Employment Law - Free Speech Rights - Ninth Circuit Finds Garcetti Official Duty Rule Inapplicable to Professorial Speech in Public University Context

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EMPLOYMENT LAW--FREE SPEECH RIGHTS--NINTH CIRCUIT FINDS GARCETTI OFFICIAL DUTY RULE INAPPLICABLE TO PROFESSORIAL SPEECH IN PUBLIC-UNIVERSITY CONTEXT. --Demers v. Austin, No. 11-35558, 2014 WL 306321 (9th Cir. Jan. 29, 2014)

In 2006, the Supreme Court held in Garcetti v. Ceballos (1) that public employees speaking "pursuant to their official duties" do not receive First Amendment protection from employer discipline. (2) Commentators have widely viewed Garcetti's "official duty" rule as severely constraining the First Amendment rights of public employees to speak freely in the workplace. (3) But the Garcetti Court explicitly left unanswered the question of Garcetti's applicability in the university context. (4) Recently, in Demers v. Austin, (5) the Ninth Circuit ruled that Garcetti does not apply to professorial "speech related to scholarship or teaching" (6) because extending the "official duty" rule to the university context would be inconsistent with First Amendment protections for academic freedom. (7) While the panel's reasoning may have merit as applied to classroom teaching and academic scholarship, the Ninth Circuit overzealously extended constitutional protection to internal administrative speech in conflict with both the employment law emphasis on the context of employee speech and the Supreme Court's deferential approach toward institutional academic freedom.

Plaintiff David Demers was a tenured associate professor at Washington State University (WSU) with the Edward R. Murrow College of Communication (Murrow School). (8) In early 2007, while serving on the Murrow School's Structure Committee, (9) Demers distributed a two-page pamphlet entitled "The 7-Step Plan" (the Plan). (10) He presented the Plan first to the Provost and the President of WSU, then "to members of the print and broadcast media in Washington [S]tate, to [other] administrators at WSU, to some of [his] colleagues, to the Murrow Professional Advisory Board, and [to] others." (11) According to the cover of the Plan, the proposed steps were circulated as a product of Marquette Books LLC, an independent publishing company owned and operated by Demers. (12) he Plan contained "broad proposals to change the direction and focus of the School," (13) such as separating its two faculties and "giving more prominent roles to faculty members with professional backgrounds." (14) Many of these proposed steps addressed the very issues considered by the Structure Committee. (15) In addition to the Plan, Demers circulated working drafts of portions of a book entitled The Ivory Tower of Babel. (16) The book "criticize[d] [WSU] bureaucracies and the internal audit and question[ed] the significance of the social sciences as a force for public policy change." (17) Demers contended that university administrators retaliated against him for circulating the Plan and drafts of The Ivory Tower of Babel and argued that his speech should be shielded from retaliatory actions by First Amendment protections of academic freedom. (18) According to Demers, these retaliatory actions adversely affected his compensation and his reputation as an academic. (19)

The district court granted the defendants' motion for summary judgment. (20) Relying on Ninth Circuit precedent, the court focused its analysis on whether Demers was speaking as a private citizen on a matter of public concern. (21) The Ninth Circuit had previously applied Garcetti's holding that "the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities." (22) Applying this precedent, the district court found that circulating the Plan within the university community was part of Demers's job responsibilities. (23) Therefore, under the framework established in Garcetti, Demers was not entitled to First Amendment protection from his employer's retaliatory actions. (24) The district court also determined that the Plan did not address matters of public concern. …