Jensen v. Brown, No. 23-2545 (9th Cir. 2024)

On February 26, 2024, the AAUP and the Nevada Faculty Alliance filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in support of a math professor who faced retaliation from college administrators after he voiced concerns about the lowering of curriculum standards and worsening respect for shared governance.

The case was brought by Dr. Lars Jensen, a tenured professor in the mathematics and physical sciences division at Truckee Meadows Community College in Nevada. According to Jensen, for many years, the college had continually altered its curriculum standards to make it easier for students to complete math courses and simultaneously ignored internal procedures relating to shared governance. Jensen voiced his concerns in connection with these issues in various ways, including in email communications and in a handout he distributed at a mathematics summit organized by the college. In January 2020, at the math summit, Jensen attempted to speak out on these issues at a question-and-answer session but was denied a chance to talk by the college’s dean of sciences. Jensen subsequently distributed a handout he had prepared to attendees, which outlined his concerns with the college’s “Co-Requisite Policy,” a policy promulgated by the Nevada System of Higher Education Board of Regents that placed students into college-level math classes despite deficiencies they might have in basic subjects.  Shortly after the summit, college administrators took a number of disciplinary actions against Jensen, including a reprimand for “insubordination” and a lowered evaluation rating that departed from the rating given him by the department chair. Jensen filed suit, alleging claims including retaliation against his exercise of First Amendment rights. The district court dismissed Jensen’s suit, ruling that his First Amendment claims against the college officials in their individual capacities did not implicate a “clearly established” right and were therefore barred by qualified immunity.

The amicus brief, which will bring to the court of appeals’ attention longstanding AAUP statements on academic freedom, argues that the First Amendment right of public university and college faculty to speak on matters related to teaching—including criticism of important changes to curriculum standards—is clearly established and has long been understood as being essential to academic freedom. Such speech implicates core elements of academic freedom, “a value that the Supreme Court has long recognized as being a special concern of the First Amendment and that is clearly established in the academic profession, as decades of AAUP statements attest.”

The AAUP’s brief explains that the district court’s erroneous conclusion that Jensen’s constitutional right to engage in such speech was not clearly established resulted from a misreading of the Supreme Court’s decision in Garcetti v. Ceballos and the court of appeals’ subsequent decision in Demers v. Austin. As the court of appeals explained in Demers, the First Amendment right of faculty to engage in academic speech was recognized long before Garcetti, and Garcetti did nothing to alter that clearly established right. All that Garcetti did was to temporarily muddy the waters regarding the protection of academic speech engaged in pursuant to a faculty member’s official duties. Demers clarified the situation in 2014 by clearly and unequivocally affirming that such speech remains protected by the First Amendment.

Finally, the AAUP’s brief argues that Jensen’s speech is entitled to First Amendment protection because it involved “matters of public concern” and because Jensen’s interest in speaking on those matters outweighed any interest the college had in restricting him from doing so. Jensen’s speech addressed significant aspects of a public college’s curriculum standards and of the college administration’s disregard for shared governance in implementing those standards. The speech did not focus on a narrow personnel or internal dispute; rather, it was widely disseminated and concerned a matter of significant importance to the broader community. As the brief maintains, faculty members have “a compelling interest in speaking on important curriculum issues that are matters of public concern, and their right to do so falls squarely within the core of academic freedom.” At the same time, a college has no legitimate interest in restricting such speech or punishing those engaged in such speech because “the proper and effective functioning of colleges and universities requires that college administrators respect academic freedom, and any restrictions on such speech therefore ultimately undermine the functioning of the institution.”