Washington professor claims free speech rights over school's removal of mock land acknowledgement

(CN) — A controversial parody land acknowledgment that sparked campus backlash came before a Ninth Circuit Court of Appeals panel on Thursday, as a University of Washington professor accused the school of violating his free speech rights.

“The government here cannot open up a syllabus for debate about a matter of public concern, like the historical ownership of state land in the way that they did, and then banish Professor Reges because of the viewpoint,” argued Joshua Bleisch, attorney with the Foundation for Individual Rights and Expression.

The University of Washington adopted a land acknowledgement statement expressing that it sits on occupied Coast Salish tribal land as an effort to signal to Indigenous people that they are welcome at the school and encouraged professors to include the statement at the top of their course syllabi.

But Stuart Reges, a computer science professor, included what the state refers to as a “parody land acknowledgement” in his winter 2022 syllabus for an introductory course.

“I acknowledge that by the labor theory of property, the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington,” Reges’ statement reads.

The school asked Reges to remove the statement from his introductory course and invited him to voice his opinion in different settings and eventually opened an investigation into the incident when Reges vowed to continue including the statement.

While the investigation determined Reges had created an “immediate and significant disruption,” the school declined to impose any sanctions against him.

Reges challenged the constitutionality of the school’s anti-harassment order and accused university officials of violating his First Amendment rights by engaging in viewpoint discrimination and then retaliating against him.

Bleisch conceded that there were no official sanctions, but argued that this didn’t mean that Reges didn’t face any adverse action. For instance, in a letter sent from the dean of the computer science and engineering college, the school noted that it would be forced to conclude that Reges intentionally violated the university’s anti-harassment order.

“We know from the way that this case played out, any complaints mean disruption to the university,” Bleisch said. “That kind of threat of future enforcement has a chilling effect.”

A lower court found previously in favor of the school, dismissing Reges’ claims on the determination that the school had shown an interest in preventing disruption to its operations. On appeal, Reges reignited his First Amendment argument.

Public reaction to Reges’ statement began quickly after it was distributed, with social media posts spreading online and students complaining. One Indigenous student within the engineering school took a leave of absence — though the parties have disputed whether the leave can be traced back to the statement.

“As I read these briefs. I was struck by how sensitive the students or others were. Some people would call it ‘woke,’ — they call whatever they want — but the reality is you’ve got people who were upset,” U.S. Circuit Judge Milan Smith, a George W. Bush appointee, said.

The professor argued that the mission of public universities — to engage in a debate of ideas in search of truth — is undermined when a university suppresses professors’ expression of their views.

“The point of the First Amendment is to protect even unpopular speech,” Bleisch said. “Even in a place like a university campus, or especially, I would say.”

U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, noted that the context is important when considering the university’s interest.

“If it interferes with the recruitment of Indigenous and native students, then it does disrupt the mission of the university,” he said.

The university argued that it took only limited action regarding Reges’ statement to fulfill the university’s educational mission.

“The reaction that the university took was a reaction to the disruption. It was not a reaction to the content,” said David Hosp, attorney with Orrick, Herrington and Sutcliffe representing the university.

“But isn’t the disruption related to the viewpoint? I mean, isn’t that why there was disruption, that people did not like the view he was expressing?” U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, asked.

Hosp clarified that yes, an offense can lead to disruption but that the university didn’t expressly target the content but rather took action only to protect its educational mission.

The university removed the Reges’ land acknowledgement from the online course syllabus and added a second section taught by a different professor.

“Then the university did nothing else in terms of taking those actions and the university made clear and offered to him opportunities to express his views elsewhere,” Hosp said.

“ I mean, there’s an irony to this case, a little bit, that you’re asking him not to put something on a particular syllabus, but nonetheless are allowing him to voice the view in all kinds of other forums,” Bress noted, questioning what the point was of altering the syllabus if the school was going to allow him to promote his view elsewhere.

To the university, the intent was to make it clear to those who were offended that it did not sponsor or endorse Reges’ opinion. It was only after Reges emailed his intent to include the land acknowledgement on future syllabi because he was “disappointed that the university wasn’t punishing him more and he wasn’t getting more attention” that the school took more action, Hosp said.

Reges had emailed the school’s diversity, equity and inclusion section, and a university union filed a complaint accusing Reges of violating the anti-harassment policy, which triggered an investigation under the faculty code.

“In this instance, remember there was no punishment meted out,” Hosp said. “That’s a critical part of this: There was no silencing and there was no punishing.”

Smith questioned how the university gained anything by removing Reges’ variation of the land acknowledgement from the syllabus but allowing it to remain in his email signature and in other places. Hosp clarified it was to remove the notion that the university in any way endorsed the statement.

The facts in the case “ basically demonstrate that the university took every opportunity and every possibility to prevent him from being silenced while also making clear that the university did not endorse this view,” Hosp said.

The professor disagreed with the school’s characterization of its response and reminded the panel that just because Reges has been allowed to use the land acknowledgement during the pendency of the litigation doesn’t mean he doesn’t face future harm.

The Ninth Circuit didn’t indicate when it would rule.