Professor’s Public Criticism of University Department “Direction and Focus” Was a Protected Matter of Public Concern

September 18, 2013 | Bulletin No. 1037796.1

A university professor’s “broad proposals to change the direction and focus” of the university’s School of Communications were matters of public concern protected by the First Amendment.  Despite the professor’s public criticism of his employer, the Ninth Circuit held that an employee whose job included “teaching and academic writing” was entitled to broader protection.  Given the novelty of the constitutional issue, the university officials were entitled to qualified immunity from damages. (Demers v. Austin (9th Cir. 2013) __ F.3d ___.)

A tenured assistant professor at a public university alleged that he was given negative evaluations and a disciplinary warning based on his protected criticisms of the “direction and focus” of the School of Communications in which he worked.  The professor, who also sat on a faculty Structure Committee, had written a plan for improving the structure of the School and distributed that plan to various university officials and to the media.  The university argued that the professor’s criticism was not protected speech under Garcetti v. Ceballos, 547 U.S. 410 (2006). Garcetti held that a district attorney who publicly accused a police officer of lying was not protected because the statement was made in the performance of the attorney’s official duties.  The question addressed in the Demers case was whether that rule applies with equal force to teachers.  The Ninth Circuit held that it did not.

At least in the context of a university professor, this decision states that a job that involves “teaching and academic writing” includes a broader employee right to expression on matters of public concern that affect the institution of the university.  In this case, the professor offered “broad proposals to change the direction and focus” of the university, not specific personnel matters or personal complaints.  The court held that such proposals were matters of public concern protected by the First Amendment.

What This Means To You

  • Broader Free Speech protection to criticize the employer applies to university faculty whose job includes having opinions on topics of public concern.
  • General criticisms of the institution’s budget or the organizational efficiency are protected.
  • Specific personnel matters or personal complaints are not protected.
  • Since faculty criticism of an administrator’s direction on what to teach and how to teach raises difficult balancing questions, the courts should not second guess the judgment of the institution on such matters.
  • Due to the potential monetary liability for violating an employee’s constitutional rights, always consult with legal counsel if the discipline is based, even in part, on the employee’s speech.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Michael E. Hersher, Christian M. Keiner or Meghan Covert Russell | 916.321.4500