When does free speech become important? In the halls of academia, it often comes down along political and cultural lines. An endorsement of business mogul Donald Trump leaves academics and students running for a safe speech while a professor bullying a journalism student claims she was oppressed.

When academics do choose to litigate speech disputes with colleges and universities, they end up losing nearly three-quarters of the time, and Michael LeRoy, a professor of labor and employment relations at
University of Illinois
says that is a sign of growing tension between academic freedom and campus speech codes, without recognizing that these issues only go to action when they are the most flagrant sort of violation.

The paper's findings suggest that the First Amendment doesn't adequately protect academic freedom as fully as faculty "understand the concept of constitutionally protected speech," LeRoy said. Yet who is most likely to join in suppressing speech they find objectionable? Academics.

The scholars analyzed 210 lawsuits involving First Amendment claims by professors and college instructors against public colleges and universities from 1964-2014 and found that educational institutions won more than 73 percent of cases in federal and state courts. Faculty members lost most First Amendment cases involving publishing, classroom activities, protests, social commentary and campus criticism, according to the research.

"If you look at the trend lines, the speech rights of public employees are narrowing - and, coincidentally, this is occurring when public speech via social media has become so much more prevalent," LeRoy said.

The study also found that win rates varied by the geographic boundaries of the federal circuits. Courts located in the 7th Circuit, which encompasses Illinois, Indiana and Wisconsin, overwhelmingly ruled in favor of colleges and universities (88.9 percent) while schools won less frequently (63.6 percent) in the 2nd Circuit, which spans Connecticut, New York and Vermont.

According to LeRoy, the Supreme Court's 1968 decision in Pickering v. Board of Education was the tipping point in favoring an employer's constitutional right to regulate the speech of its workers.

"The Pickering case created a balancing test that later court decisions have since refined," he said. "After Pickering, courts were compelled to weigh the competing interests of public employees and employers on a case-by-case basis. While the precedent recognizes that public employees do not relinquish their First Amendment rights on the job, it does enable a government employer to regulate the speech of its employees differently from citizens. And as the data from my study show, courts usually weigh those interests in favor of universities and colleges."

Another case - 1994's Waters v. Churchill - gave institutions an additional advantage by allowing them, as public employers, to limit speech that administrators deemed "disruptive" to a public school.

"In the first court rulings after Waters, the faculty win-rate plummeted from 22.6 percent to 13.1 percent, and in appellate rulings, the rate dropped even more precipitously, from 14.5 percent to 3.3 percent," LeRoy said.

Although his dataset only considered public colleges and universities, LeRoy said private schools aren't immune to speech controversies, either.

"Faculty at private colleges and universities lack the constitutional protection of free expression in their workplace because the First Amendment doesn't cover speech at work for private institutions," he said. "If you work at a public university, then you are protected under the First Amendment. To that point, it's important to remember that slightly more than one-fourth of the plaintiffs in my dataset won their First Amendment claim. We shouldn't lose sight of that number.

The paper was published in the Journal of College and University Law.