This article was originally published in September 2013.  The information has been reviewed and is up-to-date as of October 2023.

The U.S. Court of Appeals for the Ninth Circuit in the last several weeks decided two important First Amendment cases – Dahlia v. Rodriguez on the rights of peace officers, and Wynar v. Douglas County on the rights of students in high schools.

On September 4, 2013, the Court issued a third important First Amendment decision, Demers v. Austin, this one on the free speech rights of faculty members at public colleges.  Demers takes the substantial step of allowing such faculty to state free speech claims even as to some speech rendered pursuant to their “official duties.”  Normally, such speech by public employees lacks First Amendment protection.   (At the same time, the Demers case provides some favorable language for college administrators, as described below).

The case’s underlying facts involve the speech activities of David Demers, a member of the faculty at the Edward R. Murrow College of Communications at Washington State University.  In the course of his work at the college, Demers prepared and circulated draft excerpts from his in-progress book The Ivory Tower of Babel and a “7-Step Plan” relating to substantial restructuring of faculty responsibilities at the School.  Demers believed that after he circulated the materials, the administration retaliated against him by giving him negative annual performance reviews that supposedly contained falsehoods, by conducting two internal audits, and by entering a formal notice of discipline against him.  Demers filed a federal lawsuit alleging individual administrators had retaliated against him for his exercise of First Amendment rights.

Demers’s case presented an issue of substantial debate in legal circles – whether and to what extent college or university faculty can assert First Amendment retaliation claims against their employers for speech rendered pursuant to their “official duties.”  The U.S. Supreme Court in Garcetti v. Ceballos held that in the context of public employment generally, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  The Supreme Court reasoned that restricting speech that “owes its existence” to a public employee’s job responsibilities does not infringe any liberties the employee enjoys as a private citizen.

The Supreme Court majority in Garcetti, however, included in the opinion an “academic freedom” caveat.  It stated:  “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”  (Emphasis added.)  The caveat responded to Justice Souter’s dissent in Garcetti, in which he expressed concern that the “official duties” rule might extend too far.  He wrote:  “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.’”

In Demers, the Ninth Circuit’s answers the question left open in Garcetti.  After citing several Supreme Court opinions from the 20th century discussing principles of academic freedom, the Court states: “We conclude that Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.”  The Court thus found that even though Demers’s alleged speech was pursuant to his official duties as a faculty member, he could nevertheless claim First Amendment protection in the speech, based on his unique status as a teacher employed by the state.

The Demers opinion, however, makes clear that other important defenses remain for college administrators.  To state a First Amendment retaliation claim, a faculty member must still prove his or her speech was on a matter of “public concern.”  In addition, under the prior Supreme Court case Pickering v. Board of Education, a faculty member can only succeed on a First Amendment claim if, on balance, his or her interest “in commenting upon matters of public concern” outweighs “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The Demers opinion further clarifies that, when applying this Pickering balancing test, future courts will need to give some benefit of the doubt to college and university administrators.  The Court provides some examples, including a college’s “evaluation of a professor’s writing for purposes of tenure or promotion.”  The Court stated that such an evaluation “involves a judgment by the employing university about the quality of what he or she has written.”  The Court explains: “Ordinarily, such a content-based judgment is anathema to the First Amendment.  But in the academic world, such a judgment is both necessary and appropriate.”  The Ninth Circuit concludes that courts in future cases should not just substitute their views for those of the administration: “[R]ecognizing our limitations, we should hesitate before concluding that we know better than the institution itself the nature and strength of its legitimate interests.”

After discussing the law, the Demers Court applied the law to the facts as follows.  The Defendant administrators could not use the “official duties” rule against Demers, whether or not his speech was pursuant to “official duties.”  As to his “Ivory Tower” excerpts, the Court determined that there was insufficient evidence in the record that Demers suffered any retaliation as a result of them.

As to Demers’s Plan document, however, the Court concluded that document could potentially form the basis for a First Amendment retaliation claim.  The Court found that the speech in the document was on a matter of “public concern.”  It found specifically that the Plan did not just “address the role of particular individuals in the Murrow School, or voice personal complaints.”  Instead, it “made broad proposals to change the direction and focus of the School.”  Also supporting “public concern” was that Demers circulated the Plan widely instead of directing it only to a limited audience.  After finding the “public concern” element satisfied, the Court stated that other elements of a retaliation claim, including the Pickering balancing, had to be addressed by the District Court on remand.

The Ninth Circuit in Demers did adjudicate an important additional defense asserted by the Defendants.  It held that they were entitled to qualified immunity for any damages claims, because the law at issue on First Amendment retaliation had not been clearly established:  “Until the decision in this case, our circuit has not addressed the application of Garcetti to teaching and academic writing.”

Conclusions:  The take-away for public educational institutions in California is that, for the time being, “official duties” arguments will be more difficult to make in First Amendment retaliation cases brought by college faculty, although the Garcetti rule should still apply to a faculty member’s speech pursuant to job duties outside “teaching and writing on academic matters.” [In January 2014, the Ninth Circuit issued a revised opinion using the term “scholarship or teaching” as the operative phrase, which matches the terminology from Garcetti.] Also, the U.S. Supreme Court will still have provide the final word whether Demers has correctly interpreted the legal issues raised by the Garcetti caveat; it can do so either by reviewing Demers or taking up the issue in a future case.

One anomaly from Demers is that its “teaching” language appears broad enough to extend outside the college and university context.  But in Johnson v. Poway Unified School District, the Ninth Circuit already stated that the Garcetti carve-out does not apply to high school instructor speech, i.e., that the “official duties” rule should apply in full.  (See footnote 12 to Johnson.)

Another consideration is that the Demers opinion does not account for the well-established principle that academic freedom rights vest in institutions of higher education themselves.  Providing substantial federal constitutional rights to individual faculty, one can argue, impairs an institution’s own rights to chart particular courses in terms of scholarship and teaching.  These institutional arguments will have to be addressed in later cases.

For “balancing” arguments, Demers provides administrators considerable support.  The Court advised that courts in future cases should “hesitate before concluding that we know better than the institution itself the nature and strength of its legitimate interests.”  This language will no doubt prove helpful to public educators in litigating First Amendment claims by faculty.

We will advise of further developments with regard to the Demers decision.