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Judge Tosses Professor’s Free-Speech Fight

FORT WORTH (CN) - A Texas Tech professor's campaign against tenure is not constitutionally protected speech, a federal judge ruled in dismissing his First Amendment retaliation lawsuit against the university.

James C. Wetherbe, an information technologies professor, has sued the university twice since 2012, claiming it retaliated against him for speaking out against tenure in national publications, including The Wall Street Journal, The Huffington Post and Bloomberg News Service.

In his April 2015 lawsuit, Wetherbe said he was demoted and suffered other retaliation for writing articles criticizing the university's use of tenure, and for filing the 2012 lawsuit.

In the 2012 lawsuit, a trial court judge found that the First Amendment protected Wetherbe's speech, but the Fifth Circuit reversed, finding that as a public employee, the professor was talking about his job.

The Fifth Circuit found that Wetherbe's speech was not constitutionally protected, but did not address whether he might state a claim for First Amendment retaliation.

The U.S. Supreme Court declined to take the case.

U.S. District Judge Terry Means on March 31 granted the university's motion to dismiss. Means found that Wetherbe could not state a First Amendment retaliation claim since his speech on tenure is not a matter of public concern.

"The court commends Wetherbe for taking a stand for his beliefs on tenure, but under the extant circumstances his beliefs are not constitutionally protected," the ruling states.

Wetherbe argued that the publication of his articles after he filed the first lawsuit made his views on tenure a matter of public concern. But Means said that employee's speech is designed to protect areas that concern the public at large, such as racial discrimination or political speech.

"Tenure is a benefit that owes its existence to, and is generally found only in the context of, government employment and, therefore, is not a matter of public concern," Means ruled.

"It is not the court's place to determine how a university should make employment decisions when a constitutional right has not been violated."

The judge also found the university is shielded by Eleventh Amendment immunity and that a university dean is entitled to qualified immunity.

Wetherbe said he is "of course appealing."

"We will fight for the proposition that tenure is indeed a political issue," he said in an email to Courthouse News. "And we want to push the argument that the more restrictive case of Garcetti, that this court and the Fifth Circuit rely on, is expressly not applicable to academic jobs, because it is my job to research and write on matters of public interest. If I can't be protected in my scholarship, then the whole core of my job duty is unprotected."

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