David Demers v. Erica Austin
746 F.3d 402
| 9th Cir. | 2014Background
- David Demers, a tenured associate professor at Washington State University and owner of Marquette Books, circulated a two-page "7-Step Plan" and drafts of an in-progress book "The Ivory Tower of Babel." He alleges university administrators retaliated in violation of his First Amendment rights.
- Demers prepared and circulated the Plan while serving on the Murrow School "Structure Committee," sent it to university leaders, alumni, media, and posted it online; he listed the Plan as a service activity in his annual report.
- The Plan proposed structural and curricular changes to strengthen the professional (Mass Communications) side of the school and sought to influence governance and accreditation.
- Demers did not place drafts of the book into the summary-judgment record; university officials acknowledged seeing portions in connection with sabbatical and online postings.
- The district court granted summary judgment for defendants, finding Demers’s writings were produced pursuant to his official duties under Garcetti and, alternatively, that the Plan did not address a matter of public concern. Demers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Plan and book drafts were made "pursuant to official duties" (Garcetti) | Demers: Plan and book were not part of official duties; Plan prepared/published via Marquette Books; thus Garcetti shouldn't bar protection | Defendants: Plan and related activity arose from Demers's committee role and faculty duties; therefore Garcetti removes First Amendment protection | Court: Plan and related dissemination were made pursuant to Demers's official duties (agree with district court) |
| Whether Garcetti applies to academic speech (teaching/scholarship) | Demers: Even if pursuant to duties, Garcetti should not apply to academic speech; academic freedom requires Pickering analysis | Defendants: Garcetti governs speech pursuant to official duties regardless of academic context | Court: Garcetti does not apply to "speech related to scholarship or teaching"; such speech is governed by Pickering balancing |
| Whether the Plan addressed a matter of public concern (Pickering) | Demers: Plan concerned curriculum, governance, use of public funds, and direction of a public university program — matters of public concern | Defendants: Plan was internal/professorial dispute or personal agenda not of public concern | Court: The Plan addressed matters of public concern (content, form, and context show public interest) |
| Whether drafts of the in-progress book support a retaliation claim | Demers: Drafts criticized the academy and contained references to WSU events, prompting retaliation | Defendants: No drafts in the record; insufficient evidence to show drafts caused retaliation | Court: Demers failed to present the drafts or sufficient detail in the record; cannot sustain claim based on Ivory Tower drafts |
| Qualified immunity for defendants | Demers: Defendants violated his clearly established First Amendment rights | Defendants: Law was unsettled post-Garcetti; reasonable belief their actions were lawful | Court: Because Ninth Circuit precedent was unsettled on Garcetti's application to academic speech, defendants are entitled to qualified immunity (but injunctive relief remains available) |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (when public employees speak pursuant to official duties, they are not speaking as citizens for First Amendment purposes; but Court reserved question re: scholarship/teaching)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balance public-employee speech on matters of public concern against employer's interest in efficient public service)
- Connick v. Myers, 461 U.S. 138 (1983) (speech is protected only if it addresses matters of public concern; content, form, and context control)
- Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589 (1967) (academic freedom is a special concern of the First Amendment)
- Sweezy v. New Hampshire, 354 U.S. 234 (1957) (freedom of inquiry and academic freedom are essential and constitutionally protected)
- Grutter v. Bollinger, 539 U.S. 306 (2003) (universities occupy a special niche in constitutional tradition regarding speech and academic freedom)
- Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550 (4th Cir. 2011) (Fourth Circuit held Garcetti does not apply in the academic context and addressed qualified-immunity implications)