This Supreme Court case involved a deputy district attorney in California who complained to his supervisors about suspected misconduct in a case; after he was demoted and transferred, he sued, arguing that he had been punished for speaking out on an issue of public concern. The Supreme Court ruled that when public employees speak “pursuant to their official duties,” they are not protected by the First Amendment. The Court also noted, though, that “expression related to academic scholarship or classroom instruction” may have additional constitutional protection, and set aside for another day whether its “official duties” analysis would apply to “speech related to scholarship or teaching.”
Juan Hong, a tenured professor at University of California-Irvine, criticized a number of decisions about hiring, promotions, and staffing at the school of engineering. When he was denied a merit raise, he sued, asserting that his First Amendment rights had been violated. The federal trial court, relying on the “official duties” analysis from Garcetti, ruled against him, concluding that a public university “is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”
Update: Professor Hong appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, and the AAUP and the Thomas Jefferson Center for the Protection of Free Expression filed an amicus brief in support of his appeal. In November 2010, the appeals court ruled that the officials at UC-Irvine were immune from suit, and declared that it would “leave the question of whether faculty speech such as Hong’s is protected under the First Amendment for consideration in another case.”
Kevin Renken, a tenured engineering professor at the University of Wisconsin-Milwaukee, became embroiled in a dispute with his dean over the administration of a National Science Foundation grant. The university finally returned the funding and Renken sued the university, arguing that he had been retaliated against for criticizing the university’s use of grant funds. The United States Court of Appeals for the Seventh Circuit ruled that because Renken was a principal investigator on the project, administering the grant was “within the teaching and service duties that he was employed to perform,” and that his complaints therefore were not protected by the First Amendment.
In 2007, Wendell Gorum, a tenured professor at Delaware State University, sued DSU, contending that the university had terminated him because of his support for a football player advisee and several public clashes with DSU’s president, Allen Sessoms. The United States Court of Appeals for the Third Circuit rejected his arguments, ruling that a public employee’s speech could be “part of his official duties if it relates to ‘special knowledge’ or ‘experience’ acquired through his job.” The court did acknowledge that the Garcetti decision suggested that academic speech might be treated differently, but reasoned that “Gorum’s actions so clearly were not ‘speech related to scholarship or teaching.’”
In 2001, Civil Engineering Professor Habib Sadid published a letter to faculty and administrators criticizing Idaho State University’s plan to merge two colleges, including the College of Engineering. Several years later, he spoke to a state newspaper about the plan. Sadid claimed that in retaliation for his comments, he did not receive faculty evaluations, was not appointed to a chair position, was defamed in an email, and received the lowest possible salary increase, and that his First Amendment rights were therefore violated. Invoking the decision in Hong v. Grant, the Idaho state trial court concluded that Sadid’s letters related to his personal grievances rather than to a matter of public concern. In addition, relying primarily on cases that arose outside of the academic context, the court reasoned that “government employers need a significant degree of control over their employees’ words and actions.” The court therefore disagreed with Sadid’s assertion that because his job description did not include writing letters to the newspaper critiquing the ISU administration, he was writing as a private citizen rather than as a public employee. The court decided that the “tone” of Sadid’s letters “is that of an employee of ISU,” and added that Sadid “should understand that he has limitations of his speech that he accepted when becoming a state employee.” Finally, the court noted that Sadid had identified himself as an ISU employee in the published letters. The court concluded that “due to the tone and language of the letter,” Sadid was speaking as an employee and not as a private citizen, and his comments were therefore not protected by the First Amendment.
Update: Professor Sadid has appealed the trial court’s decision to the Supreme Court of Idaho, and the AAUP and the Thomas Jefferson Center for the Protection of Free Expression have filed an amicus brief (.pdf) seeking to educate the court about the academic freedom and First Amendment issues implicated by the case.
June Sheldon began teaching biology at California’s San Jose Community College in 2004. During her summer 2007 Human Heredity course, a student complained about a class discussion regarding homosexuality. In December 2007, after investigating the complaint, the community college’s administration withdrew Sheldon’s offer to teach in spring 2008 on the grounds that she was teaching misinformation as science. Sheldon sued in federal court, alleging that she was fired in retaliation for her in-class answer to a student’s question, and that her classroom instruction was protected by the First Amendment. In this decision, the court rejected the college’s reliance on the Garcetti decision, noting that “by its express terms,” the decision did “not address the context squarely presented here: the First Amendment’s application to teaching-related speech.” The court observed that prior appeals court opinions had, in the court’s words, “recognized that teachers have First Amendment rights regarding their classroom speech, albeit without defining the precise contours of those rights.” The court also noted that the Supreme Court has held that “a teacher’s instructional speech is protected by the First Amendment, and if the defendants acted in retaliation for her instructional speech, those rights will have been violated unless the defendants’ conduct was reasonably related to a legitimate pedagogical concern.” Because the court could not determine at this stage whether the community college terminated her employment on the grounds of reasonable pedagogical concerns, it denied the motion to dismiss. In July 2010, the community college district settled the case by agreeing to pay Sheldon $100,000 and removing from her file references to her dismissal.
Although this case arose in the context of K-12 rather than higher education, it vividly demonstrates the disturbing consequences of Garcetti’s application to teaching professionals. David Weintraub was a fifth grade teacher in the Brooklyn public school system. After a student threw a book at him in class and was returned to his classroom instead of being suspended, Weintraub complained to the assistant principal, told his fellow teachers about the incident, and filed a grievance with his union representative. Weintraub alleged that he was then retaliated against in a variety of ways in violation of his First Amendment rights, including receiving bad performance reviews, being wrongfully accused of sexual abuse, and ultimately getting fired. The federal trial court agreed that under Garcetti, his conversations with other teachers were not pursuant to his official job duties and were therefore protected, but ruled that his complaints to the assistant principal and his filing of a union grievance were pursuant to his job duties, because he was “proceeding through official channels to complain about unsatisfactory working conditions,” and that those activities therefore were not protected by the First Amendment. The U.S. Court of Appeals for the Second Circuit agreed to hear his appeal to decide the issue of whether filing a union grievance is protected by the First Amendment. Over a strong dissent, a two-judge majority of the court concluded that it is not.
The court relied on the fact that the majority in Garcetti defined speech made “pursuant to” a public employee’s job duties as “speech that owes its existence to a public employee’s professional responsibilities,” which is a “practical” inquiry. In this case, even though Weintraub wasn’t required to file a union grievance as part of his job, it was “part and parcel” of his attempts to carry out his job duties as a public school teacher, including maintaining discipline in his classroom. The court relied heavily on the fact that no speech is a “citizen analogue” – i.e., writing a letter to a newspaper or filing a complaint with an elected representative – to lodging a union grievance. Because Weintraub never made his complaints public and because they were related to his job, therefore, the First Amendment did not protect him from employer retaliation for filing the grievance. (The opinion does not address whether he might be protected by New York state labor law or other statutes.)
In this case, a federal trial court in Mississippi concluded that an elementary school special education teacher who complained to the school’s principal about another teacher’s use of corporal punishment on an autistic student was not protected by the First Amendment. The court observed that in the Fifth Circuit, the federal appeals court that covers Mississippi (as well as Texas and Louisiana), “activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection.” Because the teacher was the student’s primary teacher and she considered it to be within her role to deal with his behavioral issues, she “spoke as an employee in expressing her view that corporal punishment was not an effective means of discipline for an autistic child.” The First Amendment therefore did not prohibit the school from non-renewing her contract in retaliation for her speech.
In this case, a federal appeals court declined to dismiss a public employee’s First Amendment claim for her job-related speech. Janet Reinhardt was a speech-language pathologist for the Albuquerque Public Schools (APS). She complained for a number of years to APS that she was not receiving accurate caseload lists of students, and that that failure had the effect of denying students speech and language services. After repeated complaints went unaddressed, she hired an attorney and filed a complaint with the New Mexico Public Education Department against APS, alleging that the Individuals with Disabilities in Education Act was being violated. Her caseload was then reduced, lowering her salary, and she believed she might lose her position entirely. Reinhardt sued APS, arguing that the reductions in her caseload and salary were in retaliation for her complaints and violated her First Amendment rights. The federal trial court dismissed her claim, ruling that she filed her complaints pursuant to her official duties, but the U.S. Court of Appeals for the Tenth Circuit unanimously reversed in this opinion. The court observed that in the Tenth Circuit, which covers the states of Utah, Colorado, New Mexico, Wyoming, Oklahoma, and Kansas, an employee who reports wrongdoing is generally not speaking “pursuant to her official duties” (and is therefore protected under Garcetti, as long as the speech is on a matter of public concern) if (1) the employee’s job responsibilities do not relate to reporting wrongdoing, and (2) the employee went outside his or her chain of command to report the wrongdoing. The court rejected APS’s claim that it was within Reinhardt’s job responsibilities to report APS’s failures simply because she had professional obligations and was bound to “enforce all laws and rules applicable to” the school district. The court noted both that Reinhardt was hired to provide speech and language services, not to ensure IDEA compliance (though that alone would not have been dispositive), and that retaining counsel appeared to be beyond her official job duties (though her initial complaints to administrators and within the internal grievance procedures likely were part of her official duties). The court therefore reversed the district court’s opinion for further consideration of the other elements of her First Amendment claim.
680 F. Supp. 2d 263 (D. Maine Jan. 28, 2010)
Ellen Decotiis is a speech language therapist who taught disabled children for Maine’s Child Development Services (CDS) agency. In 2008, the Maine legislature passed a rule that summer teaching services would be available only to those students for whom it was “necessary to comply with federal law.” Because one CDS office for which Decotiis provided no information about how students would be chosen to receive summer teaching services, Decotiis urged her students’ parents to contact advocacy groups for the disabled to determine “their rights under state and federal laws,” posting contact information for these groups in her office. The director of the local CDS office complained that Decotiis was “out to get her,” and a few months later Decotiis’s annual contract was not renewed. Decotiis sued, alleging that she had been illegally retaliated against her under First Amendment. A federal district court in Maine dismissed Decotiis’s First Amendment claim because it held that her speech was “pursuant to her official duties” under Garcetti. The court reasoned that “providing therapy” was Decotiis’s official duty, and the speech at issue was sufficiently related to that duty because it involved whether her students would be receiving therapy, occurred during Decotiis’s therapy sessions, and was only spoken to parents of her students (rather than the general public). Further, the court decided that the speech was “influenced and informed by her position as a therapist” because she had asked her superiors about the summer teaching policy.
2010 U.S. App. LEXIS 3495 (2d Cir. Feb. 22, 2010)
In this case, Chukwumeziri Ezuma, a professor at the City University of New York (CUNY), claimed that he was retaliated against for supporting the sexual harassment complaint of another faculty member, who complained to Ezuma about the harassment while he was chair of her department. Ezuma relayed the complaints to administration officials and discussed her accusations with lawyers and police investigating the complaints. When Ezuma was removed as department chair and from various academic committees, he sued, claiming that these actions were retaliation for his speech about the sexual harassment. The Second Circuit ruled that Ezuma’s speech, including his discussions with lawyers and the police, was made “pursuant to his official duties” because, as department chair, he was obliged to report accusations of sexual harassment. Although noting that Garcetti had exempted speech concerning “academic scholarship or classroom instruction,” the court decided that “the instance case has nothing to do with academic freedom or a challenged suppression of unpopular ideas… The speech at issue here could have occurred just as easily in a private office, or on a loading dock.”
2010 U.S. Dist. LEXIS 24210 (S.D. Ohio Mar. 15, 2010)
Dr. Elton Kerr, an OB/GYN, was an assistant professor at Wright State School of Medicine and was employed by an affiliated organization of the school to perform medical services. Dr. Kerr also served as Director of the Center for Women’s Health at the Miami Valley Hospital, where most of Wright State faculty’s clinical work was done. In 2005, Wright State terminated Dr. Kerr’s appointment because it claimed he had breached his employment contract by, among other things, failing to maintain active privileges at Miami Valley Hospital. Dr. Kerr sued, alleging that his supervisor had retaliated against him, in violation of the First Amendment, because Dr. Kerr advocated for vaginal delivery over Caesarean sections (C-Sections) in his class and in teaching hospital resident physicians. A federal district court in Ohio concluded that Dr. Kerr’s advocacy of vaginal delivery over C-Sections was a matter of public concern, noting several recent newspaper articles about C-Sections. The court also rejected defendants’ argument that Dr. Kerr’s speech was not protected under Garcetti, holding that “recognizing an academic freedom exception to the Garcetti analysis is important to protecting First Amendment values. Universities should be the active trading floors in the marketplace of ideas.” The case is currently on appeal before the Sixth Circuit.
7:07-cv-00064-H (E.D.N.C. Mar. 15, 2010)
Michael Adams is a tenured associate professor at the University of North Carolina-Wilmington (UNCW) and a self-described conservative Christian. His political discussions with faculty and his public political commentary – including a column he published on Townhall.com, in which he criticized the university as religiously intolerant, as well as a related political book – sparked several incidents at UNCW. Adams applied for a promotion to full professor, listing his Townhall.com column and related political book in his promotion application. After he was denied the promotion, he sued, alleging this denial was retaliation for his political speech and speech criticizing UNCW. A federal district court in North Carolina granted defendants’ motion for summary judgment, concluding that Adams’ speech was not protected by the First Amendment under Garcetti. The court reasoned that the fact that Adams included the column and book in his promotion application was “an implicit acknowledgment that they were expressions made pursuant to his professional duties,” and that this inclusion “trumped all earlier actions,” including the university’s previous disclaimers of the views Adams expressed in his columns. In so holding, the court further implied that all materials in an application for promotion would be considered “pursuant to” a professor’s “official duties,” and therefore not be entitled to First Amendment protection under Garcetti. The case is currently on appeal before the Fourth Circuit.
2010 U.S. Dist. LEXIS 37545 (W.D. Pa. Apr. 15, 2010)
Tammy Whitfield was an assistant superintendent in the Pennsylvania Chartiers Valley School District who testified at the disciplinary hearing of a teacher in the district. Two board members attended the hearing and loudly expressed their disapproval of her testimony. After the board later failed to renew her 5-year contract, Whitfield filed suit alleging that she had been retaliated against for her testimony in violation of her free speech rights. The defendants argued that Whitfield’s speech was not protected under Garcetti, but a federal district court in Pennsylvania distinguished Garcetti on the grounds that the school board had no right to control the content or manner of Whitfield’s testimony. Indeed, such control would violate the due process rights of Whitfield and the teacher being investigated, said the court. Then the court applied the Pickering-Connick test to Whitfield’s speech, finding that: (1) her testimony was a matter of public concern both because of its setting in front of an official government adjudicatory body, and because it was a local controversy that divided public opinion and prompted several newspaper articles; and (2) the balancing of interests favored Whitfield because the defendants failed to show that her testimony damaged any government interest in efficiency or effectiveness.
2010 U.S. Dist. LEXIS 24919 (E.D.N.Y. Mar. 17, 2010)
Two faculty members at City University of New York criticized their department chairperson, claiming she was bypassing faculty committee processes and was biased in her handling of faculty evaluations. The faculty alleged that the department chair retaliated against them for these complaints, in violation of the First Amendment. A federal district court in New York held that their complaints about committee matters were not protected speech under Garcetti because they “involved employee, as opposed to citizen, speech” that was “ ‘part and parcel’ of plaintiffs’ concerns about their ability to properly execute their duties as faculty members elected to, and serving on, various committees.” The Court also held that the plaintiffs’ other complaints about personnel decisions did not involve matters of public concern because they “were complaining about matters affecting them, and them alone” and their motivation in complaining “was plainly to redress personal grievances.”
Case No. 09-1688, 2010 U.S. App. LEXIS 9976 (6th Cir. May 17, 2010)
Susan Fox was a Michigan elementary school special-education teacher who complained to her supervisors that her teaching load exceeded the legal limit. In 2007 the school decided not to renew her probationary teaching contract, citing her failure to complete required student Medicaid reports on time, her unauthorized delegation of responsibilities to teaching assistants, and her failure to provide the minimum required instructional time to students. Fox sued, claiming the non-renewal was retaliation for her speech in violation of the First Amendment. The Sixth Circuit held that Fox’s complaints were not protected speech under Garcetti, noting that “speech by a public employee made pursuant to ad hoc or de facto duties not appearing in any written job description is nevertheless not protected if it ‘owes its existence to [the speaker’s] professional responsibilities.’” It determined that Fox’s complaints “‘owed [their] existence to” her teaching responsibilities and were therefore not protected. The court also relied on the fact that Fox’s complaints were directed solely to her supervisor, rather than the general public, distinguishing other cases where plaintiffs had been successful on the grounds that they involved speech “outside the ordinary chain of command.”
Case No. 2:08cv00235 (S.D. Ohio June 7, 2010)
Scott Savage was the head reference librarian at Ohio State University at Mansfield. In 2006, Savage served on a committee choosing a book to assign to all incoming freshman. His suggestion, The Marketing of Evil – a book that an Ohio federal district court found contained “a chapter discussing homosexuality as aberrant human behavior that has gained general acceptance under the guise of political correctness” – led to considerable controversy among campus faculty. Several gay faculty members filed sexual harassment complaints against Savage with the university, and Savage filed his own complaints of harassment against several faculty members. After the university rejected both sides’ charges, Savage resigned and sued, claiming he was retaliated against in violation of the First Amendment. The federal district court in southern Ohio held that Savage’s recommendation was made “pursuant to his official duties” and therefore not protected speech under Garcetti. The court decided that “it [made] no difference that [Savage] was not strictly required to serve on the committee.” Although noting that several other Ohio Southern District Court decisions had recognized Garcetti’s academic freedom reservation, the court held that Savage’s speech did not fall within this category: “The recommendation was made pursuant to an assignment to a faculty committee… [and], without exceptional circumstances, such activities cannot be classified as ‘scholarship or teaching.’”
2010 U.S. Dist. LEXIS 50501 (E.D.N.Y. May 20, 2010)
A federal district court in New York dismissed the claim of an eighth-grade New York City public school teacher who was suspended after leading a class discussion about HIV/AIDS prevention. The New York State Board of Education lesson plan directed teachers to: describe sexual behaviors that may result in HIV transmission, define relevant terms, and give students advice on how to reduce the risk of infection. Faith Kramer, who has been a New York City school teacher for 26 years, asked students for words describing sexual acts, body parts, and bodily fluids. She then wrote the slang words they provided on the chalkboard next to their medical equivalents. The next day the assistant principal informed her that, due to parent complaints, Kramer was being investigated for violations of the school policy against “verbal abuse.” During the investigation, Kramer was removed from her teaching and extracurricular school duties and (for the first time in her career) received an unfavorable performance evaluation.
Kramer sued in federal court claiming that the school had violated her free speech and due process rights, as well as that the school’s “verbal abuse” policy was unconstitutionally vague. In analyzing Kramer’s free speech claim, the district court noted that federal courts differ in how to analyze teachers’ instructional speech. It also noted that the Supreme Court had not decided whether “speech related to scholarship or teaching” should be subject to the Garcetti “pursuant to official duties” analysis. Nevertheless, the district court concluded that Kramer’s speech “did not relate to a matter of public concern and fell outside the protection of the First Amendment” because it was “pursuant to her official duties.” The court further held that, even if the Garcetti analysis did not apply, Kramer’s speech would not be protected because it was “school-sponsored… intend[ing] to implement New York State regulations”; such speech, the court said, fell within the “broad authority of schools to regulate or restrict.” However the court found that the school’s “verbal abuse” policy was unconstitutionally vague when applied to Kramer because the language of the policy did not “encompass Ms. Kramer’s conduct on any reasonable construction” and therefore failed to give her adequate notice that her HIV/AIDS lesson would violate it.
In these two related cases decided on the same day, a federal district court in Michigan ruled that the Garcetti “official duties” analysis does not apply when public employees speak on a matter of public concern behalf of a union or another organization, rather than in their capacity as public employees.
In Petrich, a police officer for the City of Flint, Michigan, was also the president of the Flint branch of the African-American Police League (AAPL). After a new acting police chief was appointed, Officer Petrich strongly criticized the appointment in a local newspaper interview in which he was identified as the president of the AAPL. He was then disciplined under a new policy preventing police officers from speaking to the media without prior permission and he sued, claiming that the policy was unconstitutional and that the city had violated his First Amendment free speech rights. The court first ruled that Officer Petrich had spoken on a matter of public concern; in the court’s view, “public safety concerns require a well-run police force, and [Petrich] expressed his view that this expectation would not be met under [the acting chief’s] leadership. Nothing in [Petrich’s] comment indicates a purely personal vendetta . . . .” The court also ruled that Garcetti did not strip Officer Petrich’s speech of protection; because the City of Flint had “no interest in controlling the speech of the AAPL,” where Officer Petrich “spoke to the media in his capacity as president of the AAPL, rather than as a police officer, Garcetti does not bar his First Amendment claims.” Finally, the court ruled that the City failed to show that Officer Petrich’s comments interfered with the operations of the police department or caused disharmony among his co-workers, and that the AAPL’s interest in expressing its views was therefore greater than the City’s in maintaining police discipline. As the court further noted, “Plaintiff’s statements as head of the AAPL do not undermine the authority of the police chief. Although the AAPL’s views may conflict with Defendant’s, this does not constitute insubordination.” The court did emphasize that Officer Petrich was authorized to speak on behalf of the AAPL, and suggested that that was a critical element of its decision.
Speer also involved a police officer for the City of Flint, who was president of the Flint Police Officers’ Association (FPOA), the police officers’ union. Officer Speer spoke to the media – as he had frequently done in the past in his capacity as union president – about his dissatisfaction with the appointment of the new acting police chief. Pursuant to the new media policy, he was disciplined, and he sued, alleging that his First Amendment rights had been violated. The court first concluded that Speer’s speech was on a matter of public concern, observing that “Flint residents have a strong interest in the correct operation of the Flint Police Department because of its central role in maintaining public safety. They therefore have an interest in Defendant’s attempts to silence the police union.” The court also noted that Speer’s comments were “particularly relevant to outsiders, as they would be most affected by Defendant’s decision to restrict statements to the media.” The court next ruled that Speer’s speech remained protected after Garcetti. As the court reasoned, quoting to Garcetti, “the City’s interest in ‘controlling speech’ and ensuring ‘substantive consistency’ is considerably reduced in connection with the speech of a union official, due to the inherent tension between the union and the administration. The collective bargaining system envisions a dynamic between employer and union [that] is unlike the relationship between employer and employee; this includes the expression of sometimes conflicting opinions. An employer cannot expect to control the union’s speech in the same way it would control an employee’s.” Finally, the court ruled that Speer’s speech did not interfere with the performance of his duties or cause disharmony among his coworkers. As the court drily noted, “given the actions taken just prior to Plainitff’s discipline, such as closing the jail and laying off police officers, some discord between the police officers’ union and the administration could be expected.” Because the City did not exercise authority over Speer when he spoke as the president of the FPOA, his statements on behalf of the FPOA did not undermine the police chief’s authority; as the court put it, “although the union’s views may conflict with Defendant’s, this does not constitute insubordination.”
2011 U.S. Dist. LEXIS 42055 (S.D.N.Y. Feb. 9, 2011)
In this case, Kimberly Ann Kohlhausen, former Chairperson of the SUNY Rockland Community College English Department and tenure-track Instructor of Philosophy, filed a lawsuit against the college. Among other things, Kohlhausen alleged that a student in one of her classes had been disruptive, and reported the incidents to her supervisors and to the chairperson of the community college’s Behavioral Awareness and Intervention Committee. Kohlhausen also spoke about the incidents with several colleagues. Shortly thereafter, the Board of Trustees permanently rescinded Kohlhausen's reappointment for the upcoming school year, and Kohlhausen sued, claiming that the Board’s action was in retaliation for her speech in violation of the First Amendment.
The district court here concluded that Kohlhausen had spoken on a matter of public concern; as the court noted, Kohlhausen claimed that she reported the student’s behavior "in the wake of tragedies suffered at Columbine and Virginia Tech.” Under Garcetti and Weintraub (described above), however, Kohlhausen’s complaints to her supervisors and to the committee were not protected by the First Amendment because they were “pursuant to her official duties”; as the court put it, she used channels of complaint “available only to employees and not to citizens.” Her complaints to her colleagues could, however, be protected: “[C]onversations with co-workers lie outside the scope of a teacher's employment duties where teachers have no official duty to discuss the issue with colleagues and further do not engage in such discussions through a school-instituted dispute resolution process.” The court therefore allowed her lawsuit to go forward to the extent that her First Amendment claims were based on her conversations with her co-workers.
Ivor van Heerden, a coastal geologist and hurricane researcher, began his full-time faculty service at Louisiana State University (LSU) in 1992, when he was appointed as associate professor-research. In 2000, van Heerden co-founded the LSU Hurricane Center and was serving as its deputy director when Hurricane Katrina hit the Gulf Coast in August 2005. Following the storm, van Heerden was selected to head a group of scientists charged with investigating the causes of the extensive flooding in New Orleans. As a result of his research, van Heerden began speaking out publicly about his concerns that the US Army Corps of Engineers had failed to properly engineer the levees in New Orleans, causing a “catastrophic structural failure” which led to the city’s flooding. In response to these comments, which they challenged , the LSU administration ordered van Heerden to stop making public statements and ultimately removed him from the group of scientists researching the New Orleans flooding. In May 2006, van Heerden published The Storm in which he outlined his theories concerning the Army Corps’ role in the levee failures and exposed LSU’s efforts at silencing him. LSU responded by further stripping him of his teaching duties and finally refused to renew his contract after nearly 20 years of employment with the university.
Following the termination of his services, van Heerden sued LSU for a variety of claims including defamation, retaliation based on his protected First Amendment speech, and breach of contract. Through a series of decisions the federal district court for the Middle District of Louisiana dismissed a number of his claims, but on October 20, 2011, the court ruled that van Heerden could proceed with arguing that the administration’s action to terminate his appointment was in retaliation for his public comments about the culpability of the Army Corps of Engineers. It is especially important to note that the court expressed particular concern about what it viewed as the misapplication of Garcetti’s principles to academic speech. Specifically, the court stated that it “shares Justice Souter’s concern that wholesale application of the Garcetti analysis to the type of facts presented here could lead to a whittling-away of academics’ ability to delve into issues or express opinions that are unpopular, uncomfortable or unorthodox. Allowing an institution devoted to teaching and research to discipline the whole of the academy for their failure to adhere to the tenets established by university administrators will in time do much more harm than good.”
An AAUP investigating committee’s report on the van Heerden case, published in July 2011, concluded that the administration “decided not to retain Professor van Heerden largely in retaliation for his continuing dissent from the prevailing LSU position on the failed levees and the New Orleans flooding, thereby violating his academic freedom."
The AAUP will continue to monitor van Heerden’s legal case as it moves forward through the courts
(updated 11/11)