David Hacker on Implications of ‘Nassar’ for First Amendment Claims

By August 1, 2013

In a Jurist guest column published on Monday, Alliance Defending Freedom’s David Hacker writes on the significance of the U.S. Supreme Court’s recent decision in University of Texas Southwestern Medical Center v. Nassar (PDF).

In Nassar, a closely-divided Court held that plaintiffs must establish “but-for” causation to succeed on retaliation claims under Title VII, the portion of the Civil Rights Act of 1964 prohibiting employment discrimination based on protected characteristics. This means that the plaintiff must show that but for the discriminatory motive, the adverse employment action would not have been taken. This sets a particularly high bar for plaintiffs who have less-than-spotless performance records, as they must demonstrate that they would not have suffered the adverse action for any of those other shortcomings.

Hacker’s column focuses on Nassar’s implications for First Amendment retaliation claims under 42 U.S.C. § 1983, a federal statute:

The Court’s opinion indicates that § 1983 claims, which protect against retaliation undertaken in response to the exercise of constitutional rights, are not subject to but-for causation, but remain governed by “mixed-motive” causation. This difference ensures robust protection of academic freedom and free speech for students and faculty and is essential to preservation of the “marketplace of ideas” on campus.

“Mixed-motive” causation is an easier burden to meet, as it allows plaintiffs to prove causation by showing that their protected expression was a substantial or motivating factor in the defendant’s actions, even if it was not the decisive factor. Hacker explains why this is so important for First Amendment plaintiffs:

Broad protections for student and faculty speech are supported by a mixed-motive framework, which uncovers retaliatory conduct threatening to fundamental rights. Often, the evidence surrounding punishment of a student on campus or a faculty member in the workplace contains several justifications for the adverse action. In the case of a professor, a college may deny her tenure because of a less than preferred number of publications and the viewpoints she expresses in existing publications. Rarely is any decision made for one reason alone.

[...]

Academic freedom and campus free speech depend on opportunities for students and faculty to challenge the entrenched orthodoxy. Too often public schools and universities censor and retaliate against dissenters for their speech and cloak those adverse actions in seemingly benign and multivariable justifications. A but-for standard would facilitate punishment of disfavored speakers and thus imperils the marketplace of ideas. Nassar indicates that the mixed-motive framework lives on and will continue to provide critical protections for civil and constitutional liberties on campus.

Torch readers know as well as anyone how important it is to foster a truly open “marketplace of ideas” in higher education, free of the specter of official punishment. FIRE hopes that courts nationwide will draw the same conclusions from the Supreme Court’s Nassar decision that Hacker has, and will continue to support the ability of students and faculty to obtain redress for violations of their First Amendment rights.

For more on the legal background and issues involved, read Hacker’s whole piece at Jurist.

Cara Gagliano is a FIRE legal intern.