A short excerpt from the >10,000-word Jensen v. Brown, decided yesterday by Ninth Circuit Judge Marsha Berzon, joined by Judges Richard Paez and John Owens:
Plaintiff Lars Jensen, a math professor at [Truckee Meadows (Nevada) Community College], voiced concerns about a policy change that he argues caused the math department to lower its curriculum standards. He alleges that soon after, Jensen was reprimanded, pressured to resign from another faculty member's tenure committee, given two consecutive negative performance reviews, and required to undergo an investigation and termination hearing…. We conclude that the district court erroneously dismissed Jensen's First Amendment retaliation claims….
In June of 2019, the Board of Regents for the [Nevada System of Higher Education] adopted a new "co-requisite policy." Under the co-requisite policy, students would be placed in college level math classes even if they needed remedial math instruction. Students who needed remedial math instruction would be required to take remedial classes as "co-requisites" alongside college level classes, instead of as "pre-requisites" before taking college level math courses.
To maintain course completion rates under this policy, TMCC's math department decided to lower the academic level of certain math classes…. Jensen sent an email to the math department faculty in which he expressed concerns about the department's new standards for coursework….
Julie Ellsworth, the Dean of Sciences at TMCC, facilitated a "Math Summit" to discuss the co-requisite policy's implementation "with the community." During a question-and-answer session following a presentation from Ellsworth, Jensen attempted to comment on the co-requisite policy. Ellsworth cut him off and announced that the question-and-answer session had ended. After Jensen again attempted to speak, Ellsworth directed him to the "parking lot," a whiteboard that was provided for Math Summit participants to post comments.
Jensen then went to his office and created a handout, titled "On the Math Pathways – Looking Under the Hood," which discussed his concerns with the new co-requisite policy. The one-page document criticized the fact that the math department, in response to the policy, decided to "lower the academic level of Math 120 so students will be able to complete the course at current rates." Jensen argued that this curriculum change would impact "31% of [TMCC's] degree[ ] and certificate programs by lowering the math[ ] and technical skills of graduates in these programs." He concluded by discussing the impact on the community, noting that local employers subsidize TMCC through tax revenue and expect in return to be able to hire qualified graduates.
Jensen returned to the Math Summit with copies of the handout. During a break in the Summit's programming, he went room to room distributing his handout to the participants. When he began passing out his handout in Ellsworth's room, she picked up the copies he had distributed and motioned for the participants in the room to pass their handout copies to her.
Jensen reminded Ellsworth that it was break time and that he was not being disruptive or disturbing anyone, but Ellsworth again instructed Jensen not to distribute the handout. Jensen then distributed his handout to two other rooms of Summit participants. When he returned to Ellsworth's room and attempted to disseminate his handout again, she directed him to stop. The pair went into the hallway to talk, and Ellsworth again told Jensen that he could not circulate his handout. During this conversation, she accused him of "disobeying her" and being a "bully," stated that his conduct was "disruptive," and warned him that he had "made an error by defying her." …
Jensen was reprimanded and subject to other discipline, and then sued, claiming this was retaliation forbidden by the First Amendment; and the Ninth Circuit held that his claim could go forward:
"The First Amendment shields public employees from employment retaliation for their protected speech activities." Where a public employer retaliates against an employee for workplace-related speech, the First Amendment requires "balanc[ing] … the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Educ. (1968). We have distilled Pickering and its progeny into a five-part inquiry:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
Only the first four prongs are at issue here….
[1.] Jensen's criticism of the changes in TMCC's mathematics curriculum addressed a matter of public concern. "[T]he preferable manner of operating [a] school system … clearly concerns an issue of general public interest." …
"If an employee expresses a grievance to a limited audience, such circulation can suggest a lack of public concern." "But limited circulation is not, in itself, determinative." "The form of the speech—complaints to staff and superiors rather than to the general public—does not remove it from the realm of public concern." … Although the audience to whom a public employee's speech is addressed may be instructive "[i]n a close case, when the subject matter of a statement is only marginally related to issues of public concern," the nature of Jensen's speech does not present a close question….
[2.] Next we must ask "whether the plaintiff spoke as a private citizen or public employee." The premise of this requirement, derived from Garcetti v. Ceballos (2006), is that generally, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." But Garcetti noted that it was not "decid[ing] whether the analysis [the Court] conduct[ed] … would apply in the same manner to a case involving speech related to scholarship or teaching." …
[We have] held that "Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed 'pursuant to the official duties' of a teacher and professor." Rather, speech "related to scholarship or teaching" is covered by the Pickering doctrine even if it was made pursuant to a public employee's official duties.
Not all speech made by a higher education employee relates to scholarship or teaching. For example, proposals "to allocate one additional teaching credit for teaching a large class instead of a seminar, to adopt a dress code that would require male teachers to wear neckties, or to provide a wider range of choices in the student cafeteria" are likely too attenuated from academic topics to be classified as relating to scholarship or teaching. Conversely, the scholarship or teaching exception does not require that the speech be published in an academic journal or uttered while instructing a class….
[S]peech about a school's curriculum is "related to scholarship or teaching" and so falls outside Garcetti's purview, even if that speech is not made while teaching a class or producing scholarship…. Jensen's speech concerned "what was taught at the school." It denounced the co-requisite policy and the resulting effect on standards for students' completion of math courses. Further, … Jensen rooted his criticism of the curriculum change in concerns over the quality of education students would receive. Because Jensen's speech was focused on the contents of TMCC's math curriculum, it relates to scholarship or teaching and does not come within Garcetti's bar on First Amendment protection for speech made pursuant to a public employee's official duties….
[3.] Jensen has also alleged facts that plausibly support the inference that his speech at the Math Summit was a substantial or motivating factor for the adverse employment actions….
[4.] A public employee's right to speak is not absolute and may be outweighed by the state's interest "as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering….
[T]he pleadings in this case do not reveal any state interest that clearly outweighs Jensen's. The Administrators' only clearly asserted state interest grounded in the pleadings is their assertion that Jensen distributed his handout in violation of Ellsworth's "express or implied directions." They maintain that, in doing so, Jensen engaged in "insubordination," which the state has a legitimate interest in preventing….
But the state's interest in punishing a disobedient employee for speaking in violation of their supervisor's orders cannot automatically trump the employee's interest in speaking. To be sure, one factor in assessing the extent of the state's interest in preventing disruption is whether the employee's speech "impairs discipline by superiors." But … the focus of this inquiry is whether there has been a disruption in the office's ability to operate: "[T]he very nature of the balancing test[ ] make[s] apparent that the state interest element of the test focuses on the effective functioning of the public employer's enterprise," not on whether the employee has been directed to cease speaking….
In assessing the state interest, there is good reason for focusing on the disruptive impact of the employee's speech, rather than simply disobedience to an order to stop speaking. If we were instead to allow an employer to prevail solely on the basis that the employee disobeyed the employer's order not to speak, employers would have carte blanche to "stifl[e] legitimate speech or penalize[e] public employees for expressing unpopular views." … This type of suppression is to the detriment of both the speaker and the listener, as it undermines "[t]he public interest in having free and unhindered debate on matters of public importance," which is a "core value of the Free Speech Clause." …
Nor do the pleadings suggest any other state interest that might justify the Administrators' actions, much less outweigh Jensen's interest in free expression on matters of public concern. Nothing in the complaint suggests that Jensen served in a "confidential, policymaking, or public contact role" where the "government's interest in avoiding disruption is magnified." Nor is it evident that Jensen's position was one where "personal loyalty and confidence are necessary." Jensen also was not employed in a police department or military agency where "[d]iscipline and esprit de corps are vital to its functioning." {We do not hold that Jensen could not have plausibly alleged a First Amendment retaliation claim if he were in such a role. We only note that the absence of such circumstances supports our conclusion that there is no apparent state interest clearly outweighing Jensen's interests.}
To the contrary, there is no indication in Jensen's pleadings that his speech impaired TMCC's functioning. Jensen alleges that he distributed the handouts in a non-disruptive manner, waiting until there was a break in the Math Summit's programming to pass them out. And several witnesses testified during Jensen's disciplinary hearing that he behaved professionally while distributing the handouts….
Consequently, we conclude that Jensen has pleaded a constitutional violation.
Of course, the court just held that Jensen had adequately alleged the violation; the time for finally determining the facts is still well in the future.
The court also concluded that the precedents were clear enough that defendants weren't entitled to qualified immunity. The court concluded, however, that plaintiff hadn't sufficiently alleged a violation of the Due Process Clause or the Equal Protection Clause, though it allowed him to amend his Complaint as to those claims.
Daniel Ortner (now at the Foundation for Individual Rights and Expression) argued the case for plaintiff.
The post Nevada Math Prof Alleges Discipline for "Voic[ing] Concerns About … the Math Department … Lower[ing] Its Curriculum Standards" appeared first on Reason.com.
