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In new court filing, FIRE supports professor fired for criticizing his university and refusing to sign restrictive ‘Last Chance Agreement’

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In a “friend-of-the-court” brief filed this week with the U.S. Court of Appeals for the Tenth Circuit, FIRE argued that a federal district court failed to properly analyze professor Ken Peterson’s First Amendment claims against Dixie State University, his former employer. 

Dixie State earned a place on FIRE’s 2019 list of the “10 Worst Colleges for Free Speech” for its treatment of Peterson. As our description of the facts leading up to Peterson’s lawsuit indicates, adding Dixie State wasn’t a close call: 

Dixie State University in St. George, Utah, made headlines this spring for abruptly firing tenured music professor Ken Peterson, who was terminated along with another faculty member for merely discussing a colleague’s tenure bid. Inside Higher Ed reported widespread concerns among Dixie State faculty that the charges were trumped up to oust the professors for political reasons.

In July, the Utah System of Higher Education ruled Peterson should be reinstated. And while Dixie State said it “wholeheartedly supported” USHE’s decision, the university subsequently presented Peterson with a wildly unreasonable “Last Chance Agreement” as a condition to reinstatement that would have stripped him of practically all his speech and academic freedom rights. Academe Blog’s John K. Wilson called Dixie State’s move “one of the most extreme violations of academic freedom and free speech that I’ve ever seen.”

Represented by attorney Benjamin Lusty of Rencher Anjewierden, a member of FIRE’s Legal Network, Peterson filed suit against Dixie State last August, alleging that both his firing and the “Last Chance Agreement” violated the First Amendment. 

In a disappointing decision issued this April, however, a federal district court dismissed Peterson’s federal claims. Applying the exception to the First Amendment for public employees speaking pursuant to their official duties announced by the Supreme Court in Garcetti v. Ceballos (2006), the district court concluded that Peterson’s speech “fell within the scope” of his employment duties as a tenured professor and was thus not protected. 

The court further held that even if Peterson had been speaking as a public citizen, his speech did not involve a matter of public concern, placing it beyond the First Amendment’s protection. Finally, because Peterson refused to sign the Last Chance Agreement, the court found that he had not “sufficiently alleged that any speech was actually curtailed as a result of the [Agreement].”

In support of Peterson’s appeal to the Tenth Circuit, FIRE’s amicus curiae brief explains that the district court’s ruling failed to recognize the importance of protecting public university faculty speech, a well-established interest in First Amendment jurisprudence.

We argue that the Tenth Circuit should take the opportunity presented by Peterson’s appeal to follow the lead of other federal appellate courts that have chosen to bypass the Garcetti “official duties” exception when considering the speech of public university faculty. The brief details the ways in which the district court’s analysis of Peterson’s speech departs from Supreme Court and Tenth Circuit precedent, demonstrating that his speech did engage a matter of public concern and is properly protected by the First Amendment. 

Finally, to provide the Tenth Circuit with a sense of the stakes of Peterson’s appeal beyond his individual claims, our brief concludes with a survey of our work combating recent threats to faculty academic and speech rights across the country. FIRE knows that the Tenth Circuit’s ruling will be closely watched by administrators at institutions nationwide, and so we urge the court to affirm the importance of protecting faculty speech in its decision: 

FIRE’s defense of public university faculty members investigated, suspended, and fired for exercising their First Amendment rights illustrates the immediacy of the threat to faculty speech rights. Allowing the district court’s ruling to stand would grant public universities nationwide permission to punish faculty for speaking out on issues related to faculty governance and academic freedom. To stem the tide of campus censorship and protect faculty expression and academic freedom, this Court should reverse and remand to the district court to allow Peterson to prove his well-pled allegations.

You can read the full brief here:

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