Appeals Court Ruling Bolsters Professors’ Free-Speech Rights in the West
WSU Professor’s Plan to Improve Murrow Program Qualifies for Free-Speech Protection
A U.S. District Court judge erred when he ruled that a Washington State University professor was not entitled to First Amendment protection when he developed a controversial plan for restructuring and improving a journalism program, the Ninth Circuit Court of Appeal ruled Wednesday.
“The decision is a great victory for those who cherish academic freedom, free-speech ideals and shared governance,” said David Demers, a former tenured WSU professor who created the plan to improve the quality of education in the Edward R. Murrow School of Communication.
“Professors should be able to criticize administrators and their policies and play an active role in the affairs of the university,” added Demers, who left the university in 2012 and currently teaches a mass media law course in The Walter Cronkite School of Journalism and Mass Communication at Arizona State University. “The decision bolsters the idea that free-speech protection for professors extends beyond their academic research programs and the classroom. It covers our service role, too.”
Demers brought suit in 2010 alleging that four university administrators retaliated against him for distributing a “7-Step Plan” that sought to improve the quality of the Murrow program (Demers v. Austin, et al.).
The plan asked university administrators to give more power to professional faculty, to seek national accreditation for the Murrow School, and to remove a non-journalism major from the school. The latter program only served 60 of the 1,000 majors in the Murrow School but was consuming one-fourth of the school’s resources, Demers said. Demers also offered to donate $100,000 of his own money if the university implemented the plan.
University administrators ignored the plan.
When he submitted the plan, Demers said he assumed his speech was protected under the principles of shared governance and academic freedom.
The WSU administrator-defendants disagreed.
But instead of fighting the lawsuit on its merits, the defendants asked Spokane District Court Judge Robert H. Whaley to declare that professors, as employees, do not deserve First Amendment protection.
Whaley agreed and threw the case out of court, before it went to trial.
To support his decision, he cited the 2006 U.S. Supreme Court ruling in Garcetti v. Ceballos, which held that government employees (an assistant prosecuting attorney in this case) are not entitled to free-speech protection, even if those employees report criminal wrongdoing on the part of other government workers (the attorney learned that police officers had fabricated evidence to obtain a search warrant).
The high court ruled 5-4 against the “whistle blower,” with the conservative justices outflanking the moderates and liberals. The majority essentially ruled that it is better to control employees than to expose corruption, Demers said.
But the Ninth Circuit Court of Appeals panel, headed by Judge William A. Fletcher, ruled in the Demers case that Garcetti does not apply to professors, because “teaching and academic writing are at the core of the official duties of teachers and professors. Such teaching and writing are ‘a special concern of the First Amendment.’ ... We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.”
The appeals court ruling means that, to receive First Amendment protection, a professor’s speech must address matters of public concern and the professor’s interest in the matter must outweigh the state’s interest in promoting efficiency on the job.
The appeals court remanded the Demers case to the Spokane District Court for further review. A trial date has not been set.
The defendants could appeal to the U.S. Supreme Court.
But Demers said this would hurt the reputation of the Murrow program even more.
“From the beginning, it never made any sense that administrators working in and supervising the Murrow journalism and mass communication programs would argue that journalism professors don’t deserve free-speech protection,” Demers said. “I think this is a case of where the administrative bureaucracy was so focused on winning that it forgot about the importance of principles. Free speech is a principle worth defending.”
Demers said the ruling is another black mark on the administration of WSU President Elson Floyd, who in 2009 concealed a report from the Washington state Auditor’s Office which concluded that a WSU internal audit of Demers was tainted by a conflict of interest.
The appeals court also ruled that the defendants have qualified immunity from financial damages because the Ninth Circuit has never clarified Garcetti. This means Demers cannot seek punitive damages. But Demers, who said the case has cost him about $350,000 so far, said he didn’t care.
“This was a case about principles and free-speech rights, not money.”
The American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression penned a friend-of-the-court brief in support of free-speech rights for faculty.
The appeals court ruling, if it stands, will affect public universities nine states, including Arizona, California, Nevada, Montana, Washington state, Idaho, Hawaii, Alaska and Utah.
Demers taught at WSU for 16 years. He quit in 2012 to spend more time writing about civil liberties issues.
WSU has implemented some aspects of Demers’ 7-Step Plan, but the Murrow program, now a college, is not accredited by the Accrediting Council on Education in Journalism and Mass Communication. The Cronkite School is.
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