Collegiality In College
A divided panel of the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a tenured North Carolina State professor’s complaint which had contended that the action was a result of his protected speech
Appellant’s Complaint alleges that he has been outspoken in recent years concerning the focus on “so-called ‘social justice’ affecting academia in general” and “his concern that the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” J.A. 11. In this vein, Appellant identifies three statements or communications he made between 2016 and 2018 which, in his view, are protected speech. According to Appellant, he was eventually subject to adverse employment actions in retaliation for these three communications.
The majority agreed that the complaint failed to state a claim
Appellant’s complaint makes clear that he was removed from the HEPA [Higher Education Program Area] because of his ongoing lack of collegiality — not because of the content of his blog post. For example, Appellant was labeled as a bully because of the survey question incident. And the complaint admits that Appellee Pasque “implied there were other claims about [Appellant] in the [2017 report]” beyond the survey question incident. J.A. 13. The complaint also alleges that in the meeting where Appellant was asked to join a new Program Area, he became “frustrated” and said “Give me a f***ing break, folks. . . .” Id. at 19. The complaint alleges that after this meeting, Appellant received letters from Appellee Pasque “chastising him for his use of profanity and his expressions of frustration” and again “expressing concern about his ‘collegiality.’” Id. at 20. Continuing on, the complaint admits that Appellant was warned that if he “‘fail[ed] to repair the relationships among faculty in the Higher Education program’ or display[ed] a ‘lack of collegiality’ again,” he would be removed from the HEPA. Id.
Even as to the “Woke Joke” blog post, the complaint makes clear that Appellee Pasque’s concerns were not with the content of the post, but rather with Appellant’s failure to “proactively address[] student and faculty concerns about ‘what happened at ASHE.’” J.A. at 22. And finally, the complaint alleges that Appellant was removed from the HEPA “because ‘the Higher Education faculty were not able to make concerted progress’ on resolving issues within the Program Area.” Id. at 23.
Taking all of this together, we cannot conclude that Appellant has sufficiently alleged that the “Woke Joke” blog post was a “but for” cause of his removal from the HEPA.
The “Woke Joke” blog post
The final communication occurred on September 3, 2018, when Appellant published a post on his personal blog entitled “ASHE [Association for the Study of Higher Education] Has Become a Woke Joke.”2 J.A. 17. Appellant’s “Woke Joke” post mentioned research his colleague had gathered about the topics for discussion at an upcoming ASHE conference. According to Appellant, this research demonstrated that the focus of the conference had shifted from general, postsecondary research to social justice. Appellant’s post concluded with his commentary, “Iprefer conferences where 1) the attendees and presenters are smarter than me and 2) I constantly learn new things. That’s why I stopped attending ASHE several years ago . . .” Id. at 38. Appellant’s blog post generated controversy on social media.
Dissent of Circuit Judge Richardson
Over a century ago, a Massachusetts policeman filed suit, claiming that he was fired for speaking his mind. In dismissing his suit, Justice Holmes famously quipped: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892). Yet—like many Holmesian aphorisms—that is no longer our law. It is now well-settled that “citizens do not surrender their First Amendment rights by accepting public employment.” Lane v. Franks, 573 U.S. 228, 231 (2014). Today, when a state employer retaliates against its employee for speaking as a citizen on a matter of public concern, the First Amendment demands that the state justify its action.
Stephen Porter, a professor at North Carolina State University, says that the University retaliated against him for his protected speech. My friends in the majority say otherwise. They hold that much of Porter’s speech was not protected at all, and that—for his speech that was protected—Porter has not drawn a plausible link to the adverse action that he suffered.
My friends err at both steps. Porter was indeed speaking as a citizen on a matter of public concern. And—based on his complaint’s allegations—it is plausible that the University retaliated against him because of it. The University thus must put forth evidence to justify its action. But, at this early stage of litigation, the government has not made that showing. So we should allow Porter’s suit to proceed.
(Mike Frisch)