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Important Decision for Free Speech in Academia

By William Peacock, Esq. on September 09, 2013 | Last updated on March 21, 2019

He may get nothing out of this case, but former Washington State University tenured professor David Demers' wrangling with the school over free speech and retaliation has set a legal precedent that could protect similarly situated professors, and lead to damages, for future acts that are hostile to protected speech.

Demers circulated a controversial proposal to reform the university's communications department, and wrote a book that was spoke critically of the university. He claims that, in retaliation for his speech, his evaluations plummeted, and his standing at the university, and reputation as an academic, suffered as a result.

The Ninth Circuit, while extending qualified immunity to WSU because of the lack of clarity in the law, held that the U.S. Supreme Court's decision in Garcetti v. Ceballos doesn't apply in academia, and that professors' speech on matters of public concern is protected under Pickering v. Board of Education.

Garcetti: Speech Pursuant to Official Duties Not Protected, Except ...

The Court's 2006 ruling in Garcetti was a landmark one for (well, against) First Amendment protections for public employees. The Supreme Court held that when statements are made pursuant to one's official duties, "the employees are not speaking as citizens for First Amendment purposes," and that speech is not shielded from employer discipline or retaliation.

The Court did leave open a loophole, however. In response to Justice Souter's dissent, which stated, "I have to hope that today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to ... official duties,'" the Court reserved the question of whether the holding applied to "speech related to scholarship or teaching."

The Ninth Circuit, citing other Supreme Court cases' treatment of academia as deserving of unique treatment in constitutional jurisprudence ("We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Grutter v. Bollinger), held that Garcetti could not, and did not, apply to academic speech.

Pickering: Matters of Public Concern, Balanced With Efficiency

Absent Garcetti, the controlling precedent is Pickering, which asks first if the speech is related to a matter of public concern, then asks if the employer's interest in efficient operation outweighs the employee's interest in speech (a pretty hefty burden).

Here, the speech did relate to a matter of public concern -- namely, the future of a public university's communications department, which was important enough to warrant the forming of a committee to discuss reforms. As for the balancing test, the lower court did not reach those issues, and the record was not sufficiently developed on that point. The district court will have to sort it out on remand.

Qualified Immunity, but Strong Precedent

The remedy, on remand, will be limited to injunctive relief, however. The Ninth Circuit held that the university was immune from money damages due to the lack of clarity in the law.

For Demers, that means this case may be a financial loss. The opinion specifies that each side will pay its own costs and on remand, and that he can only get injunctive relief. However, the precedent for protecting free speech in academia, some might argue, is invaluable.

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