I Can Say What I Want -- Right?


by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry


I have had a definite uptick in in inquiries about Free Speech and protecting tenure – and generally…just keeping your job. I am also being asked, “what it is you can do if you get fired, or retaliated against, for saying something the administration doesn’t like” – or sometimes for saying nothing at all when others believe you should speak out – or when some student is hurt by what you said in class, or in an email or text, or the way you said it, and they have reported you to the administration?


These really are some perilous times we live in, and this subject of what rights you possess, and what you can do to preserve those rights, can be super complicated. There are some simple guidelines that you can follow that will help you navigate what you can and cannot do, and what to expect if you are caught in the crossfire of accusations coming at you from the administration or students.


First, let’s talk general parameters. If you are a tenured professor, you do have more protections from losing your job, or having something bad happen to you, than if you didn’t have tenure. But hold on – this doesn’t mean that Academic Freedom gives you a free pass to shout out your political, or other, personally held beliefs. In fact, if you do just that, defending your eruption might be the focus of your next many semesters of employment, if you can hold on to your job.


But you say, wait a minute, how about the First Amendment to the U.S. Constitution guaranteeing that I can exercise my speech freely? If you are public {state or federal government} employee, you have the right to enjoy some limited protections. If you are a private college employee, you won’t enjoy the First Amendment protections afforded public employees. Private employees do have some protections afforded sometimes in their contracts, and in a limited way by the National Labor Relations Board via the National Labor Relations Act. (Remember, Texas state employees do NOT have contracts since it is the Legislature only that can enter into such contracts.)


Here is the bottom line, you, in my estimation, don’t want to haul off and sue your employer for retaliating against you for exercising your rights. Why? It’s a tough long fight that will cost you plenty of money with no certain outcome – ever. That doesn’t mean you don’t have recourse to right the wrong done to you. It just means you need to carefully count the cost before jumping into doing it. Institutions are used to litigation, they have litigation budgets that they expect to expend each year defending actions. And, for public employers in Texas, the Attorney General represents the institutions, AND those who you may want to also sue, for free. In sum, these are not fair fights. So, does this mean you just shut up, mind your own business, and be afraid to ever state your opinion about matters of public concern? No, that isn’t my warning to you.


I am suggesting that you count the cost as you proceed towards any resolution. And that “cost” may not only be what you have to pay some lawyer to take your action {and these cases are not contingency type representations – usually}. That cost can be having you labeled as THAT professor who sued his or her university. You better not need another faculty job soon, since that new prospective employer might be reluctant to hire someone who didn’t hold back and hauled off and filed a lawsuit against their present employer. That “cost” may also result in some rough sledding at a post tenure review proceeding.


Wait a minute, didn’t I just promise I would give you some simply guidelines to help keep you stay out of harm's way? Yes, I did, and here they are:

  1. Think before you speak out. It may seem really important that you weigh in on that subject – but just maybe it isn’t that important?

  2. Be very careful what you say in class and in your class communications. I often suggest that my clients limit their communication as much as possible on off curriculum topics, and certainly not text or tweet with students

  3. Think, think, think, before you act. I am an action person, then I consider my feelings and lastly, I think. This is the wrong order when considering public speech. Reverse that order and ALWAYS think first – and keep thinking. If you get into hot water over something you have said or written, get with a lawyer quickly. Some feel by hiring a lawyer they are admitting they have done something wrong. Don’t buy into that trap – a trained advocate can help keep you out of drowning in the deep end – since these issues can get super complex in a hurry.

Protected speech is like the conflict de jour – but that will pass. I don’t know about you, but I am ready for that to happen!


“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”

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