Demers v. Austin Protects Faculty Speech that
Criticizes Administrative Policies in 9 Western States
So Why Isn't the Rest of the Country Onboard?
By David Demers*
Nearly 10 years ago, a Ninth Circuit Court of Appeals panel ruled that the Constitution protects faculty at public universities for on-the-job speech that deals with public issues related to teaching or scholarship, both inside or outside of the classroom.[1]
The case was Demers v. Austin (746 F.3d 402, 9th Cir., 2014), which carved out an exception to the highly controversial U.S. Supreme Court decision in Garcetti v. Ceballos (547 U.S. 410, 2006) — a ruling that denied free speech protection to public employees on the job. The five conservatives on the court basically ruled that it is better to deny public employees free speech than to punish law breakers (a prosecuting attorney had discovered that police fabricated information to obtain a search warrant).
In contrast, the Demers ruling extended constitutional protection to faculty speech that criticizes policies and decisions of university administrations. But to date that protection only extends to faculty in nine western states that are part of the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington state, Guam and Northern Mariana Islands). The rest of the 41 states have no protection.
The Demers ruling provides a great deal of protection for faculty who speak up at faculty meetings, committee meetings and in the hallways. So why isn’t the rest of the country onboard?
I’ll answer that question shortly. First, a disclosure and a little background.
I was the plaintiff in the case.
It started in 2007, when I was a tenured faculty member in the Edward R. Murrow School (now College) of Communication at Washington State University. I created a 7-Step Plan calling for the restructuring of academic units within the School and urging administrators to seek national accreditation of the mass communication programs, including journalism, my unit.
Administrators disliked the plan, partly because it called removing the communication studies unit out of the School. The university retaliated by denying me raises, removing me from committees, and refusing to allow me to go up for promotion to full professor.
In 2009, I sued four administrators. In 2011, the U.S. District Court for the Eastern District of Washington granted summary judgment in favor of the administrators, holding that the 7-Step Plan was penned as part of my official duties and, therefore, was not protected speech under Garcetti. The district court also held that the plan did not address a matter of public concern.
I appealed.
Writing for a three-judge panel in Seattle, lead judge William A. Fletcher declared that my plan was protected speech and also that it dealt with matters of public concern. “[T]eaching and academic writing are at the core of the official duties of teachers and professors,” he wrote. “Such teaching and writing are a ‘special concern of the First Amendment.’ ... We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court. ... (which) has repeatedly stressed the importance of protecting academic freedom under the First Amendment.”
The university declined to appeal the ruling to the U.S. Supreme Court and eventually paid me $120,000 to drop the lawsuit.[2]
The single most important consequence of the Demers ruling is the constitutional protection it offers for shared governance and service-related speech. “The assumption underlying the Appeals Court ruling is that teaching and scholarship are impacted by the structure of the organization and its resources,” I have written.[3] “And if those who do the teaching and scholarship have no say in how academic units are structured and how resources are distributed, then the academic search for truth, knowledge and understanding of the world will be compromised.”[4]
“Had the Ninth Circuit ruled the other way,” wrote legal scholar and blogger Kenneth White, a former prosecutor, “then the state could fire professors at will if it didn’t like, for instance, the stance that a history professor took about a historical event, or a political science professor took about a political dispute, or any professor took about an issue of academic governance on a committee.”[5]
But the courts in the other 41 states have basically ignored the Demers ruling and have continued to punish faculty under Garcetti. Although the American Association of University Professors and the Foundation for Individual Rights in Education have cited Demers in several amicus briefs, faculty organizations and attorneys representing faculty have not placed much importance on Demers.
I suspect that much of the problem stems from a lack of understanding and knowledge about the case. It did not generate a lot of news in 2014 nor has it since, with one exception that was just argued before the Ninth Circuit appeals court in Phoenix. The appeal stems from a federal district court in Reno, Nevada, which ruled that Dr. Lars Jensen, a professor of mathematics at Truckee Meadows Community College, did not have the right to criticize his administration’s decision to lower the rigor of math courses. He also distributed a document with his critical comments during a meeting. The appeal seeks to overturn the lower court's decision and obtain an injunction that will purge Dr. Jensen's files of adverse content intended to terminate him. A termination hearing was decided in his favor, but not until he suffered numerous due process and free speech violations. The appeal's court is expected to issue its ruling within the next year.
The Demers ruling clearly protects Dr. Jensen’s speech. The Jensen case also would solidify protection of shared governance and service-related speech on campus in the Ninth Circuit, enhancing the power of faculty on campus.
*David Demers retired from Washington State University in December 2012. He lives in Phoenix and continues to write books about civil liberties (see DrDavidDemers.com).
References
[1] Susan Kruth, “Demers v. Austin Shifts Circuit Split on Faculty Speech Rights,” Foundation for Individual Rights in Education (September 6, 2013), retrieved September 5, 2020, from <https://www.thefire.org/demers-v-austin-shifts-circuit-split-on-faculty-speech-rights>. The court issued two opinions, one in September 2013, and another on January 29, 2014, which replaced the original opinion.
[2] The suit was settled in October 2014.
[3] See the entry, “Demers v. Austin,” in Wikipedia.org.
[4] David Demers, Adventures of a Quixotic Professor: How One Man’s Lifelong Passion for Social Justice Bristles Bureaucracies and Sparks a Landmark Free Speech Ruling (Phoenix, AZ: Marquette Books, 2021), p. 371.
[5] Ken White, “Ninth Circuit Clarifies First Amendment Rights of Public University Professors,” Popehat (September 5, 2013), retrieved September 5, 2020 from <http://popehat.com/2013/09/05/ninth-circuit-clarifies-first-amendment-rights-of-public-university-professors>. Popehat is a legal blog.
Criticizes Administrative Policies in 9 Western States
So Why Isn't the Rest of the Country Onboard?
By David Demers*
Nearly 10 years ago, a Ninth Circuit Court of Appeals panel ruled that the Constitution protects faculty at public universities for on-the-job speech that deals with public issues related to teaching or scholarship, both inside or outside of the classroom.[1]
The case was Demers v. Austin (746 F.3d 402, 9th Cir., 2014), which carved out an exception to the highly controversial U.S. Supreme Court decision in Garcetti v. Ceballos (547 U.S. 410, 2006) — a ruling that denied free speech protection to public employees on the job. The five conservatives on the court basically ruled that it is better to deny public employees free speech than to punish law breakers (a prosecuting attorney had discovered that police fabricated information to obtain a search warrant).
In contrast, the Demers ruling extended constitutional protection to faculty speech that criticizes policies and decisions of university administrations. But to date that protection only extends to faculty in nine western states that are part of the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington state, Guam and Northern Mariana Islands). The rest of the 41 states have no protection.
The Demers ruling provides a great deal of protection for faculty who speak up at faculty meetings, committee meetings and in the hallways. So why isn’t the rest of the country onboard?
I’ll answer that question shortly. First, a disclosure and a little background.
I was the plaintiff in the case.
It started in 2007, when I was a tenured faculty member in the Edward R. Murrow School (now College) of Communication at Washington State University. I created a 7-Step Plan calling for the restructuring of academic units within the School and urging administrators to seek national accreditation of the mass communication programs, including journalism, my unit.
Administrators disliked the plan, partly because it called removing the communication studies unit out of the School. The university retaliated by denying me raises, removing me from committees, and refusing to allow me to go up for promotion to full professor.
In 2009, I sued four administrators. In 2011, the U.S. District Court for the Eastern District of Washington granted summary judgment in favor of the administrators, holding that the 7-Step Plan was penned as part of my official duties and, therefore, was not protected speech under Garcetti. The district court also held that the plan did not address a matter of public concern.
I appealed.
Writing for a three-judge panel in Seattle, lead judge William A. Fletcher declared that my plan was protected speech and also that it dealt with matters of public concern. “[T]eaching and academic writing are at the core of the official duties of teachers and professors,” he wrote. “Such teaching and writing are a ‘special concern of the First Amendment.’ ... We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court. ... (which) has repeatedly stressed the importance of protecting academic freedom under the First Amendment.”
The university declined to appeal the ruling to the U.S. Supreme Court and eventually paid me $120,000 to drop the lawsuit.[2]
The single most important consequence of the Demers ruling is the constitutional protection it offers for shared governance and service-related speech. “The assumption underlying the Appeals Court ruling is that teaching and scholarship are impacted by the structure of the organization and its resources,” I have written.[3] “And if those who do the teaching and scholarship have no say in how academic units are structured and how resources are distributed, then the academic search for truth, knowledge and understanding of the world will be compromised.”[4]
“Had the Ninth Circuit ruled the other way,” wrote legal scholar and blogger Kenneth White, a former prosecutor, “then the state could fire professors at will if it didn’t like, for instance, the stance that a history professor took about a historical event, or a political science professor took about a political dispute, or any professor took about an issue of academic governance on a committee.”[5]
But the courts in the other 41 states have basically ignored the Demers ruling and have continued to punish faculty under Garcetti. Although the American Association of University Professors and the Foundation for Individual Rights in Education have cited Demers in several amicus briefs, faculty organizations and attorneys representing faculty have not placed much importance on Demers.
I suspect that much of the problem stems from a lack of understanding and knowledge about the case. It did not generate a lot of news in 2014 nor has it since, with one exception that was just argued before the Ninth Circuit appeals court in Phoenix. The appeal stems from a federal district court in Reno, Nevada, which ruled that Dr. Lars Jensen, a professor of mathematics at Truckee Meadows Community College, did not have the right to criticize his administration’s decision to lower the rigor of math courses. He also distributed a document with his critical comments during a meeting. The appeal seeks to overturn the lower court's decision and obtain an injunction that will purge Dr. Jensen's files of adverse content intended to terminate him. A termination hearing was decided in his favor, but not until he suffered numerous due process and free speech violations. The appeal's court is expected to issue its ruling within the next year.
The Demers ruling clearly protects Dr. Jensen’s speech. The Jensen case also would solidify protection of shared governance and service-related speech on campus in the Ninth Circuit, enhancing the power of faculty on campus.
*David Demers retired from Washington State University in December 2012. He lives in Phoenix and continues to write books about civil liberties (see DrDavidDemers.com).
References
[1] Susan Kruth, “Demers v. Austin Shifts Circuit Split on Faculty Speech Rights,” Foundation for Individual Rights in Education (September 6, 2013), retrieved September 5, 2020, from <https://www.thefire.org/demers-v-austin-shifts-circuit-split-on-faculty-speech-rights>. The court issued two opinions, one in September 2013, and another on January 29, 2014, which replaced the original opinion.
[2] The suit was settled in October 2014.
[3] See the entry, “Demers v. Austin,” in Wikipedia.org.
[4] David Demers, Adventures of a Quixotic Professor: How One Man’s Lifelong Passion for Social Justice Bristles Bureaucracies and Sparks a Landmark Free Speech Ruling (Phoenix, AZ: Marquette Books, 2021), p. 371.
[5] Ken White, “Ninth Circuit Clarifies First Amendment Rights of Public University Professors,” Popehat (September 5, 2013), retrieved September 5, 2020 from <http://popehat.com/2013/09/05/ninth-circuit-clarifies-first-amendment-rights-of-public-university-professors>. Popehat is a legal blog.