 2006 U.S. Supreme Court Case Garcetti v. Ceballos, which held that a public employee’s statements made pursuant to his or her official duties can’t provide the basis of a retaliation claim. But Wood said that Meade had no employer-imposed duty to write her letter, and therefore that ruling didn’t apply.

Although the lower court also found that Wood’s adjunct status at the college prevented her from claiming a violation of due process, the appeals court found otherwise.

Wood acknowledged that while Meade’s employment agreement for Fall 2013 nowhere stated that she could be terminated only for cause, it “otherwise evinces” a “mutual understanding” of employment. Details such as course numbers, pay and – in particular – start-to-finish dates for the fall semester demonstrate Meade’s “cognizable property interest in working at the college during that period” by state law.

In concluding something different, Wood wrote, “the district court did not adequately take into account Illinois’s rule that employment with a fixed duration provides an exception to the at-will presumption” in Meade’s part-time contract.

Meade could not immediately be reached for comment. A spokesman for Moraine Valley declined to comment, citing the ongoing nature of the case.

Adjunct advocates who had been following the case, including Maria Maisto, president of the New Faculty Majority, a national adjunct advocacy association, applauded the ruling. Maisto said it provided insight into how to navigate legal challenges for adjuncts going forward – such as a making “very clear” that talking about adjunct working conditions in relation to student learning conditions is a matter of public concern.

Over all, Maisto said the ruling was “a step forward in terms of affirming and explaining the right of adjuncts not to be retaliated against for their public advocacy on behalf of students and the profession.”

However, she added, “my fear is that some colleges and universities will, in the face of these kinds of decisions, become more unscrupulous in trying to figure out ways to get rid of adjuncts who speak out.”

She said she hoped colleges would “do the right thing” and acknowledge adjuncts’ right to improve their institutions.

Robert O'Neil, former president of and professor emeritus of law at the University of Virginia, agreed that the ruling had big implications for the "status of growing numbers of adjuncts and part-timers, and their treatment by academic institutions."

O'Neil, who is a free speech expert, also said the ruling represented another -- now third -- appeals court decision limiting the effects of Garcetti in an academic context, following cases involving full-time faculty members in the Fourth and Ninth Circuits. Together the decisions suggest that the Supreme Court's more liberal 1968 ruling in Pickering v. Board of Education remains a "dominant" influence in cases about public employee free speech, he said.

He called the most recent ruling a "true gem of a decision" with which he fully agreed, and which is likely not to be  overturned, given the "impressive" and bipartisan nature of the panel.