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FIRE at the University of California, San Diego’s (UCSD’s) Thurgood Marshall College will walk out of classes this afternoon in a coordinated protest of the school’s recent decision not to rehire two teaching assistants (TAs), ostensibly because of their public criticism of the school. The decision raises serious questions about free speech and academic freedom at UCSD.
 
In addition to working towards doctoral degrees at UCSD, Scott Boehm and Benjamin Balthaser have been employed as TAs for Thurgood Marshall College’s since 2003 and 2004, respectively. By all accounts, Boehm and Balthaser’s performance in this capacity has been exemplary. Each has received praise from students and peers and glowing performance evaluations from DOC administrators, all of whom note Boehm and Balthaser’s unique dedication to the DOC program’s mission. Indeed, Boehm was awarded the Thurgood Marshall College Distinguished Teaching Award in 2006 for his outstanding work as a TA.
 
Despite these accolades, both Boehm and Balthaser were informed this past term by Dr. Abraham Shragge, the DOC program’s director, that they would not be rehired for the 2007-2008 academic year. According to Boehm and Balthaser, Shragge made clear to them in a meeting that the decision was unrelated to their job performance. Shragge to a reporter from InsideHigherEd.com, stating that while Boehm and Balthaser “get good ratings as teachers,” they “have gone all over the campus to stir up a lot of campuswide dissent.” Shragge told InsideHigherEd.com that he considers Boehm and Balthaser’s instigation of “campuswide dissent” to be “very damaging to the program,” and accuses the two of creating “a very hostile atmosphere.” In sum, then, Shragge publicly admitted that the decision not to rehire was based on a desire to stifle Boehm and Balthaser’s criticism of the DOC program.
 
What did this criticism allege? Boehm and Balthaser contend that in recent years, the DOC program has strayed from its mission of examining “the social construction of individual identity in contemporary America,” and that the content of the program’s curriculum has been diluted and weakened. The two have voiced their concerns publicly and privately. To promote a renewed commitment to what Boehm and Balthaser believe to be the program’s original mission, they helped form , as well as another student/faculty group dedicated specifically to promoting academic freedom. Additionally, Boehm and Balthaser organized a national conference held last year and devoted in part to discussing questions of academic freedom. At one of the conference’s panels, discussion centered on perceptions of the DOC program’s curricular drift. After the conference, Shragge verbally reprimande Boehm and Balthaser for speaking poorly of the program in public.
 
The university’s decision has sparked outrage among both graduate and undergraduate students at UCSD. On May 15, UCSD’s Graduate Student Association passed a stating that:

Whereas this is a cause for concern regarding the academic environment for all graduate student employees; Whereas this may set a dangerous precedent for the rights and role of graduate student employees in the larger UCSD community…the UCSD Graduate Student Association supports the immediate rehire of these two TAs.

And today, undergraduate students at Thurgood Marshall College are staging a walkout “in response to the program administration’s dismissal of two graduate teaching assistants Benjamin Balthaser and Scott Boehm.” According to a press release issued by the undergraduate student organizing the walkout, “the dismissal of Balthaser and Boehm for their political actions outside of class affects the education of all students in the university.”
 
FIREwrote a letter to UCSD Chancellor Marye A. Fox on May 16, asking UCSD to reexamine its decision. In the letter, we discuss the First Amendment rights of Boehm and Balthaser:

Because, as UCSD TAs, Balthaser and Boehm are public employees, their protections under the First Amendment when speaking on matters of public concern must be evaluated under the standard first enumerated by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the Court held that while teachers as public employees do not enjoy the complete protection of the First Amendment because of the government’s “interests as an employer in regulating the speech of its employees,” a balance must be struck between “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. If the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally,” then “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public,” and the teacher’s speech enjoys First Amendment protection. Id. at 568, 573. 

Applied to the facts at hand, the Pickering standard shows Balthaser and Boehm’s criticism of the DOC to be protected speech. Balthaser and Boehm have demonstrated that their ongoing criticism neither impedes their performance in the classroom nor interferes with the operation of the DOC or Thurgood Marshall College generally. After all, they publicly criticized the DOC at the national conference they held at Thurgood Marshall during the Spring 2005 term. Despite the fact that the criticism earned Balthaser and Boehm a verbal reprimand, the DOC administration still saw fit to award Boehm a Distinguished Teaching Award in 2006. Additionally, Boehm’s most recent “Evaluation of Teacher Performance” report, signed by Dr. Shragge and Assistant Director Pamela S. Wright at the conclusion of the Winter 2007 term, describes Boehm as “exemplary,” a “passionate advocate for DOC” and a “positive force within the college community.” Similarly, Balthaser’s Winter 2007 evaluation states that he “continues to be a highly valued asset to the DOC program.”

Pickering’s “public concern” standard was recently revisited by the Supreme Court in Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006). In Garcetti, the Court held that the government, as employer, has authority to impose restrictions on “speech that has some potential to affect the entity’s operations” and that statements made by employees “pursuant to their official duties” do not enjoy First Amendment protection as otherwise dictated by Pickering. Id. at 1961. (Emphasis added.) However, in so holding, the Court explicitly acknowledged the possibility that “that expression related to academic scholarship or classroom instruction”—precisely the speech at issue here—may “implicate[] additional constitutional interests…not fully accounted for by this Court’s customary employee-speech jurisprudence.” Id. at 1962. It is also important to note that the Court in Garcetti nevertheless reiterated Pickering’s holding insofar as it represented a rejection of an attempt by school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” By discontinuing the employment of Balthaser and Boehm because of their speech on a matter of public concern, Dr. Shragge has impinged upon the free expression rights owed to Balthaser and Boehm under the First Amendment and has unquestionably sought to “limi[t] [their] opportunities to contribute to public debate.”

In conclusion, our letter states:

[T]he facts strongly indicate that Dr. Shragge chose not to rehire Balthaser and Boehm solely because of their repeated criticisms of the DOC program. UCSD’s actions represent a shameful attempt to silence respected TAs whose views do not accord with those of the administration… By choosing not to rehire Balthaser and Boehm for the sole offense of publicly stating their disagreement with UCSD’s policies and practices, you have sent the message that dissenting opinions are intolerable, and that they alone may block one’s prospects for employment within the university.

FIRE has yet to receive a response. While the situation is fact-intensive, the bottom line here is that by all appearances—and by the public admission of their supervisor—Boehm and Balthaser were not rehired because of their criticism of the DOC program. Apparently, UCSD is willing to jettison award-winning teachers in the name of eliminating dissent and debate about curricular choices. That’s an infringement upon Boehm and Balthaser’s free speech rights as citizens, and threatens academic freedom on campus. UCSD should be held accountable.