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Constitutional – Free Speech – Labor & Employment – Public Employees – University Professor

Constitutional – Free Speech – Labor & Employment – Public Employees – University Professor

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The plaintiff-professor’s comments at a faculty meeting and in an email to faculty were job-related, so he was speaking as an employee rather than as a citizen. While his comments on his personal blog dealt with matters of public concern, he has failed to sufficiently allege that actions taken against him ten months later were causally related to his blog post.
We affirm the district court’s dismissal of plaintiff’s complaint.
A faculty meeting in the spring of 2016 addressed a proposal to add a question about diversity to student course evaluations. Plaintiff suggested that the proposal had been made without proper research. This incident led to plaintiff being labeled a “bully.”
In April 2018, a journal article criticized the faculty’s search to fill a position. Plaintiff sent out a faculty-wide email with a link to the article and a sarcastic comment to the search committee chair: “Keep up the good work, Alyssa!”
In September 2018, plaintiff criticized the Association for the Study of Higher Education (ASHE) with a personal blog post entitled, “ASHE Has Become a Woke Joke.” The blog post stirred controversy on social media, and the keynote speaker at an ASHE conference referred to the post. Penny Pasque, the then-head of the department in which plaintiff served, asked plaintiff to address students’ concerns about his blog post, but plaintiff failed to do so.
The department was reorganized, removing plaintiff from his program area. Plaintiff filed suit, alleging defendants had taken adverse employment action against him because of his protected speech.
The survey question comment and the faculty hiring email were unprotected speech. With respect to the survey question, plaintiff describes the incident as “nothing more that doing his job.” This clearly does not equate to a matter of public concern. While plaintiff’s speech was in his capacity as an employee, it was not a product of his teaching or scholarship.
The faculty hiring email expressed no viewpoint and made no mention of policy or anything else that might be of public concern. Instead, it was an unprofessional attack on one of plaintiff’s colleagues, sent only to other faculty members within the department. And it plainly was unrelated to plaintiff’s teaching or scholarship.
Both the survey question incident and the faculty hiring email addressed matters of personal interest and complaints over internal office affairs, rather than matters of public concern. And plaintiff’s speech was not related to his scholarship or teaching. Therefore, neither was protected speech.
As for the “Woke Joke” blog post, plaintiff has failed to show a temporal relationship between the post and the departmental reorganization. In fact, plaintiff’s complaint makes clear that he was removed from his program area because of his ongoing lack of collegiality, not because of the content of his blog post.
We cannot conclude that plaintiff has sufficiently alleged that the “Woke Joke” blog post was a “but for” cause of his removal from his program area.
(Richardson, J.) The mere fact that plaintiff chose to speak within the faculty context does not mean that he was speaking as an employee instead of a private citizen. Furthermore, it is hard to believe it was plaintiff’s job duty to make the comments he made.
There has been a wide-ranging public debate about how colleges ought to emphasize diversity, equity and inclusion. Reading the complaint in the light most favorable to plaintiff shows that its subject matter was well within the realm of this public debate.
Moreover, taking plaintiff’s complaint at its word, and drawing all reasonable inferences in his favor: But for his blog post, Pasque would not have asked plaintiff to hold a “community conversation,” and but for his hesitation to do so, she would not have removed him from his program area. That’s but-for cause, even with the blog post standing alone.
Drawing all reasonable inferences in plaintiff’s favor, the university threatened his tenure by removing him from his program area because of his protected speech. The university has not yet produced evidence to justify its decision. And no such evidence springs forth from the face of the complaint. So plaintiff’s claims ought to survive, and the district court’s contrary decision ought to be reversed.
Porter v. Board of Trustees (Lawyers Weekly No. 001-080-23, 43 pp.) (Stephanie Thacker, J.) (Julius Richardson, J., dissenting) No. 22-1712. Appealed from USDC at Raleigh, N.C. (Terrence Boyle, J.) Samanth Harris and Jonathan Vogel for appellant; Eric David, Joshua Stein, Kari Johnson and Vanessa Totten for appellees; Kathryn Valois, Ethan Blevins, Daniel Ortner, Darpana Sheth and Jeffrey Zeman for amici curiae. United States Court of Appeals for the Fourth Circuit

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