Ninth Circuit latest to exempt publicly employed teachers from Garcetti speech restrictions



It’s illegal for public agencies to discipline teachers for statements they make, if those statements are a "matter of public concern," a federal appeals court ruled last week.

Most public employees can be disciplined for making statements their bosses don’t like, even if it might seem like they are protected by the First Amendment. If the statements were made as part of the employee’s “official duties,” the speech is considered to be the government agency's speech, not the legally protected speech of the individual speaker.

But Garcetti v. Ceballos (2006), the Supreme Court case that established that standard, left one question open-ended. If teaching and writing, which are high priorities for First Amendment protection, are “the core of the official duties of teachers and professors,” should teachers be protected where others aren’t?

“We conclude that Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing,” the U.S. Court of Appeals for the Ninth Circuit decided last week in Demers v. Austin.

Then-professor David Demers sued Washington State University administrators for First Amendment violations in 2010. He alleged unfair retaliation for distributing two publications that criticized the administration and called for revamping the school's Communications program. (Demers has since taken a job teaching at Arizona State University.)

The Chronicle of Higher Education noted that the Ninth Circuit is the second, after the Fourth Circuit, to decide that publicly employed teachers are exempt from Garcetti. Three other federal appeal courts, the Third, Sixth and Seventh, ruled the opposite.

WSU officials, who were defendants in the Demers case, will not face penalties, however. Judges granted them qualified immunity due to “the uncertain state of the law” establishing whether teachers are subject to Garcetti.

Tagged: academic freedom, Adviser FA rights, Demers v. Austin, First Amendment, Garcetti v. Ceballos