Demers v. Austin: Ninth U.S. Circuit Court Of Appeals Concludes University Professor’s Public Comments On Department Reorganization Plan Constitute Matters Of Public Interest Requiring First Amendment Analysis

The 9th Circuit Court of Appeals recently determined that a university professor’s writings and comments on proposed department reorganization required an analysis under the First Amendment. By so concluding, the appellate court reversed the lower court’s decision that the professor’s speech did not address matters of public concern. Demers v. Austin, 2014 DJDAR 1190 (Jan. 29, 2014).

At issue was the difficult legal question of whether the professor’s writings and comments constituted matters of public concern entitled to First Amendment protections or whether the writings instead were private institutional issues representing classic personnel struggles not entitled to First Amendment protection.

The 9th Circuit decided the case of Professor Demers from Washington State University who alleged First Amendment violations based on alleged retaliation from University administrators. The alleged retaliation included, among other allegations: negative annual performance reviews, two internal audits, and a formal notice of discipline.

The appellate court determined that the writings and commentary related to academic scholarship, academic writings, and teaching performed in accordance with “official duties.” The court observed that even writings about significant budget issues can fall within the protected area of “matters of public concern.” In its decision the court recognized that not all speech by a teacher or professor addresses a matter of public concern. The court gave examples such as, objectionsto closing laboratories and criticisms of a board of trustees process in selecting a president, that were viewed as essentially private grievances. However, in this case, the Court found the writings go to the organization of the Communications Department and substantially alter the nature of what was being taught by the department, as well as the composition of the faculty that would teach it.

As a result, the decision concluded that the legal analysis by the U.S. Supreme Court in Pickering v. Board of Education controlled the disposition of the case. Consequently, the summary judgment in favor of the University was reversed. (The judgment in favor of the administrators was affirmed on the separate grounds that the administrators were entitled to qualified immunity.) The case will now return to the trial court to determine: if the administration’s interest in the written commentaries were sufficient to deprive them of First Amendment protection; whether the commentaries were a substantial or motivating factor in any adverse employment action; and whether the defendants would have taken such employment action absent the protected speech.

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