David Demers v. Erica Austin
746 F.3d 402, 2014 WL 306321, 37 I.E.R. Cas. (BNA) 1040 (2014)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The First Amendment protects speech by a public university professor related to scholarship or teaching, even if that speech is made pursuant to the professor's official duties; such speech is evaluated under the Pickering balancing test, not the Garcetti official duties test.
Facts:
- David Demers, a tenured associate professor at Washington State University's (WSU) Murrow College of Communication, served on the school's 'Structure Committee,' which was debating departmental reorganization.
- In early 2007, Demers wrote a two-page pamphlet called 'The 7-Step Plan' which proposed splitting the Murrow College's two faculties and increasing the influence of faculty with professional backgrounds.
- Demers widely distributed the Plan to the WSU President and Provost, media outlets, alumni, and colleagues, and posted it on a website associated with his private publishing company, Marquette Books.
- Demers's cover letters to university administrators stated the Plan was prepared by Marquette Books and included a footnote specifying he was not acting in his capacity as a professor.
- Demers also created drafts of a book, 'The Ivory Tower of Babel,' which he described as critical of academia, including events at WSU, and shared these drafts with the university as part of a sabbatical application.
- Following the distribution of the Plan, Demers alleges he was subjected to retaliatory actions by university administrators, including negative performance reviews, internal audits, and a formal notice of discipline.
Procedural Posture:
- David Demers sued Washington State University administrators in the U.S. District Court, alleging retaliation in violation of his First Amendment rights.
- The district court granted summary judgment in favor of the defendant administrators.
- The district court held that Demers's speech was made pursuant to his official duties and was therefore unprotected under Garcetti v. Ceballos.
- Alternatively, the district court held that Demers's pamphlet did not address a matter of public concern.
- Demers, as appellant, appealed the summary judgment ruling to the U.S. Court of Appeals for the Ninth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the First Amendment protect a public university professor from retaliation for speech related to scholarship or teaching, such as a proposal for departmental reorganization, when that speech is made pursuant to the professor's official duties?
Opinions:
Majority - W. Fletcher
Yes. The First Amendment protects a public university professor from retaliation for speech related to scholarship or teaching even when made pursuant to official duties, as the Supreme Court's decision in Garcetti v. Ceballos does not apply to this context. The court reasoned that Garcetti itself explicitly left open the question of its application to 'speech related to scholarship or teaching.' Applying Garcetti to academic speech would conflict with the Supreme Court's long-standing recognition of academic freedom as a 'special concern of the First Amendment,' as established in cases like Keyishian v. Board of Regents. Instead, such speech must be analyzed under the Pickering balancing test, which weighs the employee's interest in speaking on matters of public concern against the state's interest in promoting efficiency. The court found Demers's Plan, which proposed significant changes to a public university's curriculum and mission, addressed a matter of public concern. However, the court also held the defendant administrators were entitled to qualified immunity because the law in this area was not clearly established in the Ninth Circuit prior to this decision.
Analysis:
This decision establishes a significant academic freedom exception to the Garcetti rule within the Ninth Circuit, providing greater First Amendment protection to public university professors than to most other public employees. By holding that speech related to scholarship and teaching is governed by the more flexible Pickering balancing test, the court ensures that internal university debates on curriculum, structure, and academic mission can occur without fear of retaliation, even when such speech is part of a professor's job. This ruling fortifies the legal concept of academic freedom and will likely influence how other circuits approach similar First Amendment claims by academics in the post-Garcetti landscape.
