Demers v. Austin, 746 F.3d 402 (9th Cir. Wash. Jan. 29, 2014)

In this important decision, the Ninth Circuit Court of Appeals reinforced the First Amendment protections for academic speech by faculty members.  Adopting an approach advanced in AAUP’s amicus brief, the court emphasized the seminal importance of academic speech. Accordingly, the court concluded that the Garcetti analysis did not apply to "speech related to scholarship or teaching,” and therefore the First Amendment could protect this speech even when undertaken "pursuant to the official duties" of a teacher and professor.

Professor Demers became a faculty member at Washington State University (WSU) WSU in 1996 and he obtained tenure in 1999. Demers taught journalism and mass communications studies at the university in the Edward R. Murrow School of Communication.  Starting in 2008, Demers took issue with certain practices and policies of the School of Communication. Demers began to voice his criticism of the college and authored two publications entitled 7-Step Plan for Improving the Quality of the Edward R. Murrow School of Communication and The Ivory Tower of Babel. Demers sued the university and claimed that the university retaliated against him by lowering his rating in his annual performance evaluations and subjected him to an unwarranted internal audit in response to his open criticisms of administration decisions and because of his publications.

The district court dismissed Demers’ First Amendment claim on the ground that Demers made his comments in connection with his duties as a faculty member.  Unlike most recent cases involving free speech infringement at public universities, the district court’s analysis did not center on the language from Garcetti v. Ceballos, 547 U.S. 410 (2006). Instead, the court applied a five part test set out by the Ninth Circuit in a series of public employee speech cases and found that Demers was not speaking as a private citizen on matters of public concern. Therefore, the district court found his speech was not protected by the First Amendment.

Demers appealed to the Ninth Circuit. The AAUP joined with the Thomas Jefferson Center for the Protection of Free Expression to file an amicus brief in support of Demers.  The amicus brief argued that academic speech was not governed by the Garcetti analysis, but instead was governed by the balancing test established in Pickering v. Board of Education, 391 US 563 (1968). In two opinions, the Ninth Circuit agreed and issued a ruling that vigorously affirmed that the First Amendment protects the academic speech of faculty members.

In an initial opinion issued on September 4, 2013, the Ninth Circuit held that Garcetti did not apply to “teaching and writing on academic matters by teachers employed by the state,” even when undertaken "pursuant to the official duties" of a teacher or professor. Demers v. Austin, 729 F.3d 1011 (September 4, 2013). Instead, as argued in the amicus brief, the court held that academic employee speech on such matters was protected under the Pickering balancing test. The court found that the pamphlet prepared by Demers was protected as it addressed a matter of public concern but remanded the case for further proceedings. The University filed a petition for panel rehearing and a petition for rehearing en banc.

On January 29, 2014, the U.S. Court of Appeals for the Ninth Circuit issued an opinion denying the petition for panel rehearing and the petition for rehearing en banc and withdrawing and modifying its previous opinion.. Originally, the court held that "teaching and writing on academic matters" by publicly-employed teachers could be protected by the First Amendment because they are governed by Pickering v. Board of Education, not by Garcetti v. Ceballos. In its 2014 superseding opinion, the Ninth Circuit expanded that ruling to hold that Garcetti does not apply to "speech related to scholarship or teaching" and reaffirmed that “Garcetti does not – indeed, consistent with the First Amendment, cannot – apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.”   

The Ninth Circuit held specifically that the 7-Step plan was “related to scholarship or teaching” within the meaning of Garcetti because “it was a proposal to implement a change at the Murrow School that, if implemented, would have substantially altered the nature of what was taught at the school, as well as the composition of the faculty that would teach it.” The court thus considered whether the Demers pamphlet was protected under the Pickering balancing test. Academic employee speech is protected under the First Amendment by the Pickering analysis if it is a (1) matter of public concern, and (2) outweighs the interest of the state in promoting efficiency of service. The court held that the pamphlet addressed a matter of “public concern” within the meaning of Pickering because it was broadly distributed and “contained serious suggestions about the future course of an important department of WSU.” The case was remanded to the district court, however, to determine (1) whether WSU had a “sufficient interest in controlling” the circulation of the plan, (2) whether the circulation was a substantial motivating factor in any adverse employment action, and (3) whether the University would have taken the action in the absence of protected speech.