However, the twist to this case, if it can be proven that the targeting of the admitted and neglected students was racially-motivated, is that retaliation for opposing race discrimination is not within the reach of the Garcetti decision and Prof. Hickey would prevail.

The lesson for all in this, not highlighted anywhere that I can see in the AAUP’s discussion of Garcetti, is that only _internal_ complaints by a public employee are not protected by the First Amendment — yes, there is the posssible exception of “scholarship and teaching,” but most of these cases (e.g., Hong v. Grant and the instant case) involve administrative and governance matters which are not mentioned in the Garcetti ruling.

Therefore, what the faculty/staff or administrator in a public institution must do to protect his/her speech is to lodge the public interest complaint externally to the appropriate state or Federal agency or a legislator. That speech is then structurally protected speech — and also contractually protected for faculty in SUNY, BTW — and may not be retaliated against.

In fact, that also poses an interesting contractual issue in the SUNY context. Thomas Hickey was management-confidential as dean but, if he held a faculty appointment concurrently, then he also had the protection of the academic freedom article of the UUP contract which states that faculty, in their role as citizens, have the same rights as other citizens. I do not know whether that part of the SUNY contract has ever been tested through to arbitration in SUNY; I do not believe that the UUP has ever defended a single academic freedom grievance to arbitration. I personally know of two faculty members in SUNY (now retired) whose academic freedom grievances were negelected by UUP during their tenure, even when the state and UUP had agreed in writing to arbitrate.

In short, these are difficult times for the professor in a public institution who wishes to work within the institution to redress wrong-doing and maintain standards. However, if enough faculty in public higher education went to their legislators, et al. with complaints of this nature, then external pressure could be brought to bear and contractual or statutory rights protecting faculty from retaliation for valid governance-related speech could be instituted, enabling whistle-blower protection for employee speech on public matters to acquire other than work-for-hire status.

However, that may take long for many reasons, not the least of which is that the level of courage and concern for civil and statutory rights exhibited by the majority of the tenured faculty — or administrators — has not been very impresssive. Faculty as individual “entrepreneurs” has been the watchword of the past several decades.

Note, however, that the SUNY institution did not dare to dismiss Prof. Hickey’s faculty appointment. Thus, in closing, while a higher degree on a sheepskin does not necessarily embolden a sheep, the purpose of tenure in public institutions, from janitor and secretary to the endowed chaired professor, was precisely for that protection of job security.