What is incivility?

Incivility is a wide-ranging concept, including everything “from breaches of etiquette to professional misconduct, from general civil unrest to moral decay” (Andersson & Pearson, Reference Andersson and Pearson1999, p. 455). Within the workplace, incivility refers to acts that are rude but subdued, carrying ambiguous intent to harm. This ambiguity invites varied interpretations and allows instigators to deny malice. Examples include condescension, interruption, omission of common courtesies, and unprofessional terms of address. Many corners of academia are rife with incivility, with some faculty belittling graduate students, berating staff, cutting colleagues off in meetings, flaming each other on email, and making job candidates run a gauntlet of hostile or humiliating questions at their talks (all in the name of “excellence”). Unfortunately, in academic life as elsewhere, assholery abounds.

Pearson, Porath, and colleagues laid important groundwork on the topic of workplace incivility (summarized in Pearson & Porath, Reference Pearson and Porath2009), detailing three key features: norm violation, ambiguous intent, and low intensity. First, business ethicists contend that every organization has norms of interpersonal respect, reflecting shared understandings of morality and community. Uncivil conduct contravenes those norms. As Andersson and Pearson (Reference Andersson and Pearson1999, p. 455) explained, “What is considered to be uncivil in one organization may not be universally considered uncivil, yet we can still hold a common understanding of workplace incivility as behavior that disrupts mutual respect in the workplace.” This makes incivility a specific variety of workplace deviance, defined by Robinson and Bennett (Reference Robinson and Bennett1995, p. 556) as “voluntary behavior that violates significant organizational norms and, in so doing, threatens the well-being of an organization, its members, or both.”

A second key characteristic of workplace incivility, according to Pearson and colleagues, is ambiguous intent—an attribute that is, well, ambiguous. As Pearson, Andersson, and Wegner (Reference Pearson, Andersson and Wegner2001, p. 1400) observed, “One may behave uncivilly as a reflection of desire to harm the organization, to harm the target, or to benefit oneself, or one may behave uncivilly without intent.” The ambiguity of the concept of “ambiguous intent” stems from the fact that, where the instigator does act with deliberate plans to harm (unbeknownst to the target or bystanders), incivility bleeds into the category of workplace aggression, defined by Baron (Reference Baron, Griffin and O’Leary-Kelly2004, p. 27) as “any form of behavior directed by one or more persons in a workplace toward the goal of harming one or more others in that workplace (or the entire organization) in ways the intended targets are motivated to avoid.” To further complicate matters, the intent of the actor cannot be observed. If the target, for whatever reason, perceives harmful intentions, then the target will believe him/herself to be the victim of aggression. If not, then the victim may merely perceive incivility. If the behavior is sufficiently egregious, then the victim might attribute it to malice regardless of the actor’s actual motives. According to Pearson and colleagues’ definition, however, the conduct is still considered incivility when these malevolent goals are not transparent to at least one of the parties involved (Andersson & Pearson, Reference Andersson and Pearson1999; Pearson et al., Reference Pearson, Andersson and Wegner2001; Pearson & Porath, Reference Pearson and Porath2009).

A third distinguishing characteristic of workplace incivility is its “low intensity” (Andersson & Pearson, Reference Andersson and Pearson1999). Incivility does not entail physical assault, making it completely distinct from workplace violence (Baron, Reference Baron, Griffin and O’Leary-Kelly2004). Elaborating on the concept of low intensity, Pearson et al. (Reference Pearson, Andersson and Wegner2001, p. 1401) characterized incivility as having “lower magnitude of force, lower negative charge.” Cortina and Magley (Reference Cortina and Magley2009) operationalized this low-intensity criterion in terms of emotional appraisal: Incivility engenders mildly negative appraisals in targets. That is, targets might evaluate the behavior as insensitive, annoying, or bothersome, but they typically do not find it threatening; they do not fear for their physical safety. These appraisals, like the behaviors themselves, are low level but negative.

Importantly, characteristics such as “low intensity” and “low level” describe uncivil behaviors in isolation; over time these small individual acts can accumulate to trigger large effects. For example, research has demonstrated connections between uncivil experiences and employee distress, distraction, and dissatisfaction; substance use and abuse; and decrements in creativity, cooperation, commitment, and performance (for a recent review, see Cortina, Kabat-Farr, Magley, & Nelson, Reference Cortina, Kabat-Farr, Magley and Nelson2017; see also Schilpzand, DePater, & Erez, Reference Schilpzand, DePater and Erez2016). Many employee targets of incivility ultimately throw in the towel and seek employment elsewhere (Hollis, Reference Hollis2018). Uncivil conduct can also take a toll on third-party witnesses and workgroups (Lim, Cortina, & Magley, Reference Lim, Cortina and Magley2008; Miner-Rubino & Cortina, Reference Miner-Rubino and Cortina2004, Reference Miner-Rubino and Cortina2007). As Cortina (Reference Cortina2008, p. 57) noted, “These adverse individual and collective consequences have financial implications for employers, who must absorb the costs of employee distraction and discontentment, job accidents, substance abuse, sick leave, work team conflict, productivity decline, and turnover.”

In short, incivility comes with costs, for individuals and organizations alike. Some companies therefore take active steps to curb uncivil actions and promote civil ones, for example through civility statements, codes of conduct, civility language in policy manuals, or respectful workplace training programs. A prime example can be found in the respectful workplace training programs developed by the U.S. Equal Employment Opportunity Commission (EEOC): Leading for Respect (2017a; for supervisors) and Respect in the Workplace (2017b; for all employees). These programs focus on “respect, acceptable workplace conduct, and the types of behaviors that contribute to a respectful and inclusive, and therefore ultimately more profitable, workplace” (EEOC, 2017a, 2017b). Another example is the Civility Among Healthcare Professionals (CAHP) project, which aims to enhance the quality of the social environment at work by focusing on themes of community, engagement, and empowerment (Walsh & Magley, Reference Walsh and Magley2013). A third example is the Civility, Respect, and Engagement in the Workplace (CREW) program (Osatuke, Moore, Ward, Dyrenforth, & Belton, Reference Osatuke, Moore, Ward, Dyrenforth and Belton2009). This intervention involves workgroup members collectively generating lists of strengths, areas needing improvement, and plans of action that then get implemented, evaluated, and modified as needed over time. Note that all of these examples have a special focus on respectful, civil behaviors (not just uncivil ones)—a point we return to at the end of this article.

The dangers of civility

Interventions such as Leading for Respect and CREW assume that civility is a good thing for organizational life. Its inverse, incivility, can derail work and well-being, as noted earlier. Experts in workplace mistreatment (not only incivility but also harassment, bullying, abusive supervision, and the like) advocate civility and respect as progressive goals to strive for—essential components of a healthy, hostility-free work environment (e.g., Feldblum & Lipnic, Reference Feldblum and Lipnic2016; Osatuke et al., Reference Osatuke, Moore, Ward, Dyrenforth and Belton2009; Yamada, Reference Yamada2010). Cortina (Reference Cortina2008; see also Cortina, Kabat-Farr, Leskinen, Huerta, & Magley, Reference Cortina, Kabat-Farr, Leskinen, Huerta and Magley2013; Kabat-Farr & Cortina, Reference Kabat-Farr, Cortina, Fox and Lituchy2012) adds that cultures of respect can help protect against discrimination aimed at women, people of color, and other undervalued minorities. Respectful conduct is also an element of all statements and declarations regarding academic freedom and tenure issued by the American Association of University Professors (AAUPFootnote ¹) over the past century (Wilson, Reference Wilson2015). From this perspective, calls for civility serve the purpose of protecting the health and well-being of the academic workforce; the objective is to create dignified working conditions for all faculty, no matter their gender, race, age, or tenure status.

Some scholars, however, see a dangerous side to civility, especially when applied to academic behavior. Take, for instance, Wilson’s (Reference Wilson2015) account of the firing of biologist Leo Koch from UIUC in 1960; although the uncivil tone of Koch’s campus newspaper editorial was invoked as the primary motivation for his dismissal, the real reason according to many was that Koch’s views were distasteful to prominent members of the community. Incivility was merely a pretense to silence a faculty member with unpopular opinions.

Recent years have seen a number of critical essays on civility surface in the humanities. According to historian Michael Meranze (Reference Meranze2014), “The repetitive invocation of ‘civil’ and ‘civility’ to set limits to acceptable speech bespeaks a broader and deeper challenge to intellectual freedom.” Another historian, Joan Scott (Reference Scott2015), posits, “The notion of civility consistently establishes relations of power whenever it is invoked. Moreover, it is always the powerful who determine its meaning—one that, whatever its specific content, demeans and delegitimizes those who do not meet its test.” In other words, those in power get to dictate what counts as civil and then use that to discredit dissident voices. Also gesturing to issues of power, media studies scholar Andrew Calabrese (Reference Calabrese2015, p. 540) argues that civility can be “wielded as a weapon to limit, silence or otherwise control the free expression of the weak.” Once people are labeled uncivil, they lose credibility in the eyes of others, and their ideas lose purchase (Scott, Reference Scott2015). In short, these scholars argue that insidious agendas sometimes lurk beneath seemingly benign appeals to civility in the academy. They also point to the possibility that civility expectations violate First Amendment rights to free speech (more on this below).

Research on employee voice behaviors may also be relevant here. Van Dyne, Ang, and Botero (Reference Van Dyne, Ang and Botero2003) suggest that fear of negative consequences for oneself may lead someone to engage in “defensive silence.” If an attempt at prosocial voice might merely lead to the label “uncivil,” then one might choose to remain silent. Along these same lines, psychological safety has been linked to voice such that those who perceive there to be low safety are less likely to speak up (Detert & Burris, Reference Detert and Burris2007). A strong climate for civility should have many benefits, but it might also decrease psychological safety, even among those with no intent to harm others, possibly resulting in fewer voice behaviors. Efforts to reduce uncivil speech might therefore achieve their goals but at the expense of other, valued forms of speech.

It is also worth remembering that one can do harm to another even while behaving with great civility. Winston Churchill once famously said, “When you have to kill a man, it costs nothing to be polite.” So it is entirely possible to take someone down (or send them up, for that matter) but to do so with a respectful demeanor. As a less dramatic example, we have an entire literature on social undermining, which Duffy, Ganster, and Pagon (Reference Duffy, Ganster and Pagon2002) define as “behavior intended to hinder, over time, the ability to establish and maintain positive interpersonal relationships, work-related success, and favorable reputation” (p. 332). There are many ways to accomplish this without any loss of decorum. In short, incivility has a host of negative effects, but there are many ways to generate those same effects while maintaining a façade of respect.

In a nutshell, there are many lenses through which we can view (in)civility in employment. Though sometimes framed in binary terms (good–civility versus bad–incivility), the issue is anything but simple. Some view pro-civility efforts in public employment as a threat to constitutionally protected free speech, a topic we turn to next.

Pickering

We begin with Pickering v. Bd. Of Education of Township H.S. Dist. (1968). In Pickering, the plaintiff was a teacher who was fired from his position for sending a letter to the newspaper in connection with a proposed tax increase. The letter was critical of how the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. The U.S. Supreme Court held that the plaintiff’s rights to freedom of speech were violated with the termination and reversed all of the lower courts that had upheld his firing.

In this case, the school board held a hearing about Pickering’s letter and found that it was detrimental to the efficient operation and administration of the schools of the district, and that such a finding warranted his dismissal. The Supreme Court, however, found that subjects such as the funding of school systems were so important that

Pickering was a case of first impression for the high court, meaning that questions of interpretation arose that had not appeared in prior cases. As a result, for the first time, the court fashioned a test for lower courts to follow. Under this case, the Court held that a balancing test must be used to determine if a public employee’s speech was protected by the First Amendment. The test was in two parts. First, the speech must be regarding a matter of public interest. If it is, then the interests of the public body in efficiently maintaining the workplaceFootnote ² must be weighed against the employee’s right to speak on matters of public concern. It is in this second Pickering test that civility becomes relevant. Assuming that a statement is made regarding a matter of public interest, the less civilly the statement is made, the more likely it is to compromise the efficient maintenance of the workplace. If one addresses a matter of public concern but does it in a way that makes the workplace noticeably more acrimonious, then the result of the second Pickering test may supersede the result of the first. In any case, if the balance falls in favor of the employee, as it did in this case, then the speech was protected; if not, then it was not protected.

Connick

After Pickering, the U.S. Supreme Court did not have an occasion to take up this topic again until Connick v. Myers (1983). In Connick, a former assistant district attorney in New Orleans, Louisiana, claimed that her employment was terminated because she exercised her constitutionally guaranteed right of free speech. The U.S. Supreme Court disagreed and held that her discharge did not violate her constitutional rights.

In this case, Sheila Myers, an assistant district attorney, was informed that she would be transferred to prosecute cases in a different section of the criminal court, and she was opposed to the transfer. ADA Myers’s opposition was directly shared with several of her supervisors, including the district attorney, Harry Connick.Footnote ³ Despite her objections, Myers was still set to be transferred, so she again voiced her objections with one of her supervisors. The supervisor discussed the topic with her, along with other issues Myers raised. At the end of the conversation, Myers was informed that her views were not shared by others in the office.

After this latest discussion with her supervisor, Myers prepared a questionnaire seeking views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and employee perceptions of pressure to work in political campaigns. The next morning, Myers distributed the survey to several other assistant district attorneys. When a supervisor learned of the distribution, he phoned Connick and told him that Myers was creating a “mini-insurrection” in the office. Connick returned to the office and told Myers that she was being terminated for refusing to accept the transfer, and she was also told that her distribution of the survey was considered an act of insubordination.

Myers sued, claiming that her First Amendment rights were violated by the termination, and the case eventually made it to the U.S. Supreme Court. The Court began its analysis by citing Pickering and noting the issues that it resolved and the test that was formed in its decision. In this case, the Court noted that the emphasis in Pickering on the right of a public employee “as a citizen, in commenting upon matters of public concern” was not accidental. In particular, the Court stated that while public employees have rights, there must also be a “common sense realization that government offices could not function if every employment decision became a constitutional matter.”

After reviewing the facts of the case, the Court held that when a public employee speaks not as a citizen upon matters of public concern but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

Although the court in Connick performed a Pickering analysis to determine if Myers’s rights were violated, it found itself needing to create a new test to determine if speech was public or private. Here, the Court found that whether an employee’s speech addresses a matter of public concern must be determined by the “content, form, and context of a given statement, as revealed by the whole record” (Connick v. Myers, pp. 147–148). In reviewing the survey distributed by Myers, the Court found that only one of the questions posed by Myers dealt with matters of public concern. The Court stated that the “questions reflect one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre” (p. 148).

Garcetti

After Connick, the Supreme Court did not revisit this topic again until 2006, in Garcetti v. Ceballos (2006). Coincidentally, Garcetti also pertained to an assistant prosecutor, but this time it was in California not Louisiana. Ceballos, the respondent in this case, was a deputy district attorney who was terminated for writing a memorandum, which was part of his job, that recommended dismissal of a case due to governmental misconduct. The question presented to the Court was whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.

Before reaching the U.S. Supreme Court, the Court of Appeals for the Ninth Circuit ruled on the case and found that the Ceballos memo, which recited what he thought to be governmental misconduct, was inherently a matter of public concern and reversed the lower court; that court had ruled against Ceballos by holding that the memo was part of his official duties and was therefore not public speech entitled to constitutional protection. The Supreme Court, however, reversed the Court of Appeals and noted that the appellate court did not consider whether the speech was made in Ceballos’s capacity as a citizen.

In the Garcetti case, the Court found that the controlling factor was the fact that his expressions were made pursuant to his duties, which made his speech not one of a citizen but one of an employee. The Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline” (Garcetti v. Ceballos, 2006, p. 421). It seems, therefore, that the Garcetti decision set a new precedent. Statements pursuant to official duties are not protected regardless of their civility, their effect on the workplace, and so on.

What is also important about this case is found in the dissent by Justice Souter. In his dissent, Justice Souter showed great concern about how the majority’s opinion could be used to infringe upon the teaching or publishing activities of academics. He stated: “This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to … official duties’” (Garcetti v. Ceballos, 2006, p. 438).

Justice Souter’s dissent shows a real concern for academic freedom. If a university professor’s speech is never protected while teaching or publishing because such actions are inherently part of the professor’s employment, then a professor could be terminated for anything said in the classroom or anything written in a scholarly article (even an IOP piece!). The majority opinion in Garcetti recognized that their analysis could have negative implications for academic speech, but the majority chose not to address the issue because that was not a question that was before them. They saved the discussion for another day.

Gorum

Two cases, Gorum v. Sessoms (2009) and Demers v. Austin (2014), illustrate the application of the Pickering and Garcetti analyses to public academic employment; they also expand on elements those analyses. In Gorum, a tenured professor sued, claiming that he was terminated for views that he expressed in three instances and that the reason stated by the university for his termination—an audit of his submitted grade changes found that he had improperly changed grades for 48 different students—was merely a pretense.

Dr. Gorum claimed that three acts of speech were the reasons for his dismissal: his objection to the Faculty Senate of the selection of Dr. Sessoms as university president; his advising of a student-athlete who violated the University’s zero-tolerance policy against the possession of weapons; and Gorum’s rescission of an invitation to Sessoms to speak at a student group’s prayer breakfast. Although it is clear that the court found Gorum’s arguments to be mere pretexts that had little to no merit, it still engaged in an analysis of each of Gorum’s arguments.

The court began by looking to the test set forth in Garcetti. In order for his speech to be protected under the First Amendment, Gorum’s speech must have been made as a citizen not an employee, it must have involved a matter of public concern, and the government must not have had an adequate justification for treating the speaker differently than other employees. Gorum was unable to meet this test.

Under Garcetti, a public employee does not speak as a citizen when he makes a statement pursuant to his official duties. Simply put, the First Amendment does not shield employees from the consequences of expressions that they make pursuant to their professional duties. To determine whether Gorum’s speech was related to his official duties, Gorum claimed that he was speaking as a citizen, not as a professor, when he assisted the student-athlete because such assistance went beyond the duties specified in the collective bargaining agreement with the university. The court, however, noted that the determination of whether speech is part of an official duty or not is a practical one and that “formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform” (Gorum v. Sessoms, 2009, p. 185). The court continued by noting its previous decision that a claimant’s speech might be a part of his official duties if it relates to “special knowledge” or “experience” acquired through the job (Gorum v. Sessoms, 2009, p. 185, citing Foraker v. Chaffinch, 2007). Under this analysis, the court ruled unanimously that Gorum, being the de facto advisor to all students with disciplinary problems, made his speech in support of the student-athlete as part of his official duties. Further, his revocation of the invitation to Sessoms to speak at a prayer breakfast was also part of his official duties because the Faculty Senate bylaws included faculty involvement with and advising of student organizations and clubs as part of every faculty member’s duties.

The court also found that Gorum’s speech was not speech about a public concern because it did not generally address a social or political concern of the community. Finally, the court held that Gorum failed to prove that his speech, even if it was protected speech, was a substantial factor in Sessom’s decision to terminate his employment.

The court briefly touched on the fact that the Supreme Court in Garcetti did not determine whether the “official duty” analysis would apply to speech related to teaching or scholarship. Citing Garcetti, the court recognized that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by … customary employee-speech jurisprudence” (Gorum v. Sessoms, 2009, p. 186, citing Garcetti v. Ceballos, 2006). Although the court mentioned this concern, it found that Gorum’s speech was clearly not related to scholarship or teaching, which alleviated further analysis in the case.

Demers

Then, in 2014, a court finally decided the issue of how the First Amendment applied to teaching and writing on academic matters. With this issue never having been decided before, the Court of Appeals for the Ninth Circuit, in Demers v. Austin (2014), held as a matter of first impression that the Pickering test, rather than the Garcetti test, applied to academics regarding their teaching and writing on academic matters.Footnote ⁴

In the case, Demers contended that Washington State University (WSU) retaliated against him by giving him negative performance reviews that contained falsehoods, by conducting two internal audits, and by entering a formal notice of discipline. He claims that he essentially went from being a popular professor to one marked for termination. His argument was that the university retaliated against him because of his publication of a seven-step plan, which was a plan to divide the Edward R. Murrow College of Communication (“Murrow School”) into two schools, and his distribution of draft chapters of his book online that contained some negative commentaries about WSU.

The court noted that Dr. Demers was a member of the Structure Committee of the Murrow School, so part of his job as a professor was to help determine whether to keep the school as a single college or to divide it into two schools—one for Mass Communications, with professional and practical applications, and one for Communication Studies. Demers supported the idea of dividing the Murrow School into two schools and strengthening the Mass Communications faculty by appointing a director with a strong professional background. Although the court does not specifically state this, it is clear that Demers, a former professional reporter, was angling for the director position because he not only supported the idea, but, in a letter to the Provost, he offered to donate $100,000 to the university to achieve this goal. The letter also noted how he sent his seven-step plan to members of the print and broadcast media, administrators, some colleagues, and others. In addition, he posted his plan on his private company’s website. He did not, however, submit the seven-step plan to the Structure Committee.

The university defended against the First Amendment claim by arguing that under Garcetti, Demers’s speech was part of his job as a professor, which therefore meant that it was not “private speech” that was entitled to First Amendment protections. Under this argument, it did not matter whether Demers’s allegations were true or not, because if his speech was not private speech, there was no protection for it. Demers argued that his seven-step plan and the draft chapters of his book were not pursuant to his official duties at the university and therefore constituted “private speech” entitled to protection. He also argued in the alternative that Garcetti did not extend to speech and academic writing of a publicly employed teacher. The court agreed with his second argument.

The Demers court noted that “teaching and academic writing are at the core of the official duties of teachers and professors. Such teaching and writing are ‘a special concern of the First Amendment’” (Demers v. Austin, 2014, p. 411, quoting Keyishian v. Bd. of Regents of the Univ. of the State of NY, 1967). The court concluded that if it applied Garcetti to teaching and academic writing, such an application would directly conflict with the important First Amendment values noted by the U.S. Supreme Court, which is deeply committed to safeguarding academic freedom. In quoting Shelton v. Tucker, a Supreme Court case from 1960, the court stated that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools” (Demers v. Austin, 2014, p. 411).

The court concluded that Garcetti did not and could not apply to teaching and academic writing performed pursuant to official duties. Such speech is protected under the analysis first provided in Pickering. Under Pickering, a two-part test was promulgated for other sorts of speech. First, the employee must show that the speech covered matters of “public concern” and second that the employee’s interest in commenting on such matters must outweigh the interest of the State in promoting the efficiency of the public services it performs through its employees.

In determining if Demers’s speech related to matters of public concern, the essential question was whether the speech addressed matters of public as opposed to personal interest. In its analysis, the court took great care to state that (Demers v. Austin, 2014, p. 416) “protected academic writing is not confined to scholarship. Much academic writing is, of course, scholarship. But academics, in the course of their academic duties, also write memoranda, reports, and other documents addressed to such things as budgets, curricula, departmental structures, and faculty hiring.” The court reviewed the seven-step plan and easily concluded that this plan, although not submitted to the Structure Committee, was part of Demers’s official duties as an academic at a public university and clearly related to matters of public concern. The plan contained serious suggestions about the future course of an important department of WSU, allowing the court to conclude that Demers’s speech was of public concern.

Unfortunately, the court did not apply the second part of the Pickering test in this case, because such an analysis was not conducted by the trial court. The trial court had applied Garcetti, not Pickering, and did not make any findings of fact relating to whether the university had a sufficient interest in controlling or sanctioning Demers’s circulation of his seven-step plan. The case was remanded back to the trial court for further findings in line with the holding of the Court of Appeals for the Ninth Circuit and has since been settled under undisclosed terms.

Understanding the progression of case law from Pickering to today only allows us to scratch the surface on the regulation of speech in the public academic workplace. Take, for example, a professor at a public university who refers to a student of Jewish descent by using an anti-Semitic slur while teaching a class. Is that speech protected by the First Amendment? Does the fact that the professor believed that the student thought it was funny make a difference? Another example would be one faculty member yelling obscenities at another during a meeting. Would that be protected under the First Amendment, or is that outside of its protective shield? It is not clear how the high court would or should rule on these matters. Before we tackle these issues, however, let us return to the case of Professor Steven Salaita that began our article (Salaita v. Kennedy, 2015).

Salaita

Salaita had been offered an associate professorship at the University of Illinois, so he quit his position at Virginia Polytechnic Institute and State University and moved his family to Illinois. After he resigned from Virginia Tech, a skirmish broke out between Palestine and Israel that resulted in the death of approximately 2,100 Palestinians, including more than 500 children. Salaita took to his personal Twitter account and was highly critical of Israel’s actions, using profanity-laden rhetoric in his criticism. In response to these tweets, the University of Illinois initially supported his right to speak on topics of public importance but eventually changed its mind after students complained and alumni threatened to pull donations. One missive to the university by a “multiple six-figure donor” stated that monetary support would cease due to Salaita and his tweets (Salaita v. Kennedy, 2015). Eventually, the university’s Board of Trustees met and voted 8–1 to deny his appointment as a professor, despite the fact that he had already quit his previous post and relocated to Illinois. Were Salaita’s posts on social media protected speech? His litigation against the University of Illinois eventually settled privately, so no court had an opportunity to flesh out all of the facts in the case and make a final ruling.

First Amendment cases are highly fact specific, so it is difficult to determine whether or not certain conduct has protections without delving into the myriad facts emerging from every situation. All of the cases reviewed above pertained to employees in the public sector—prosecutors, professors at state institutions, and so on. The reason for this is simple yet often overlooked. Absent contractual or other concessions given by private institutions to the professors they employ, the First Amendment only protects people from actions of the government and has no ability to limit or regulate purely private conduct. In other words, the First Amendment does not generally protect professors from employer discipline at private colleges and universities. If conduct appears “private” but is in actuality a “state action,” then First Amendment protections may apply. Such situations must be reviewed on a case-by-case basis in order for such a determination to be made, because exceptions to the law are sometimes more abundant than the law itself.

University policies, principles, and tenure

Again we return to the AAUP and its statements, which have long shaped policy in American higher education. Over the years, civility has waxed and waned in importance in AAUP codes of faculty conduct. As Wilson (Reference Wilson2015) explains, the hubbub over the firing of University of Illinois professor Leo Koch in 1960 led to important changes in the AAUP Statement of Principles on Academic Freedom and Tenure. At the time, UIUC claimed that Koch was fired not because of what he said in the campus newspaper, but rather how he said it. In a nutshell, Koch was fired for incivility (or so it was claimed). In a way, this was consistent with the AAUP Principles that existed at the time. The 1940 version of the Principles “imposes special obligations” on faculty regarding not only accuracy but also tone. In the wake of the Koch affair, the 1964 version of the Principles merely “calls attention to special obligations.” As Wilson puts it, in the 1964 version, the obligation “rests on the conscience of individual faculty members rather than being imposed by the institution” (p. 9). Put another way, one could square the Koch firing with the 1940 Principles but not with the 1964 Principles.

In response to its censure over the Koch firing, UIUC put in place some of the strongest academic freedom protections in the country (Wilson, Reference Wilson2015). These statutes do state that professors “should be mindful” of the need to act with dignity befitting the institution, and it can certainly be argued that Salaita was not mindful of this need in his tweets about Israel. However, the statutes go on to say that if the university president feels that a professor had failed to exhibit the appropriate level of dignity, then he or she can “publicly dissociate the Board of Trustees and the University from and express their disapproval of such objectionable expressions.” In other words, the president can scold uncivil faculty and denounce them publicly, but not fire them.

This leads us to the related topic of tenure. University statutes are often guided by language in various AAUP documents. As a result, local protections afforded by tenure create an additional layer of insulation for any foul-mouthed faculty member. It is difficult enough to fire or even sanction a tenured faculty member who engages in acts of aggression or abuse because tenure stipulations, understandably, tend to err on the side of academic freedom. If more severe behaviors with less ambiguous intent are protected by tenure, then incivility seems utterly beyond the long arm of the university law.

Collective bargaining

Public university professors sometimes unionize and engage in collective bargaining with the institution.Footnote ⁵ Such collective bargaining agreements (CBAs) often deal with many aspects of employment, including the procedures for when the institution seeks to suspend, terminate, or otherwise discipline a professor. CBAs could limit the free speech rights of the faculty and also provide them with due process so that they have an opportunity to contest any attempts to curtail their speech.

This idea then begs the question of whether people are able sign away their constitutional rights in a contract. What may surprise many is that constitutional rights can be contracted away so long as certain criteria are met. Speech rights are not absolute (Tennessee Secondary Sch. Athletic Ass’n v. Brentwood, 2007). Constitutional rights may be contractually waived where the facts and circumstances surrounding the waiver make it clear that the party foregoing its rights has done so of its own volition, with full understanding of the consequences of its waiver (Erie Telecomm., Inc. v. City of Erie, 1988). It is the facts and circumstances of each particular case, including the background, experience, and conduct of the waiving party, that determine whether a waiver of constitutional rights was done voluntarily, knowingly, and intelligently (Johnson v. Zerbst, 1938). In a criminal case, the accused may have the “right to remain silent,” but that does not mean that she or he has the absolute obligation to do so.

Knowing that a professor’s free speech rights can be waived, an institution could seek to include in its CBA with the faculty a limitation or waiver of such rights. Professors that are subject to the CBA would have their rights limited in whatever way the CBA states. With such a contract, an institution could discipline or even terminate a professor due to that professor’s speech. The union, through the CBA, would almost certainly require that the institution give its members due process and an opportunity to challenge any such discipline. Further, the CBA could limit the type of discipline that can occur due to a professor’s speech. Discipline for speaking could be limited by the CBA to prevent the institution from wielding too much power over the professors. Such discipline could range from proverbial slaps on the wrist (e.g., statements in a professor’s employment file) to substantially harsher punishment (e.g., removal from a position of leadership).

Although it is possible for a public institution to seek to limit faculty speech through a CBA, it is extremely unlikely that a union representing professors would ever grant such a concession to a university; it is also unlikely that a university would desire to stifle academic debate or participation in the marketplace of ideas (or at least to appear to do so). The more realistic scenario is that a union would seek to buttress its members’ speech rights through the CBA. Contracts are between two or more entities, and each side must give something up in order for an agreement to have consideration and be legal and enforceable. A CBA could include protections for professors in the form of absolute proscriptions from employee discipline due to an employee’s exercise of freedom of speech. Further, the CBA could (and almost certainly would) include provisions that require any disciplinary action against a professor be subject to due process in order to allow the union to challenge any adverse actions through a grievance process.

Through the lens of the law

Let us consider a few possible scenarios, all based on experiences of one or more of the authors. What would the law have to say about these scenarios, especially if the person in question were fired for this behavior, and then sued the university about this disciplinary action? And for that matter, what would I-O psychology say?

1. 1. A faculty member is in the audience of a conference panel discussion. Another member of the audience directs a question to the panel. The first faculty member cuts off the questioner, saying to the room, “That’s ridiculous” and then asks his own question of the panel. This is a reoccurring behavior, though the target is always different.

2. 2. In one division of a department, faculty are in the habit of being openly patronizing and dismissive of the conclusions drawn by job candidates during their job talks.

3. 3. In faculty meetings, a faculty member repeatedly singles out another faculty member for public criticism regarding grade inflation. The criticism is delivered with a contemptuous tone and insulting words—sometimes including profanity.

4. 4. In a comment to an IOP focal article authored by three siblings, a dissenter muses about the hereditary twists and turns that would have resulted in three people being of the same misguided mind on the topic of the article.

From a legal perspective, the behaviors in each of these scenarios might or might not be construed as conduct protected by the First Amendment. But they might also be seen in such a way that they pass both parts of the Pickering test. If so, then they may be protected by the First Amendment, and therefore not “fireable offenses” (or even punishable ones). Let us consider them one at a time.

Through the lens of I-O psychology

What conclusions would we arrive at if, instead of a legal lens, we viewed these situations from I-O perspectives, such as employee well-being or turnover? It might be entirely legal for faculty to insult job candidates or interrupt incessantly in meetings, but that makes the behavior no less rude. Everyday disrespect can poison the institutional environment for not only the target but also witnesses (Hershcovis et al., Reference Hershcovis, Neville, Reich, Christie, Cortina and Shan2017), workgroups (Lim et al., Reference Lim, Cortina and Magley2008), and even students (Caza & Cortina, Reference Caza and Cortina2007). Well-being suffers. Work suffers. Education and learning suffer. As a result, valuable faculty and staff leave to find employment elsewhere (Cortina et al., Reference Cortina, Kabat-Farr, Leskinen, Huerta and Magley2013, Reference Cortina, Kabat-Farr, Magley and Nelson2017); they do not stick around to see their students and colleagues disparaged, and they certainly do not want to become the next target. The law should not be our only guide post, and perhaps not even our primary guide post, when deciding what behavioral ideals to embrace in university life.

Public institutions may be legally prohibited from mandating respectful conduct on campus, but they can certainly encourage it. They can also discourage disrespect and do so in ways that do not silence critical speech. Many faculty members set ground rules in their classrooms, teaching students how to disagree respectfully, debate without insult, and levy challenges without launching into venomous attacks on their peers. Why not set similar ground rules in faculty colloquia and committee meetings? Why not make clear to colleagues that mockery is verboten in thesis defenses—that one can press students to defend their ideas without ridiculing them or raking them over the coals? Disrespect in the academic context can be deeply counterproductive, failing to advance the teaching, research, or service mission of the public university (assuming assholery is not part of that mission).

It is also important to recognize that academic leaders can take many steps to discourage disrespectful behavior without engaging in the formal actions that can trigger litigation. Although it is true that the threat of dismissal is a lever for behavior change, we know from I-O psychology that there are others. There are perks that can be withheld from those who are relentlessly rude. There are mission statements and goal statements that can establish norms of respect. There are performance appraisals that can include assessments of interpersonal citizenship. There is search committee training, teaching how job candidates can be evaluated for excellence without resorting to rudeness. There is coaching to help faculty learn new ways of communicating and resolving conflicts. Our point is that academic leaders need not resort to termination, demotion, or other formal discipline when seeking to confront and curtail rude conduct. I-O psychology offers many practical strategies that can be deployed to cultivate a culture of dignity in academic work.

Rather than solely dwelling on prohibition of bad behavior, interventions in academic (and other) workplaces can also promote the positive. Supplement the “do not be naughty” admonishments with accolades for people who stand out for being exceptionally kind. Universities routinely recognize faculty for excellence in research and teaching; why not add awards for outstanding acts of altruism or humanity? Attach a cash prize to show that the institution places a premium on respect. Let faculty and staff at all levels determine who wins such awards so that it is not just those “at the top” who decide what counts as kind. As mentioned earlier, there are also training programs (e.g., the EEOC’s Respect in the Workplace and Leading with Respect, 2017a, 2017b) that foster shared understandings of respect and inclusivity. In short, it is important that organizations (in academia and beyond) tend to the social side of work: Define it, promote it, reward it.

Research it as well: Apply the tools of I-O psychology to study respectful workplace interventions in higher education. We need to know more about what works, what does not, and why. We also need to know this for the academy—a somewhat unique organizational context. As noted earlier, some academic venues are known for being contests of condescension and interruption. In addition, faculty tend to be fiercely protective of their own autonomy (Keashly & Neuman, Reference Keashly and Neuman2010). Many do not hesitate to impose a “code of conduct” on students, but they bristle at the suggestion that such codes be applied to themselves. Is it possible to reign in the rudeness of such an independent breed of employee without stomping on their free speech rights? This is an empirical question and one that is ripe for I-O research.

Another dynamic deserving empirical attention is the “star culture” found in many institutions, where some faculty are just so brilliant, so celebrated, or so successful at securing grant dollars that they feel above the rules—entitled to behave badly if they so choose (National Academies of Sciences, 2018). Because stars can and do boost departmental reputations and rankings, should we tolerate their dickishness? Look the other way when their insults undermine colleagues’ work and well-being? Complicating matters further, star-perpetrated incivility may pack a larger punch than incivility enacted by others. We see hints of this in research on top-down hostility. For example, Hershcovis and Barling (Reference Hershcovis and Barling2010) meta-analyzed 55 independent studies to compare effects of workplace aggression perpetrated by higher ups (i.e., supervisors) versus coworkers. They found that, compared to coworker aggression, supervisor aggression has a significantly stronger relationship to the targeted employee’s job satisfaction, job performance, commitment to the organization, thoughts and intentions of leaving the organization, and general health. From this, we might surmise that incivility from academic superstars, who tend to have a lot of clout, is especially problematic in interfering with “efficient maintenance of the workplace.” Such conduct may therefore fail the second prong of a Pickering analysis. This illustrates how I-O research may be brought to bear on legal questions surrounding civility and free speech in employment. As one anonymous reviewer noted, legal considerations often shape individual and institutional responses to such matters, even in the absence of actual litigation. I-O psychology can help.