An interesting academic free speech case in Washington State now in the Court of Appeals pits tenured faculty free speech rights against employer rights. Here is a detailed summary of the case and what is at stake by the journalism professor who is the main plaintiff.
WSU J-Professor Predicts U.S. Appeals Court Will Deny Faculty Right to Criticize Administrators
A journalism professor who filed a free-speech lawsuit against four administrators at Washington State University is predicting the Ninth Circuit Court of Appeals will deny university professors, as employees, the right to criticize administrators and their policies.
“If I am right, it means the balance of power at universities in Washington state and six other western states will be radically altered,” said David Demers, an associate professor of communication in The Edward R. Murrow College of Communication at WSU. “The decision will undermine shared governance, a century-old principle in which professors share power with administrators when it comes to making decisions that affect university budgets and programs.”
Demers filed the lawsuit (Demers v. Austin, et al.) in 2010 when he was a tenured professor at WSU. He asserted that administrators associated with the Murrow program punished him in his annual reviews after he submitted a 7-Step Plan to improve the quality of the Murrow program and pledged to donate $100,000 of his own money if the university implemented it. The plan, which recommended a major restructuring of the program including the goal of seeking national accreditation, angered many administrators and faculty.
The four defendants, represented by the Washington state attorney general’s office, argued that tenured faculty like Demers, as employees, do not deserve free-speech protection. The AG’s legal position has unwittingly pitted the Murrow journalism program against two free-speech organizations. The American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression wrote a joint amicus curiae brief in support of plaintiff Demers.
“Win or lose, the legal position that faculty do not deserve First Amendment rights forever taints the good name of broadcaster Ed Murrow as well as the College that bears his name,” Demers said. “This could have been avoided if the state attorneys had fought the case on its merits. But administrative bureaucracies don’t always act on principle.”
In June 2011, a U.S. District Court judge in Spokane agreed with the defendants that faculty do not deserve free-speech protection. Judge Robert H. Whaley cited as precedent a 2006 U.S. Supreme Court case, Garcetti v. Ceballos, which held that public employees do not have First Amendment protection for speech connected to their jobs. Public employees only have protection when they speak as private citizens.
The high court left open the door of whether professors, as teachers or researchers, have more free speech protection than other government employees. However, the court did not address the issue of whether professors deserve protection when they speak in their service roles, which often involves criticizing administrators when it comes to making decisions that affect university budgets and programs.
Demers appealed the district court decision, arguing that faculty should not be punished for criticizing administrators.
But in Seattle on November 7, 2012, two of the three appeals court judges who heard oral arguments in the case expressed doubts about whether Demers’ 7-Step Plan was private speech, even though the cover letter identified him as a private citizen.
“I have trouble — speaking only for myself — treating that 7-Step Plan as cleanly private speech,” said William A. Fletcher. “I understand that Dr. Demers sets it up that way. On the other hand, it originates when he is a member of a committee. It's clearly undertaken in tight relationship to his job and the things that he cares about in his job. He is suggesting an important restructuring of two departments. I mean, I have trouble seeing that as purely private speech.”
Demers’ attorney, Judy Endejan of Graham & Dunn of Seattle, disagreed.
“Well, first of all, your honor, the question of whether it is part of his job duties, as this court has said in at least five cases, is a mixed question of fact and law that should be reserved for the trier of fact. In this case, the district court basically accepted all of the evidence that the university put forth and did not consider the evidence that Dr. Demers put forth ... . The 7-Step Plan as one component recommended a splitting of the mass comm[unication] and comm[unication] studies. The rest of it is not covered anywhere by any connection with his work in connection with the structure committee.”
“You know, I disagree with that,” Fletcher responded. “The 7-Step Plan ... is a thoughtful proposition for restructuring how journalism is taught, how the faculty is organized, how money is raised — all of that has to do with running of the institution in a very important way.”
Demers said the issue of shared governance never came up during the hearing.
“I’m not sure whether the judges are aware of the consequences of a ruling which denies professors free-speech protection when they offer alternative plans for structuring a university or when they criticize administrators. Such a decision will have tremendous adverse consequences for the balance of power at universities. No professor will feel secure in criticizing her or his university administrators.”
A ruling from the appeals court is expected in January or February 2013.