David Demers v. Erica Austin , 746 F.3d 402 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID K. DEMERS, No. 11-35558
Plaintiff-Appellant,
D.C. No.
v. 2:09-cv-00334-
RHW
ERICA AUSTIN; ERICH LEAR;
WARWICK M. BAYLY; FRANCES
MCSWEENEY, ORDER AND
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted
November 7, 2012—Seattle, Washington
Filed January 29, 2014
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Gordon J. Quist, Senior District Judge.*
Order;
Opinion by Judge W. Fletcher
*
The Honorable Gordon J. Quist, Senior United States District Judge for
the Western District of Michigan, sitting by designation.
2 DEMERS V. AUSTIN
SUMMARY**
Civil Rights
The panel replaced its prior opinion, filed on September
4, 2013, and published at 729 F.3d 1011, with a new opinion,
denied a petition for panel rehearing, and denied a petition for
rehearing en banc on behalf of the court, in an action brought
pursuant to 42 U.S.C. § 1983 by a tenured associate
university professor who alleged that university
administrators retaliated against him in violation of the First
Amendment for distributing a short pamphlet and drafts from
an in-progress book.
The panel held that Garcetti v. Ceballos, 547 U.S. 410
(2006), does not apply to speech related to scholarship or
teaching. Rather, such speech is governed by Pickering v.
Board of Education, 391 U.S. 563 (1968). The panel
concluded that the short pamphlet was related to scholarship
or teaching and that it addressed a matter of public concern
under Pickering. The panel concluded, further, that there was
insufficient evidence in the record to show that the in-
progress book triggered retaliation against plaintiff. Finally,
the panel concluded that defendants were entitled to qualified
immunity from damages, given the uncertain state of the law
in the wake of Garcetti.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DEMERS V. AUSTIN 3
COUNSEL
Judith A. Endejan (argued), Graham & Dunn, PC, Seattle,
Washington, for Plaintiff-Appellant.
Kathryn M. Battuello (argued) and Catherine Hendricks,
Office of the Washington Attorney General, Seattle,
Washington, for Defendants-Appellees.
John Joshua Wheeler, Thomas Jefferson Center,
Charlottesville, Virginia, for Amici Curiae American
Association of University Professors and the Thomas
Jefferson Center for the Protection of Free Expression.
ORDER
The opinion filed on September 4, 2013, and published at
729 F.3d 1011, is withdrawn and replaced by the attached
opinion.
With the filing of this new opinion, the panel has voted to
deny the petition for rehearing. Judge W. Fletcher has voted
to deny the petition for rehearing en banc; and Judges Fisher
and Quist so recommend.
The full court has been advised of the petition for
rehearing en banc and no judge of the court has requested a
vote on whether to rehear the matter en banc. Fed. R. App. P.
35.
The petition for rehearing and the petition for rehearing
en banc, filed October 3, 2013, are DENIED.
4 DEMERS V. AUSTIN
OPINION
W. FLETCHER, Circuit Judge:
David Demers is a tenured associate professor at
Washington State University. He brought suit alleging that
university administrators retaliated against him in violation of
the First Amendment for distributing a short pamphlet and
drafts from an in-progress book. The district court granted
summary judgment for the defendants, finding that the
pamphlet and draft were distributed pursuant to Demers’s
employment duties under Garcetti v. Ceballos, 547 U.S. 410
(2006). Alternatively, the court held that the pamphlet was
not protected under the First Amendment because its content
did not address a matter of public concern.
We hold that Garcetti does not apply to “speech related
to scholarship or teaching.” Id. at 425. Rather, such speech
is governed by Pickering v. Board of Education, 391 U.S. 563
(1968). In Demers’s case, we conclude that the short
pamphlet was related to scholarship or teaching, and that it
addressed a matter of public concern under Pickering. We
remand for further proceedings. We conclude, further, that
there is insufficient evidence in the record to show that the in-
progress book triggered retaliation against Demers. Finally,
we conclude that defendants are entitled to qualified
immunity, given the uncertain state of the law in the wake of
Garcetti.
I. Background
David Demers is a member of the faculty in the Edward
R. Murrow College of Communication (“Murrow School” or
“Murrow College”) at Washington State University
DEMERS V. AUSTIN 5
(“WSU”). He joined the faculty in 1996. He was granted
tenure as an associate professor in 1999. Demers also owns
and operates Marquette Books, an independent publishing
company.
Demers brought suit alleging First Amendment violations
by WSU Interim Director of the Murrow School Erica Austin,
Vice Provost for Faculty Affairs Frances McSweeney, Dean
of the College of Liberal Arts Erich Lear, and Interim WSU
Provost and Executive Vice President Warwick Bayly.
Demers contends that defendants retaliated against him, in
violation of his First Amendment rights, for distributing a
pamphlet called “The 7-Step Plan” (“the Plan”) and for
distributing a draft introduction and draft chapters of an in-
progress book titled “The Ivory Tower of Babel” (“Ivory
Tower”). Demers contends that defendants retaliated by
giving him negative annual performance reviews that
contained falsehoods, by conducting two internal audits, and
by entering a formal notice of discipline. Demers contends
in his brief that over a three-year period he “went from being
a popular teacher and scholar with high evaluations to a target
for termination” due to the actions of defendants.
The Plan is a two-page pamphlet Demers wrote in late
2006 and distributed in early 2007. Demers distributed the
Plan while he was serving on the Murrow School’s “Structure
Committee,” which was actively debating some of the issues
addressed by the Plan. At that time, the Murrow School was
part of the College of Liberal Arts at WSU, but the faculty
had voted unanimously in favor of becoming a free-standing
College. (It became a College in July 2008.) The Murrow
School had two faculties. One faculty was Mass
Communications, which had a professional and practical
orientation. The other was Communications Studies, which
6 DEMERS V. AUSTIN
had a more traditional academic orientation. Faculty
members held appointments in either Mass Communications
or Communications Studies. The Structure Committee was
considering whether to recommend, as part of the
restructuring of the Murrow School, that the two faculties of
the School be separated. There was serious disagreement at
the Murrow School on that question.
Demers is a member of the Mass Communications
faculty. Demers’s Plan proposed separating the two faculties.
It proposed strengthening the Mass Communications faculty
by appointing a director with a strong professional
background and giving more prominent roles to faculty
members with professional backgrounds. For four years,
early in his career, Demers had himself been a professional
reporter.
On January 16, 2007, Demers sent the Plan to the Provost
of WSU. In his cover letter, he stated that the purpose of the
Plan is to show how WSU “can turn the Edward R. Murrow
School of Communication into a revenue-generating center
for the university and, at the same time, improve the quality
of the program itself.” Demers’s letter also stated, “To initiate
a fund-raising campaign to achieve this goal, my company
and I would like to donate $50,000 in unrestricted funds to
the university.” Demers signed the letter “Dr. David Demers,
Publisher/ Marquette Books LLC.” A footnote appended to
the signature line specified, “Demers also is associate
professor of communications at Washington State University.
Marquette Books LLC is a book/journal publishing company
that he operates in his spare time. It has no ties with nor does
it use any of the resources at Washington State University.”
The cover of the Plan states that it was “prepared by
Marquette Books LLC.” The Provost did not respond to
DEMERS V. AUSTIN 7
Demers’s letter and Plan. On March 29, 2007, Demers sent
the Plan to the President of WSU. The cover letter was
identical to the letter he had sent to the Provost, except that he
increased the offered donation to $100,000.
In his declaration, Demers states that he sent the Plan “to
members of the print and broadcast media in Washington
state, to administrators at WSU, to some of my colleagues, to
the Murrow Professional Advisory Board, and others.”
Demers also posted the Plan on the Marquette Books website.
In his deposition, Demers stated that he could not remember
the names of the individuals to whom he had sent the Plan.
Demers did not submit the Plan to the Structure Committee
or to Interim Director Austin. In her deposition, Austin stated
that alumni and members of the professional community
contacted faculty members to ask about the Plan.
During the period relevant to his suit, Demers had
completed drafts of parts of what would eventually become
“Ivory Tower.” The book was not published until after the
actions about which Demers complains took place. In his
self-prepared 2006 “Faculty Annual Report,” submitted in
early 2007, Demers described the in-progress book as “partly
autobiographical and partly empirical. It will involve
national probability surveys of social scientists, governmental
officials and journalists.” Demers attached a copy of the draft
introduction and the first chapter to his November 2007
application for a sabbatical. In his application, he described
the planned book as follows:
[T]he book examines the role and function of
social science research in society. . . . Today
most social scientists believe very strongly
that the research they conduct is important for
8 DEMERS V. AUSTIN
solving social problems, or at least has some
impact on public policy. However, empirical
research in political science and public policy
shows just the opposite. Social scientific
research generally has little impact on public
policy decisions and almost never has a direct
impact on solving social problems. Instead,
social movements play a much more
important role . . . .
Demers also wrote in the application, “The book contains
information that is critical of the academy, including some
events at Washington State University.” In his self-prepared
2008 Annual Activity Report, Demers reported that he had
completed 250 of a planned 380 pages of the book.
Demers did not put any of the drafts of the book in the
record. Interim Director Austin recalled in her deposition
that she had seen parts of the book in connection with
Demers’s application for sabbatical. Vice Provost
McSweeney stated in her deposition that she read some draft
chapters that had been posted online, in particular chapters
written about her and about “anything that [she] was directly
involved in.”
Demers contends that defendants retaliated against him
for circulating the Plan and drafts of Ivory Tower. He claims
that Austin and others knowingly used incorrect information
to lower his performance review scores for 2006, 2007, and
2008. He contends that some defendants falsely stated that he
had improperly canceled classes and that he had not gone
through the proper university approval process before starting
Marquette Books. He contends that specific acts of
retaliation included spying on his classes, preventing him
DEMERS V. AUSTIN 9
from serving on certain committees, preventing him from
teaching basic Communications courses, instigating two
internal audits, sending him an official disciplinary warning,
and excluding him from heading the journalism sequence at
the Murrow School. Demers claims that these acts affected
his compensation and his reputation as an academic. Demers
argues on appeal that the Plan is protected, despite Garcetti,
because it was not written and distributed as part of his
employment. He contends further that the Plan and Ivory
Tower are protected because Garcetti does not apply to
academic speech.
Defendants respond that changes in Demers’s evaluations
and the investigations by the university were warranted, and
were not retaliation for the Plan or Ivory Tower. Defendants
contend that Demers reoriented his priorities away from
academia after receiving tenure, that Demers’s attendance at
faculty committee meetings was sporadic, and that Demers
gave online quizzes instead of appearing in person to teach
his Friday classes despite repeated requests to comply with
university policies that required him to appear in person.
Defendants contend that the legitimate reasons for Demers’s
critical annual reviews include his post-tenure failure to
publish scholarship in refereed journals, his failure to perform
his appropriate share of university service, and his failure to
report properly his activities at Marquette Books. Defendants
contend, further, that Demers’s lower marks under Interim
Director Austin were partly attributable to an overall
adjustment of the annual review scale for the faculty as a
whole.
Defendants contend that the Plan was written and
circulated pursuant to Demers’s official duties and so is not
protected under Garcetti, and that, in any event, the Plan does
10 DEMERS V. AUSTIN
not address a matter of public concern. They contend that
because Demers failed to place any of the drafts of Ivory
Tower in the record, there is insufficient evidence upon which
to sustain Demers’s retaliation claim based on those drafts.
Finally, defendants contend that they are entitled to qualified
immunity from any damages based on the uncertain status of
teaching and academic writing after Garcetti.
The district court granted summary judgment to
defendants. It held that the Plan and Ivory Tower were
written and distributed in the performance of Demers’s
official duties as a faculty member of WSU, and were
therefore not protected under the First Amendment. The
district court held, alternatively, with respect to the Plan, that
it did not address a matter of public concern. Demers timely
appealed.
II. Standard of Review
We review a district court’s grant of summary judgment
de novo. Suzuki Motor Corp. v. Consumers Union of U.S.,
Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). Summary
judgment is appropriate when “there is no genuine dispute as
to any material fact and the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Because this
appeal is taken from an order of summary judgment in favor
of defendants, “‘[t]he evidence of [Demers] is to be believed,
and all justifiable inferences are to be drawn in his favor.’”
Garcetti v. Ceballos, 547 U.S. 410, 442 n.13 (2006) (first
alteration in original) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).
DEMERS V. AUSTIN 11
III. Discussion
Demers makes two arguments. First, he argues that
writing and distributing the Plan were not done pursuant to
his official duties, and thus do not come within the Court’s
holding in Garcetti. Second, he argues that even if he wrote
and distributed the Plan (as well as Ivory Tower) pursuant to
his official duties, Garcetti’s holding does not extend to
speech and academic writing by a publicly employed teacher.
We disagree with his first argument but agree with his
second.
A. Speech Pursuant to Official Duties
The district court found that Demers wrote and distributed
the Plan and Ivory Tower pursuant to his duties as a professor
at WSU. We agree with the district court. “[A]fter Garcetti,
. . . the question of the scope and content of a plaintiff’s job
responsibilities is a question of fact.” Dahlia v. Rodriguez,
735 F.3d 1060, 1072 (9th Cir. 2013) (en banc) (citation and
internal quotation marks omitted).
While he was preparing the Plan, Demers sent an email to
his fellow faculty members at the Murrow School, soliciting
ideas and comments. He wrote:
As you know, I’m preparing a proposal for
splitting the School back into two separate
units, a Communications Studies department
and a professional/mass communication
school.
12 DEMERS V. AUSTIN
In his self-prepared 2007 Annual Activity Report, Demers
listed under the heading “Murrow School of Communication
Service Activities”:
Developed a 7-Step Plan for reorganizing the
Murrow School to improve the quality of the
professional programs and attract more
development funds. The plan recommends
that the communications studies program be
separated from the four professional programs
(print journalism, broadcasting, public
relations, and advertising), the School hire
more professionals and give them more
authority, seek accreditation for the
professional programs, and develop stronger
partnerships with the business community.
Demers prepared and sent the Plan to the Provost and
President while he was serving as a member of the Murrow
School “Structure Committee,” which was deciding, among
other things, whether to recommend separating the Mass
Communications and Communications Studies faculties.
Demers points out that the cover of the Plan indicates that
it was prepared by Marquette Books, that he did not sign his
cover letters to the Provost and the President as a professor,
and that he included a footnote in the letter stating that he was
not acting as a professor. He contends that this, along with
his private donation offer, shows that he was not acting
pursuant to his duties as a professor when he wrote and
distributed the Plan. However, it is impossible, as a real-
world practical matter, to separate Demers’s position as a
member of the Mass Communications faculty, and as a
member of the Structure Committee, from his preparation and
DEMERS V. AUSTIN 13
distribution of his Plan. Further, we note that when it was to
his advantage to do so, Demers characterized his
development of the Plan as part of his official duties in his
2007 Annual Activities Report. Demers may not have been
acting as a team player in sending his Plan directly to the top
administrators at WSU, rather than working with and through
his fellow committee members. But we conclude that in
preparing the Plan, in sending the Plan to the Provost and
President, in posting the Plan on the Internet, and in
distributing the Plan to news media, to selected faculty
members and to alumni, Demers was acting sufficiently in his
capacity as a professor at WSU that he was acting “pursuant
to [his] official duties” within the meaning of Garcetti.
547 U.S. at 421. We thus turn to the question whether
Garcetti applies to academic speech.
B. Academic Speech Under the First Amendment
Until the Supreme Court’s 2006 decision in Garcetti,
public employees’ First Amendment claims were governed
by the public concern analysis and balancing test set out in
Pickering v. Board of Education, 391 U.S. 563 (1968), and
Connick v. Myers, 461 U.S. 138 (1983). Garcetti, however,
changed the law. The plaintiff in Garcetti was a deputy
district attorney who had written a memorandum concluding
that a police affidavit supporting a search warrant application
contained serious misrepresentations. Garcetti, 547 U.S. at
413–14. The plaintiff contended that his employer retaliated
against him in violation of the First Amendment for having
written and then defended the memorandum. Id. at 415. The
Court held in Garcetti that “when public employees make
statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and
14 DEMERS V. AUSTIN
the Constitution does not insulate their communications from
employer discipline.” Id. at 421.
However, Garcetti left open the possibility of an
exception. In response to a concern expressed by Justice
Souter in dissent, the Court reserved the question whether its
holding applied to “speech related to scholarship or
teaching.” Id. at 425. Justice Souter had expressed concern
about the potential breadth of the Court’s rationale, writing,
“I have to hope that today’s majority does not mean to
imperil First Amendment protection of academic freedom in
public colleges and universities, whose teachers necessarily
speak and write ‘pursuant to . . . official duties.’” Id. at 438
(Souter, J., dissenting) (alteration in original).
Demers presents the kind of case that worried Justice
Souter. Under Garcetti, statements made by public
employees “pursuant to their official duties” are not protected
by the First Amendment. 547 U.S. at 421. But 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.” Keyishian v. Bd.
of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603
(1967). 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. One of our sister circuits agrees. See Adams
v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 562
(4th Cir. 2011) (“We are . . . persuaded that Garcetti would
not apply in the academic context of a public university as
represented by the facts of this case.”).
DEMERS V. AUSTIN 15
The Supreme Court has repeatedly stressed the
importance of protecting academic freedom under the First
Amendment. It wrote in Keyishian:
Our Nation is deeply committed to
safeguarding academic freedom, which is of
transcendent value to all of us and not merely
to the teachers concerned. That freedom is
therefore a special concern of the First
Amendment, which does not tolerate laws that
cast a pall of orthodoxy over the classroom.
“The vigilant protection of constitutional
freedoms is nowhere more vital than in the
community of American schools.”
Id. at 603 (quoting Shelton v. Tucker, 364 U.S. 479, 487
(1960)). It had previously written to the same effect in
Sweezy v. New Hampshire:
The essentiality of freedom in the community
of American universities is almost self-
evident. . . . To impose any strait jacket upon
the intellectual leaders in our colleges and
universities would imperil the future of our
Nation. . . . Scholarship cannot flourish in an
atmosphere of suspicion and distrust.
Teachers and students must always remain
free to inquire, to study and to evaluate, to
gain new maturity and understanding;
otherwise our civilization will stagnate and
die.
354 U.S. 234, 250 (1957). More recently, the Court wrote in
Grutter v. Bollinger, “We have long recognized that, given
16 DEMERS V. AUSTIN
the important purpose of public education and the expansive
freedoms of speech and thought associated with the university
environment, universities occupy a special niche in our
constitutional tradition.” 539 U.S. 306, 329 (2003); see also
Rust v. Sullivan, 500 U.S. 173, 200 (1991) (“[T]he university
is . . . so fundamental to the functioning of our society that the
Government’s ability to control speech within that sphere by
means of conditions attached to the expenditure of
Government funds is restricted by the vagueness and
overbreadth doctrines of the First Amendment.”).
We conclude 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. We hold that academic
employee speech not covered by Garcetti is protected under
the First Amendment, using the analysis established in
Pickering. The Pickering test has two parts. First, the
employee must show that his or her speech addressed
“matters of public concern.” Pickering, 391 U.S. at 568; see
Connick, 461 U.S. at 146. Second, the employee’s interest
“in commenting upon matters of public concern” must
outweigh “the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568; see
Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1048 (6th
Cir. 2001); Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.
2000).
In Pickering, a public high school teacher wrote a letter
to a local newspaper complaining about budgetary decisions
made by the school district. Pickering, 391 U.S. at 564. The
Court wrote that teachers have a First Amendment right “to
comment on matters of public interest in connection with the
DEMERS V. AUSTIN 17
operation of the public schools in which they work,” but that,
at the same time, the rights of public school teachers are not
independent of the interest of their employing school district.
Id. at 568. The task of a court is “to arrive at a balance
between the interests of the teacher, as a citizen, . . . and the
interest of the State, as an employer.” Id. The Court held in
Pickering that “the question whether a school system requires
additional funds is a matter of legitimate public concern,” id.
at 571, and that the school district did not have a sufficient
interest in preventing the teacher from speaking out on this
question to deprive him of his First Amendment rights. Id. at
572–74.
In Connick v. Myers, the Court returned to the question
whether an employee’s speech addressed a matter of public
concern. The employee in Connick was an assistant district
attorney who objected to being transferred to prosecute cases
in a different section of the criminal court. 461 U.S. at 140.
She circulated a questionnaire within the district attorney’s
office raising questions about “office transfer policy, office
morale, the need for a grievance committee, the level of
confidence in supervisors, and whether employees felt
pressured to work in political campaigns.” Id. at 141. The
Court held that all but one of the topics in the questionnaire
were not matters of public concern. With the exception of the
question about pressure to work on political campaigns, the
“questions reflect[ed] one employee’s dissatisfaction with a
transfer and an attempt to turn that displeasure into a cause
célèbre.” Id. at 148. The Court held that the question about
political campaigns, however, addressed “a matter of interest
to the community upon which it is essential that public
employees be able to speak out freely without fear of
retaliatory dismissal.” Id. at 149.
18 DEMERS V. AUSTIN
The Court in Connick refined the Pickering analysis in
two ways. First, perhaps recognizing the artificiality of
characterizing an employee’s speech about matters relating to
his employment as merely speech “as a citizen,” the Court did
not insist on characterizing the Connick plaintiff’s protected
question about political campaigns as speech “as a citizen.”
While her question may in some sense have been speech as
a citizen, it was much more directly and obviously speech as
an employee. Not only did the employee circulate her
questionnaire exclusively within her workplace. In addition,
the clear implication from the record is that she was herself
subject to pressure to work on campaigns, and that her fellow
employees, to whom she sent the questionnaire, were subject
to that same pressure. Second, the Court emphasized the
subtlety of the balancing process, writing that “the State’s
burden in justifying a particular [discipline] varies depending
upon the nature of the employee’s expression. Although such
particularized balancing is difficult, the courts must reach the
most appropriate possible balance of the competing
interests.” Id. at 150.
The Pickering balancing process in cases involving
academic speech is likely to be particularly subtle and
“difficult.” Id. The nature and strength of the public interest
in academic speech will often be difficult to assess. For
example, a long-running debate in university English
departments concerns the literary “canon” that should have
pride of place in the department’s curriculum. This debate
may seem trivial to some. But those who conclude that the
composition of the canon is a relatively trivial matter do not
take into account the importance to our culture not only of the
study of literature, but also of the choice of the literature to be
studied. Analogous examples could readily be drawn from
philosophy, history, biology, physics, or other disciplines.
DEMERS V. AUSTIN 19
Recognizing our limitations as judges, we should hesitate
before concluding that academic disagreements about what
may appear to be esoteric topics are mere squabbles over
jobs, turf, or ego.
The nature and strength of the interest of an employing
academic institution will also be difficult to assess. Possible
variations are almost infinite. For example, the nature of
classroom discipline, and the part played by the teacher or
professor in maintaining discipline, will be different
depending on whether the school in question is a public high
school or a university, or on whether the school in question
does or does not have a history of discipline problems.
Further, the degree of freedom an instructor should have in
choosing what and how to teach will vary depending on
whether the instructor is a high school teacher or a university
professor. Still further, the evaluation of a professor’s writing
for purposes of tenure or promotion involves a judgment by
the employing university about the quality of what he or she
has written. Ordinarily, such a content-based judgment is
anathema to the First Amendment. But in the academic
world, such a judgment is both necessary and appropriate.
Here too, recognizing our limitations, we should hesitate
before concluding that we know better than the institution
itself the nature and strength of its legitimate interests.
With the foregoing in mind, we turn to what Demers
wrote.
C. Ivory Tower
We put to one side Demers’s Ivory Tower. For reasons
best known to himself, Demers did not put the draft
introduction or any of the draft chapters of Ivory Tower into
20 DEMERS V. AUSTIN
the record. The only information we have about those drafts
are the brief descriptions Demers provided when he applied
for sabbatical and when he described his academic activities
for purposes of his annual reviews, and the acknowledgments
by Austin and McSweeney that they saw or read parts of
those drafts. There is only one sentence in Demers’s
descriptions of his drafts that could conceivably have
prompted any adverse reaction from defendants. In his
application for sabbatical, Demers wrote, “The book contains
information that is critical of the academy, including some
events at Washington State University.” However, Demers
described no specific “events” at WSU. This is pretty thin
gruel. Even assuming for the moment that defendants
retaliated against Demers, he has provided insufficient
information about the drafts of Ivory Tower to support a claim
that any such retaliation resulted from those drafts. We
therefore conclude that Demers has failed to establish a First
Amendment violation with respect to Ivory Tower.
D. The Plan
1. “Speech Related to Scholarship or Teaching” Under
Garcetti
We conclude that The 7-Step Plan prepared by Demers in
connection with his official duties as a faculty member of the
Murrow School was “related to scholarship or teaching”
within the meaning of Garcetti. See 547 U.S. at 425. The
basic thrust of the Plan may be understood from its first
paragraphs:
The relationship between mass
communication programs (e.g., journalism,
broadcasting, public relations, advertising)
DEMERS V. AUSTIN 21
and the academy in general has always been a
rocky one. The first print journalism
programs emerged in the early 1900s, mostly
at Midwestern universities and colleges, and
were staffed largely with teachers who had
professional backgrounds (former journalists
and editors). As the years passed, increasing
pressure was placed on journalism and other
related programs (broadcasting, public
relations, advertising) to “scholarize” their
faculty — that is, to hire faculty who had
earned Ph.D. degrees in the social sciences
and conduct research. At the same time, the
programs began hiring fewer teachers with
professional experience.
As the number of Ph.D.s increased, so did
the tension within these departments. Some
historians have referred to this as the era of
the “green eyeshades” versus the “chi-
squares.” Not unexpectedly, at larger
research-oriented universities, the Ph.D.s won
the battle and today most of the faculty
teaching in mass communication programs at
research-oriented universities have the Ph.D.
Needless to say, this turn of events
alienated many professionals and media-
related businesses. Students were required to
take more theory and conceptual courses and
fewer skills-based courses, such as writing
and reporting. Professionals complained more
and more that the writing skills of university
graduates were declining. The close
22 DEMERS V. AUSTIN
relationship universities once had with the
professional community was disappearing.
The Plan proposed seven steps that would increase the
influence of professionals and reduce the influence of Ph.Ds
within the Murrow School. Those steps were:
1. Separate the mass communication program
from the communication studies program at
WSU — i.e., create two separate units. . . .
2. Hire a director of the Edward R. Murrow
School of Communication who has a strong
professional background. . . .
3. Create an Edward R. Murrow Center for
Media Research that conducts joint research
projects with the professional community. . . .
4. Give professionals an active (rather than
the current passive) role in the development of
the curriculum in the School. . . .
5. Give professional faculty a more active
role in the development of the undergraduate
curriculum for mass communication
students. . . .
6. Seek national accreditation for the “new”
mass communication program. . . .
7. Hire more professional faculty with
substantial work experience. . . .
DEMERS V. AUSTIN 23
In Demers’s view, the teaching of mass communications
had lost a critical connection to the real world of professional
communicators. His Plan, if implemented, would restore that
connection and would, in his view, greatly improve the
education of mass communications students at the Murrow
School. It may in some cases be difficult to distinguish
between what qualifies as speech “related to scholarship or
teaching” within the meaning of Garcetti. But this is not such
a case. The 7-Step Plan was not a proposal 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. Instead, it was a proposal to
implement a change at the Murrow School that, if
implemented, would have substantially altered the nature of
what was taught at the school, as well as the composition of
the faculty that would teach it.
2. Matter of Public Concern Under Pickering
The first step in determining whether the Plan is protected
under the First Amendment is to determine whether it
addressed a matter of public concern. Whether speech is a
matter of public concern under Pickering is a matter of law
that we review de novo. Berry v. Dep’t of Soc. Servs.,
447 F.3d 642, 648 (9th Cir. 2006). The plaintiff bears the
burden of showing that his or her speech addresses an issue
of public concern. Eng v. Cooley, 552 F.3d 1062, 1071 (9th
Cir. 2009).
“Speech involves a matter of public concern when it can
fairly be considered to relate to ‘any matter of political,
social, or other concern to the community.’” Johnson v.
Multnomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995) (quoting
24 DEMERS V. AUSTIN
Connick, 461 U.S. at 146). The “essential question is whether
the speech addressed matters of public as opposed to personal
interest.” Desrochers v. City of San Bernardino, 572 F.3d
703, 709 (9th Cir. 2009) (internal quotation marks and
citation omitted). Public interest is “defined broadly.” Ulrich
v. City & Cnty. of S.F., 308 F.3d 968, 978 (9th Cir. 2002).
We have adopted a “liberal construction of what an issue of
public concern is under the First Amendment.” Roe v. City
& Cnty. of S.F., 109 F.3d 578, 586 (9th Cir. 1997) (internal
quotation marks omitted). We consider “the content, form,
and context of a given statement, as revealed by the whole
record.” Connick, 461 U.S. at 147–48. Of these, content is
the most important factor. Desrochers, 572 F.3d at 710.
We begin by noting two obvious points. First, not all
speech by a teacher or professor addresses a matter of public
concern. Teachers and professors, like other public
employees, speak and write on purely private matters. If a
publicly employed professor speaks or writes about what is
“properly viewed as essentially a private grievance,” Roe,
109 F.3d at 585, the First Amendment does not protect him
or her from any adverse reaction. Second, protected
academic writing is not confined to scholarship. Much
academic writing is, of course, scholarship. But academics,
in the course of their academic duties, also write memoranda,
reports, and other documents addressed to such things as a
budget, curriculum, departmental structure, and faculty
hiring. Depending on its scope and character, such writing
may well address matters of public concern under Pickering.
Indeed, in Pickering itself the teacher’s protected letter to the
newspaper addressed operational and budgetary concerns of
the school district. The Court in Pickering noted that the
letter addressed “the preferable manner of operating the
school system,” which “clearly concerns an issue of general
DEMERS V. AUSTIN 25
public interest.” 391 U.S. at 571. Further, the Court wrote
that “the question whether a school system requires additional
funds is a matter of legitimate public concern.” Id.
Demers described his Plan on its cover as a “7-Step Plan
for Making the Edward R. Murrow School of Communication
Financially Independent.” The first page of the Plan gave an
abbreviated history of “mass communications programs . . .
and the academy in general,” and placed the communications
program at WSU in the broader context of similar programs
at other universities. The second page recommended seven
steps for improving the communications program at WSU.
Demers’s Plan did not focus on a personnel issue or internal
dispute of no interest to anyone outside a narrow
“bureaucratic niche.” Tucker v. Cal. Dep’t of Educ., 97 F.3d
1204, 1210 (9th Cir. 1996) (citation omitted); see Desrochers,
572 F.3d at 713. Nor did the Plan address the role of
particular individuals in the Murrow School, or voice
personal complaints. Rather, the Plan made broad proposals
to change the direction and focus of the School. See Schrier
v. Univ. of Colo., 427 F.3d 1253, 1263 (10th Cir. 2005)
(holding that a professor’s critiques of a plan to move the
medical school “addressing the use of public funds and
regarding the objectives, purposes and mission of the
University of Colorado and its medical school fall well within
the rubric of ‘matters of public concern’”). The importance
of the proposed steps in Demers’s Plan is suggested by the
fact that the Murrow School had appointed a “Structure
Committee,” of which Demers was a member, to address
some of the very issues addressed in Demers’s Plan.
The manner in which the Plan was distributed reinforces
the conclusion that it addressed matters of public concern. If
an employee expresses a grievance to a limited audience,
26 DEMERS V. AUSTIN
such circulation can suggest a lack of public concern. See
Desrochers, 572 F.3d at 713–14. But limited circulation is
not, in itself, determinative, as may be seen in Connick where
the questionnaire was distributed only within the employee’s
office. See 461 U.S. at 141. Here, Demers sent the Plan to
the President and Provost of WSU, to members of the
Murrow School’s Professional Advisory Board, to other
faculty members, to alumni, to friends, and to newspapers.
He posted the Plan on his website, making it available to the
public.
There may be some instances in which speech about
academic organization and governance does not address
matters of public concern. See, e.g., Brooks v. Univ. of Wis.
Bd. of Regents, 406 F.3d 476, 480 (7th Cir. 2005) (objections
by professors against the closing of their laboratories and
study programs represented “a classic personnel struggle —
infighting for control of a department — which is not a matter
of public concern”); Clinger v. N.M. Highlands Univ., Bd. of
Regents, 215 F.3d 1162, 1166 (10th Cir. 2000) (no matter of
public concern where professor publicly disagreed with the
Board of Trustees “on the internal process they followed in
selecting a president and reorganizing the University”). But
this is not such a case. Demers’s Plan contained serious
suggestions about the future course of an important
department of WSU, at a time when the Murrow School itself
was debating some of those very suggestions. We therefore
conclude that the Plan addressed a matter of public concern
within the meaning of Pickering.
E. Remaining Issues on the Merits
Based on its holding that Demers’s Plan did not address
a matter of public concern, the district court granted summary
DEMERS V. AUSTIN 27
judgment to defendants. As to the three questions it would
have had to reach had it held otherwise, the district court
wrote that there were questions of material fact. Those
questions were whether defendants had a sufficient interest in
controlling or sanctioning Demers’s circulation of the Plan to
deprive it of First Amendment protection; whether, if the Plan
was protected speech under the First Amendment, its
circulation was a substantial or motivating factor in any
adverse employment action defendants might have taken; and
whether defendants would have taken such employment
action absent the protected speech. See Anthoine v. N. Cent.
Cntys. Consortium, 605 F.3d 740, 748 (9th Cir. 2010). The
district court may address those questions, as appropriate, on
remand.
F. Qualified Immunity and Prospective Relief
Defendants are entitled to qualified immunity, even if
they violated Demers’s First Amendment rights, if they
reasonably could have believed that their conduct was lawful
“in light of clearly established law and the information [that
they] possessed.” Cohen v. San Bernardino Valley Coll.,
92 F.3d 968, 973 (9th Cir. 1996) (alteration in original)
(quoting Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.
1989)). A right is clearly established when the contours of
the right are “‘sufficiently clear’ that every ‘reasonable
official would have understood that what he is doing violates
that right.’” Karl v. City of Mountlake Terrace, 678 F.3d
1062, 1073 (9th Cir. 2012) (quoting Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011)).
Until the decision in this case, our circuit has not
addressed the application of Garcetti to teaching and
academic writing. In Adams, after the Fourth Circuit held
28 DEMERS V. AUSTIN
that Garcetti did not apply, it considered whether defendants
had qualified immunity in light of “the uncertain state of the
law in the area of what protection should be afforded to
public university teacher’s speech following Garcetti.”
Adams, 640 F.3d at 565. The court held that the professor’s
First Amendment rights were clearly established in the Fourth
Circuit, and it denied qualified immunity. Id. at 565–66; see
also Karl, 678 F.3d at 1074 (denying qualified immunity in
a Garcetti case in light of clear in-circuit precedent).
However, because there is no Ninth Circuit law on point to
inform defendants about whether or how Garcetti might
apply to a professor’s academic speech, we cannot say that
the contours of the right in this circuit were “sufficiently clear
that every reasonable official would have understood” that
this conduct violated that right. Id. at 1073 (internal
quotation marks omitted). We therefore hold that defendants
are entitled to qualified immunity.
Qualified immunity of course does not preclude
injunctive relief. Should the district court determine that
Demers’s First Amendment rights were violated, it may still
grant injunctive relief to the degree it is appropriate.
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,
527 (9th Cir. 1989) (“Qualified immunity is an affirmative
defense to damage liability; it does not bar actions for
declaratory or injunctive relief.” (citing Harlow v. Fitzgerald,
457 U.S. 800, 815 (1982))).
Conclusion
We hold that there is an exception to Garcetti for teaching
and academic writing. We affirm the district court’s
determination that Demers prepared and circulated his Plan
pursuant to official duties, but we reverse its determination
DEMERS V. AUSTIN 29
that the Plan does not address matters of public concern. We
hold that defendants are entitled to qualified immunity. We
remand for further proceedings consistent with this opinion.
The parties shall bear their own costs.
AFFIRMED in part, REVERSED in part, and
REMANDED.