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'Demers v. Austin' Shifts Circuit Split on Faculty Speech Rights

Yesterday we reported on the United States Court of Appeals for the Ninth Circuit’s decision in Demers v. Austin, in which the court held that a professor’s academic speech was protected under the First Amendment despite the U.S. Supreme Court’s holding in Garcetti v. Ceballos (2006) that government employees may be disciplined for speech “pursuant to” their “official duties.” Plaintiff and Washington State University professor David Demers called the outcome “a great victory for those who cherish academic freedom, free speech ideals and shared governance.” Although the court ruled that Demers may not receive money damages, the ruling reaches far beyond Demers himself, protecting professors from punishment for academic speech—including, as Popehat pointed out, sharing an unpopular view in the context of a classroom discussion.

But as Peter Schmidt aptly pointed out in The Chronicle of Higher Education, the decision also shifts the balance of a split among circuits that have addressed this issue. While the Fourth Circuit held in Adams v. Trustees of the University of North Carolina­–Wilmington (4th Cir. 2011) (PDF) that Garcetti did not apply to academic speech,

[t]he federal appeals courts for the Third, Sixth, and Seventh Circuits ... have gone the opposite way, holding that the Garcetti decision left public-college faculty members unable to claim being the victims of illegal retaliation over certain types of speech related to their jobs.

The split among the federal appeals courts makes it likely that the Supreme Court will feel a need to revisit the question of how its Garcetti decision applies to speech in academic settings.

If the case does make it to the Supreme Court, a speech-protective ruling will be essential to the future of higher education. In the meantime, university faculty members in most of the country are left without clear guidance as to how much of their speech is protected under the First Amendment. This type of uncertainty creates a “chilling effect” on speech and leaves many professors without recourse if they are punished for their expression.

As Judith Endejan, Demers’ lawyer, noted: “Without First Amendment protection for teachers, you would shut down a lot of creativity, innovation, risk-taking, the very sort of activity and speech that professors should be engaged in.”

Demers himself says he is “elated” about the Ninth Circuit’s decision:

“What it means is that the appeals court has basically said that faculty members have a right to criticize administrators and their policies, and a right to create their own alternative plans for restructuring a program,” Mr. Demers said.

“This,” he added, “is what shared governance is supposed to do.”

Read the rest of Schmidt’s article in The Chronicle of Higher Education.

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