Gorum v. Sessoms
2009 U.S. App. LEXIS 6408, 561 F.3d 179, 28 I.E.R. Cas. (BNA) 1547 (2009)
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Rule of Law:
Speech by a public employee made pursuant to their official duties, rather than as a private citizen, is not protected by the First Amendment. Furthermore, speech that addresses a personal grievance or internal administrative matter, rather than a social or political concern of the community, is not on a matter of public concern and is therefore unprotected.
Facts:
- Wendell Gorum was a tenured professor and Mass Communications Department chair at Delaware State University (DSU).
- In 2002, Gorum, who had authored the DSU disciplinary code, advised a student athlete, DaShaun Morris, during a university disciplinary hearing concerning a weapons possession violation.
- In 2003, Gorum voiced his opposition within the Faculty Senate to the selection of Allen Sessoms as the new University President.
- In 2004, Gorum served as faculty advisor to the Alpha Phi Alpha fraternity and, as chair of a prayer breakfast speakers committee, rescinded an invitation that had been mistakenly extended to President Sessoms.
- Later in 2004, a DSU audit revealed that Gorum had improperly changed grades for 48 students in his department without the permission of the professors-of-record, including changing withdrawals and failing grades to passing grades.
- When confronted, Gorum admitted to changing the grades but claimed he had authorization and that such practices were common.
- Following an internal disciplinary process, President Sessoms recommended Gorum's dismissal, and the DSU Board of Trustees voted unanimously to terminate his employment in 2005.
Procedural Posture:
- Following an internal investigation and disciplinary process, Delaware State University's (DSU) President, Allen Sessoms, recommended Wendell Gorum's dismissal, and the DSU Board of Trustees terminated Gorum's employment.
- Gorum sued Sessoms and the Board in the U.S. District Court for the District of Delaware, alleging his termination was retaliation in violation of his First Amendment rights.
- The District Court (trial court) granted summary judgment in favor of Sessoms and the Board, finding Gorum's activities were not protected by the First Amendment and were not a substantial factor in his termination.
- Gorum (appellant) appealed the District Court's grant of summary judgment to the U.S. Court of Appeals for the Third Circuit, with Sessoms and the Board as appellees.
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Issue:
Does a public university professor's speech, consisting of advising a student in a disciplinary matter and managing a student group event, constitute protected speech under the First Amendment when those activities are performed as part of the professor's official duties and do not address a matter of public concern?
Opinions:
Majority - Ambro, Circuit Judge
No. A public university professor's speech is not protected by the First Amendment when it is made pursuant to their official duties and does not address a matter of public concern. The First Amendment protects employees when they speak as citizens, not when they perform their job responsibilities. Here, Gorum's actions were not protected because they fell within the scope of his professional duties. His assistance to student Morris stemmed from his 'special knowledge' of the school's disciplinary code and his role as the 'de facto advisor to all DSU students with disciplinary problems.' His handling of the speaking invitation was part of his official duty as a faculty advisor to a student organization. Furthermore, neither activity constituted speech on a matter of public concern; the student's disciplinary issue was a personal grievance, and the invitation was a private, internal administrative matter. The court also found no evidence that President Sessoms was even aware of Gorum's actions, meaning they could not have been a 'substantial factor' in the decision to terminate him. Finally, the university demonstrated it would have terminated Gorum regardless due to his 'highly reprehensible' misconduct of improperly changing 48 student grades, which undermined the university's academic integrity.
Analysis:
This decision clarifies the application of the Garcetti v. Ceballos 'official duties' test to the academic setting of a public university. It demonstrates that even in a university environment, where academic freedom is a concern, a professor's speech is not protected if it is part of their administrative or advisory job functions rather than speech as a private citizen on a matter of public concern. The ruling reinforces that the First Amendment does not protect public employees from discipline for engaging in serious misconduct, even if they try to frame their actions as protected speech. It signals that courts will take a practical, rather than purely formalistic, view of what constitutes an employee's 'official duties.'
