Ninth Circuit Finds That The Garcetti “Official Duties” Rule Does Not Apply To Public University Employee Academic Speech

 The Ninth Circuit, in Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013), has boldly gone — where other federal circuit courts have heretofore been reluctant to venture — in declaring that applying Garcetti to academic speech would conflict with the First Amendment.  This unequivocal decision paves the way to potential Supreme Court review of the question expressly left open in the landmark Garcetti v. Ceballos, 547 U.S. 410 (2006) decision:  whether speech on academic matters by a public university professor is protected against employer discipline by the First Amendment.

Garcetti, the pivotal free speech case involving a deputy district attorney and not an academic, held that 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 reversed the Ninth Circuit in so holding.  While Garcetti transformed free speech analysis for public employees in general, the court expressly left open the potential for an exception to the “official duties” rule:  “speech related to scholarship or teaching.”  This potential exception is now the rule in the Ninth Circuit.

The Demers Case

David Demers, a now former tenured professor at Washington State University’s Edward R. Murrow College of Communication, claimed that over a three-year period, he went from being a popular teacher and scholar with high evaluations to being a target for termination.  According to Demers, this was because he distributed a pamphlet called “The 7-Step Plan” and a draft from an in-progress book he was writing entitled, “The Ivory Tower of Babel.”  During the time he distributed the 7-Step Plan and draft portions of his in-progress book, Demers served on the Morrow School’s Structure Committee, which was actively debating the faculty structure at the school following its separation from the University’s College of Liberal Arts.  The 7-Step Plan advocated separating the Morrow School’s two faculties and giving a more prominent role to the faculty with a professional, rather than an academic, focus.

In addition to his employment with the University, Demers owned and operated an independent publishing company named Marquette Books.  As the publisher of Marquette Books, he sent the 7-Step Plan to various University administrators; the pamphlet also stated that it was prepared by Marquette Books L.L.C.  Additionally, Demers offered on behalf of Marquette Books to make substantial monetary contributions to the University’s unrestricted funds if the 7-Step Plan was adopted.  Demers also sent the 7-Step Plan to members of the print and broadcast media in Washington, University administrators, and some colleagues, but did not send the pamphlet to the Structure Committee.  With respect to the in-progress book, Demers described it as containing information that was critical of the academy, including some events at the University.  He attached draft copies of chapters of his book to his application for sabbatical, and described the book in his self-prepared Faculty Annual Reports.

Demers claimed that certain University administrators violated his First Amendment rights by retaliating against him for circulating the 7-Step Plan pamphlet and drafts of his book.  The alleged retaliation included:  knowingly using incorrect information to lower his performance review scores, spying on his classes, preventing Demers from serving on certain committees, preventing Demers from teaching basic Communications courses, instigating two internal audits, sending him an official disciplinary warning, and excluding him from heading the Communications sequence at the Morrow School.  Defendant administrators responded that the evaluations and investigations were warranted based on Demers’ performance.  They also asserted that distribution of the pamphlet was not protected speech because it was written and circulated pursuant to Demers’ official duties and, in any event, it did not address a matter of public concern.

The Ninth Circuit found that it was impossible, as a practical matter, to separate Demers’ position as a member of the faculty and as a member of the Structure Committee, from his preparation and distribution of the 7-Step Plan pamphlet.  Therefore, the court concluded that Demers was acting sufficiently within his capacity as a professor in distributing the pamphlet such that he was acting “pursuant to his official duties” within the meaning of Garcetti.  Notwithstanding this fact, the Ninth Circuit – noting the Supreme Court’s long history of upholding the expansive freedoms of speech and thought associated with the university environment – concluded that Garcetti does not apply to teaching and academic writing that is performed pursuant to the official duties of the professor.  Rather, the Ninth Circuit held that the extent to which such writing and teaching is speech protected by the First Amendment is instead governed by the balancing test set forth in Pickering v. Bd. Of Ed. Of Twp. High Sch. Dist., 391 U.S. 563 (1968).

Under Pickering – a case involving a public high school teacher who wrote a letter to a local newspaper complaining about budgetary decisions made by the school district – the interests of the public employee as a citizen in speaking on matters of public concern are balanced against the interests of the government employer in promoting the efficiency of the public services it performs through its employees.  The Ninth Circuit cautioned in Demers that Pickering balancing in cases involving academic speech is likely to be particularly subtle and “difficult.”  In explaining the difficulty attendant to assessing the nature and strength of the public interest in academic speech, the Ninth Circuit explained that judges should hesitate before concluding that academic disagreements about what may appear to be esoteric topics are mere squabbles over jobs, turf, or ego (i.e., not speech on matters of public concern).  Likewise, the Ninth Circuit noted that the nature and strength of the interest of an employing academic institution will also be difficult to assess, and cautioned judges to also hesitate before concluding that they know better than the institution itself the nature and strength of its legitimate interests.  In this regard, by way of example, the court observed that while ordinarily content-based judgment is anathema to the First Amendment, the evaluation of a professor’s writing for purposes of tenure or promotion involves judgment by the employing university about the quality of what has been written that is both necessary and appropriate.

The Ninth Circuit stated, however, that not all speech by a teacher or professor addresses a matter of public concern, and that the First Amendment does not protect speech that is essentially a private grievance.  Significantly, though, the Ninth Circuit took a broad view of what could qualify as protected academic speech.  In this regard, the court noted that protected academic writing is not confined to scholarship; academics in the course of their academic duties also write memoranda, reports and other documents addressing topics such as budgets, curriculum, departmental structure and faculty hiring.  Such writing, depending on its scope and character, may address a matter of public concern under Pickering.

In Demers’ case, the Ninth Circuit concluded that his 7-Step Plan addressed a matter of public concern under Pickering because it contained serious suggestions about the future course of an important department of the University, at a time which the Morrow School itself was debating some of the recommendations.  Because the District Court had reached a contrary conclusion, the case was remanded to address the Pickering balancing questions, as appropriate.

While the broad language used by the Ninth Circuit in the Demers case could be construed as extending the reach of its Garcetti exception for academic speech beyond professors at public post-secondary institutions, and into the primary and secondary school context, it is doubtful that such a broad application is intended.  This is because the Ninth Circuit has already stated its belief that the Garcetti carve-out for academic freedom applies only to teachers at public colleges and universities, and not to public primary and secondary school teachers.  (Johnson v. Poway Unified School Dist., 658 F.3d 954, n. 12 (9th Cir. 2011).)

            A Circuit Split Beckons Supreme Court Review

The Ninth Circuit is the first federal circuit court to hold squarely that Garcetti does not apply to academic speech at the college and university level.  Other federal circuit courts that have had the chance to weigh in on the issue have been less boldly definitive.

With Demers, the Ninth Circuit takes its place alongside the Fourth Circuit, which previously declined to apply Garcetti in Adams v. Trustees of Univ. of N. Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011).  Adams involved claims by an associate professor that the university did not promote him to full professor following his religious conversion because of his outspoken Christian and conservative beliefs.  Adams became increasingly vocal following his conversion about various political and social issues within and outside of the university, became a regular columnist for Townhall.com, and appeared on radio and television broadcasts as a commentator.  Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion and morality.  He also continued to receive strong teaching reviews from students and faculty.  The Fourth Circuit – concluding that Adams’ speech reflected the appropriate aspect of scholarship and teaching – declined to apply Garcetti based on the facts of Adams’ case.  Although the Fourth Circuit acknowledged the Supreme Court’s reservation of whether the Garcetti “official duties” rule applied when the speech in question was academic scholarship and teaching, the court noted that there may be instances when a public university faculty member’s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching, and that Garcetti may apply to the specific instance of a faculty member’s speech in carrying out those duties.

On the other side of the fence, the Third, Sixth and Seventh Circuits have declined to apply an exception to Garcetti for speech in the public college and university context.  Two years after Garcetti, the Seventh Circuit decided Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008).  Renken was an associate professor at the University of Wisconsin-Milwaukee, who had obtained a grant from the National Science Foundation to establish a thermal engineering laboratory that required the university to share the cost.  Although the university agreed to share the cost, Renken disagreed with the university’s proposed use of the grant money and believed that the proposed use would violate federal law.  Renken therefore filed several complaints with various university committees, and ultimately filed suit claiming that he had been retaliated against (the university allegedly refused to pay his student assistants and proposed a reduction in his compensation) for his speech, in violation of the First Amendment.  The Seventh Circuit concluded that administering the grant fell within Renken’s teaching and service duties that he was employed to perform.  Applying Garcetti without any discussion of the Supreme Court’s mention of a possible academic exception, the Seventh Circuit found that Renken’s speech was not protected by the First Amendment because it was made pursuant to his official duties as a faculty employee, and not as a private citizen.

The following year, the Third Circuit in Gorum v. Sessoms, 561 F.3d 179 (3rd Cir. 2009), applied Garcetti’s “official duties” rule to determine that a former Delaware State University professor’s advising a student athlete in a disciplinary appeal, and involvement in rescinding an invitation to the University President to speak at a fraternity event, was not protected speech under the First Amendment.  The Third Circuit, unlike the Seventh Circuit, directly addressed the Supreme Court’s statement in Garcetti regarding “speech related to scholarship or teaching.”  The court voiced its accord with the Supreme Court that there is some argument that “expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by … customary employee-speech jurisprudence.”  However, the court noted that the “full implications” of the Supreme Court’s statements were “not clear,” and that as a result, federal circuit courts “differed over whether (and, if so, when) to apply Garcetti’s official duty test to instructors.”  Ultimately, the Third Circuit dodged the issue by determining that applying the Garcetti official duties test to the professor in the case before it did not imperil First Amendment protection of academic freedom in public colleges and universities because Gorum’s actions “so clearly were not ‘speech related to scholarship or teaching.’”

More recently, in Savage v. Gee, 665 F.3d 732 (6th Cir. 2012), the Sixth Circuit applied Garcetti’s official duties test to find that the Head of Reference and Library Instruction at Ohio State University’s speech as a committee member commenting on book recommendations was made pursuant to his official duties, and was therefore not protected speech.  While acknowledging the Supreme Court’s dicta in Garcetti, the Sixth Circuit determined that the speech commenting on a book recommendation was not related to classroom instruction and “was only loosely, if at all, related to academic scholarship.”  The Sixth Circuit reasoned:  “Thus, even assuming Garcetti may apply differently, or not at all, in some academic settings, we find that Savage’s speech does not fall within the realm of speech that might fall outside of Garcetti’s reach.”

* * *

Only time will tell whether the Supreme Court provides clarity on whether, and if so, when, to apply Garcetti or Pickering to public college and university employee academic speech.  However, for the time being in the Ninth Circuit, there is no equivocating about the existence of an exception to the Garcetti official duties rule for academic speech at the college level.

- Jayne Benz Chipman

Problems With Obamacare Rollout Are Not Expected To Affect The Employer Mandate

With the government shutdown and debt ceiling crisis over, Obamacare has dominated the headlines.  Two stories in particular have garnered special attention.  First, the national healthcare.gov website did not work and, as a result, far fewer than expected Americans registered for insurance on it.  Then, millions of Americans began to receive notices from their insurers that their healthcare plans would be canceled, despite the President’s campaign promise that consumers who want to keep their healthcare plan could do so.   Continue reading

Will The EEOC Back Off Its Position On Background Checks?

In a year filled with controversy, the EEOC outdid itself when it charged two employers with discrimination based on their use of routine criminal background checks.  But now after some well-publicized losses, the EEOC may be forced to back off.

Although the EEOC’s 2012 Guidance Bulletin on criminal background checks does not expressly prohibit them, the EEOC famously took the position that if criminal background checks have a  disparate impact on racial minorities, they cannot be performed except in very limited circumstances. Continue reading

Public Sector Requests For Workplace Investigation Information: You Can’t Always Get What You Want

We are frequently asked by public employers to help them navigate requests from their employees and unions for information pertaining to the employer’s internal investigations.  While the law in this arena from the courts and PERB continues to evolve, there is a general legal framework that public employers should keep in mind when determining who gets what, when and in what form.

So, how do you determine who gets what, when, and in what form?  The answer is the classic lawyers’ answer:  “it depends on the facts.”  Nevertheless, the following checklist can guide public employers in their assessment:

•  Determine Which Rules Apply To The Type Of Investigation

While this crucial first step should be self-evident, it is surprising how often agencies do not assess up front which rules apply.  The rights of employees and their representatives to investigation information depend, fundamentally, on what rules apply.  Therefore, it is critical from the beginning of an investigation to identify the applicable rules, and rule out the ones that do not apply.  Particularly in the public sector, applicable rules can come in many forms:  statutes, administrative regulations, personnel rules, collective bargaining agreements.  Oftentimes, multiple sets of rules will apply to the same investigation.  If multiple rules apply, the agency will need to determine which rules take precedence over others in the event of a conflict.  Legal counsel should be consulted to assist in determining how to proceed in the event of a conflict.

  •  Identify Who Is Making The Request For Information

The identity of the individual or group requesting the information determines their rights, plain and simple.  For example, public safety officers generally have greater rights than other employees to certain information while an investigation is pending.

 Assess The Basis For The Request

Additionally, the basis for the request also determines the response.  If the basis for the request is not clear, the party requesting the information should be asked to specify the basis in writing so that the agency can respond.  As discussed above, statutes, regulations, personnel rules and/or collective bargaining agreements may determine the rights in any particular case.  Therefore, it is critical to pin down the basis for the request from the outset so that the agency can determine the appropriate response.

  •  Ascertain The Status Of The Investigation

The status of the investigation determines, in part, what (if any) information must be provided at any particular point in time.  As a general rule, more information may be available to more individuals and/or their representative following completion of an investigation.

•  Determine Whether Any Privileges Apply

All or a portion of an investigation report or supporting documentation may be privileged.  Particularly where the investigation has been conducted by, or in conjunction with an attorney, it will be important to carefully review each document within the request to determine whether it is protected by the attorney-client privilege or attorney work product doctrine.  Additionally, individual rights of privacy may also apply.  In such cases where potential privileges apply, legal counsel should be consulted in determining the appropriate response.

•  Determine The Form Of Any Required Response

If disclosure is appropriate, blanket disclosure may not necessarily be required.  Where issues of privacy and confidentiality are concerned, particularly for third parties, or individuals who are not managers or supervisors, redaction of names and identifying information may be appropriate.  In such circumstances, it may be possible to reach agreement with the requesting party on a form of disclosure that protects the employer’s concerns for privacy and confidentiality while providing the information that must be disclosed.

 •  Make Sure The Response Is Documented In Writing

Memories fail and stories change.  The agency should – after analyzing the facts and determining the appropriate response – make sure that its response and the reasons for the conclusion are adequately documented in writing with sufficient facts, and provided to the requesting party.  This should diminish discrepancies at a future date regarding the basis for the agency’s decision.  It will also assist the agency in proving its response, should questions arise at some future point in time as to the timing, content, or existence of a response.

- Carmen Plaza de Jennings and Jayne Chipman

 

U.S. House Will Not Pass Bill Prohibiting Discrimination Against Gay Workers

Today, the U.S. Senate is expected to pass the Employment Non-Discrimination Act (ENDA), a bill which prohibits discrimination on the basis of sexual orientation, but the bill is not expected to make its way to the President’s desk.  Speaker John Boehner announced today that he opposed ENDA, leaving the impression that the bill is dead on arrival in the House of Representatives.

In California and 28 other states which already prohibit discrimination against gay workers, ENDA would have little effect.  But in the remaining 21 states, it remains legal to discriminate against employees or applicants because of their sexual orientation.

Strangely, the Speaker’s office issued a press release stating that he “believed this is covered by existing law.”  But, of course, Title VII does not prohibit discrimination because of sexual orientation.  And, in the past, Boehner stated that he was opposed to the bill because he felt it would “lead to endless, excessive litigation” and “drastically weaken religious freedom in the workplace.”

- Dan Handman

What To Expect From The NLRB In 2014

The NLRB is back in business.  After several years in the weeds, there is now a fully constituted Board, a confirmed General Counsel and no questions as to the legitimacy of any appointments.

Of course, there is also a Congress which at present does not appear as though it could muster up enough support for a bill to declare that Mickey is a mouse.  So, the chances of any changes to the National Labor Relations Act — to the left or to the right — appear very unlikely to happen. Continue reading