For those of you like me that follow the development of First Amendment law in the public employee space, times have recently been depressing for employee advocates in this post-Garcetti world that we now inhabit in the United States.
Now comes a pro-employee decision (yes from the 9th Circuit) concerning the application of Garcetti to a public university professor’s teaching and writing at school. Readers may recall that the Garcetti decision itself punted on the issue of whether the new standard – no First Amendment speech protection for public employees speaking pursuant to their official duties – also applied to the university academic setting where substantial issues of academic freedom also exist (this is less of an issue in the K-12 environment where public school teachers have less discretion in conveying the curriculum and do not generally do scholarship).
In Demers v. Austin (9th Cir. Sept. 4, 2013), the Ninth Circuit considered a case in which “a tenured associate university professor (at Washington State University]. . . alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled ‘The Ivory Tower of Babel.’” The case focuses primarily on the pamphlet, as not enough evidence was put in the record concering the book.
Judge Fletcher, writing for the unanimous panel, came to four important conclusions:
1. Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. In other words, Garcetti is basically silent on this issue as mentioned above, and the 9th Circuit found that matters of academic freedom play a more prominent role in this context that requires a different legal test. (“We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court [on academic freedom elucidated in Keyishian and other cases].
2. Instead, teaching and writing by university professors comes direclty under the Pickering balancing test, whereby the rights of the public employee to speak on matters of public concern are balanced against the employer’s right to run an efficient government service. (“We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.”).
3. So although the university professor here prepared and circulated the pamphlet pursuant to his official duties as a university professor (and thus, would normally have no First Amendment protection under Garcetti), the 9th Circuit concludes that speech was on a matter of public concern (thus satisfying the Connick test) and that there was a chance that the Pickering balancing of interests could come out in favor of the employee. The court therefore remands on this and a few other related issues.
4. In any event, the individual defendants in the case would not be held liable because of the unsettled nature of this area of the law. In short, they enjoy qualified immunity.
This is not the first case finding that there is an exception to Garcetti for teaching and academic writing. TheFourth Circuit came to a similar conclusion in the Adams public university professor case of 2011. Nevertheless, it will be interesting to see if this represents a growing consensus among the lower federal courts on this issue and whether this case will be subject to review en banc or by the Supreme Court. My thought is that although en banc review is certainly possible, there is not yet enough division and consideration of this issue by other circuit courts to warrant Supreme Court review.
This article was originally printed on Workplace Prof Blog on September 9, 2o13. Reprinted with permission.
About the Author: Paul Secunda is an associate professor of law at Marquette University Law School. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law. Professor Secunda is a frequent commentator on labor and employment law issues in the national media. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.