Free Speech Win for Professor in Name Only

     (CN) – The First Amendment protects a professor’s seven-point plan to reform his college, but he cannot sue administrators for not knowing it, the 9th Circuit ruled.
     David Demers, a tenured associate professor of journalism and mass communication at Washington State University, sued four administrators for allegedly retaliating against him after he distributed a “7-Step Plan” to restructure the Edward R. Murrow College of Communication.
     Demers, who is also an author and a publisher, claimed that his First Amendment rights had been violated with the negative reactions to the plan from College of Liberal Arts dean Erich Lear; provost and executive vice president Warwick Bayly; vice provost for faculty affairs Frances McSweeney; and Murrow’s interim director Erica Austin.
     He claimed that he received negative and false performance reviews and became the subject of two internal audits and a target for discipline after he had distributed the pamphlet.
     The administrators argued that, after he got tenure, Demers began to attend faculty meetings only sporadically and skipped Friday classes in favor of online quizzes. They also said that he failed to publish articles in academic journals and had “reoriented his priorities away from academia after receiving tenure,” according to the ruling.
     U.S. District Judge Robert Whaley in Spokane ruled for the defendants, citing the U.S. Supreme Court’s finding in Garcetti v. Ceballos that a public employee’s speech is not protected if it is related to the duties of his job. Whaley also found that the restructuring plan was not protected speech because it did not address a “matter of public concern.”
     In a qualified reversal, a three-judge appellate panel found Wednesday that Garcetti does not apply to teaching and academic writing, and that Demers’ plan actually did address wide public concern. Teaching and writing by educators employed by the state is governed not by Garcetti but by Pickering v. Board of Education, according to the ruling.
     Finding that the administrators could not have been expected to know that Garcetti did not apply, however, the judges let all of the defendants off the hook based on qualified immunity.
     The administrators have immunity even if it turns out on remand that they did in fact violate Demers’ right to free speech, according to the ruling.
     A three-judge panel of the 4th Circuit found differently with a similar case in 2011.
     That decision involved a criminology professor whom the court allowed to sue the University of North Carolina – Wilmington for allegedly refusing to promote him because of his conservative Christian views.
     Since there is no precedent for this in the 9th Circuit, however, the court found that the administrators in Demers’ case cannot be sued.
     Relief may still be available to Demers, the judge noted, disagreeing with the lower court that the seven-point plan was of no public concern and therefore unprotected.
     “Here, Demers sent the plan to the president and provost of WSU, to members of the Murrow School’s professional advisory board, to other faculty members, to alumni, to friends, and to newspapers,” Judge William Fletcher wrote for the panel. “He posted the plan on his website, making it available to the public. Demers’s plan contained serious suggestions about the future course of an important department of WSU, at a time when the Murrow School itself was debating some of those very suggestions. We therefore conclude that the Plan addressed a matter of public concern within the meaning of Pickering.”
     The panel remanded the case for reconsideration of the professor’s First-Amendment claims, saying that he can still win injunctive relief if he is able to prove them.
     Demers’ attorney, Judith Endejan of Seattle’s Graham & Dunn, said Wednesday that the professor may seek relief in the form of “correcting his record at WSU.”
     “Specifically, he would ask that WSU expunge the false statements in his 2006, 2007 and 2008 annual reviews conducted by Dr. Austin; withdrawal and destruction of the audit report dated April 8, 2008 and another disciplinary notice that he claims was not warranted,” she said. “He would also ask for a salary adjustment for those years because he was denied one based upon the retaliatory acts he experienced as a result of his protected speech.”

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