Court: University of North Texas professor’s First Amendment retaliation lawsuit over firing for calling ‘microaggression’ flyers ‘garbage’ can continue

A First Amendment lawsuit filed by a former University of North Texas adjunct professor who was non-renewed in 2019 for criticizing microaggressions can continue, a federal district court judge held on Friday. Along with denying the university’s motion to dismiss Nathaniel Hiers’ First Amendment retaliation claims, the court held that attempting to force Hiers to apologize likely comprised unconstitutionally compelled speech. The court also denied qualified immunity to the UNT administrators involved in the alleged retaliation, concluding that “any reasonable university official would have known that it was unconstitutional to discontinue [Hiers’s] employment because of his speech.”

FIRE first covered the suit, sponsored by Alliance Defending Freedom, when it was filed back in April 2020. As we summarized the facts at the time:

The trouble started in November 2019, when someone anonymously left a stack of flyers in the [UNT] faculty lounge explaining the concept of microaggressions, which the flyers described as “verbal and nonverbal behaviors” that “communicate negative, hostile, and derogatory messages to people rooted in their marginalized group membership.” According to his complaint, Hiers believes that the concept of microaggressions “hurts diversity and tolerance” because it “teaches people to see the worst in other people, promotes a culture of victimhood, and suppresses alternative viewpoints instead of encouraging growth and dialogue.” Indeed, microaggression theory has been the subject of much public debate, including — as the complaint notes — in FIRE president Greg Lukianoff and NYU social psychologist Jon Haidt’s recent book, “The Coddling of the American Mind.”

So in response to the flyers he disagreed with, Hiers wrote a note on the chalkboard in the faculty lounge that read “please don’t leave garbage lying around,” with an arrow pointing to [one of the] flyers. 

According to [Hiers’s] complaint, professors regularly leave comments and jokes on the faculty lounge chalkboard, often anonymously. But this time, Ralf Schmidt, chair of the math department, sent an email to the entire department with a photo of the comment, stating, “Would the person who did this please stop being a coward and see me in the chair’s office immediately. Thank you.” 

Friday’s decision by district court Judge Sean Jordan dismisses a number of Hiers’ claims, such as for breach of contract. However, he finds the professor “plausibly alleged that the university officials violated his right to freedom of speech,” as he spoke outside of his job duties as a private citizen on matters of public concern (citations omitted here, and in quotes below):

Hiers’s critique of the flyer on microaggressions transcended personal interest and touched on a topic that impacts citizens’ social and political lives. His speech did not address a personal complaint or grievance about his employment. The point of his speech was to convey a message about  the concept of microaggressions, a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education.

The court notably cited FIRE President and CEO Greg Lukianoff, Executive Director Robert Shibley, and First Amendment scholar and FIRE Legal Fellow David L. Hudson, Jr. (see page 22) for the proposition that debate over microaggressions is a matter of public concern. 

Friday’s decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure.

The court also pushed back on UNT’s assertion that Hiers’s language was “uncivil” or otherwise removed from the First Amendment’s protection, instead holding that “Hiers expressed the kind of pure speech to which the First Amendment provides strong protection.” 

In sum, Hiers met the burden, at this stage of the litigation, for his First Amendment retaliation claims to continue:

“Preserving the ‘freedom to think as you will and to speak as you think’; is both an inherent good, and an abiding goal of our democracy.” The university officials allegedly flouted that core principle of the First Amendment when they discontinued Hiers’s employment because of his speech. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech….

The court was also persuaded that UNT may have violated Hiers’s right to be free from compelled speech when administrators allegedly asked him to apologize for his speech:

Taking these allegations as true and viewing them in the light most favorable to Hiers, it is plausible that the university officials unconstitutionally punished Hiers for refusing to affirm a view — the concept of microaggressions — with which he disagrees…. Hiers has plausibly alleged that the university officials discontinued his employment — that is, punished him — because he did not express honest regret about his views and speech on microaggressions.

Nor was the judge moved by UNT’s argument that it did not compel speech by Hiers because it did not require him to publicly apologize:

To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period.

Friday’s decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure. FIRE will continue watching this case closely as it progresses.