Ninth Circuit Modifies, Broadens Ruling in Important Academic Freedom Case

Back in September, Washington State University (WSU) Professor David Demers won a victory for faculty speech rights in the U.S. Court of Appeals for the Ninth Circuit in the case of Demers v. Austin. As my colleague Susan explained in detail, the Demers court joined the Fourth Circuit in holding that academic freedom concerns warrant an exception to the general rule set forth by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006), that the First Amendment does not protect government employees from discipline or retaliation based on speech made pursuant to their employment.

On January 29, the Ninth Circuit withdrew its September opinion and issued a new, modified opinion. While the ultimate result of the case remained the same, the court clarified its holding in a way that arguably protects the First Amendment rights of faculty at public colleges even more broadly.

In its superseding opinion, the court went beyond its original statement that “teaching and academic writing” enjoy First Amendment protection and—quoting Garcetti itself—found that speech “related to scholarship or teaching” (emphasis added) is also protected. In so ruling, the court analyzed Demers’ speech and found that it was related to teaching because it advocated changes to WSU’s College of Communications that would have fundamentally altered and transformed the way its subjects would be taught to students.

The Ninth Circuit’s explicit recognition that academic freedom can extend beyond the actual acts of teaching or conducting scholarly research provides necessary and important breathing room for faculty members to explore unconventional and controversial ideas without fear of retaliation by their employers.

We hope that courts around the country continue to recognize that the nature of higher education as a marketplace of ideas renders it incompatible with the reduced First Amendment protections generally afforded to government employees. Check back to The Torch for future developments on this case.