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Title: Legal Dispute Pits Washington State U.'s Journalism School Against Free-Speech Groups
Publication: The Chronicle of Higher Education
Author: Peter Schmidt
Country: United States
Published Date:
March 01, 2012

Washington State University's college of journalism has found itself at odds with groups that advocate a First Amendment right to academic freedom after persuading a federal district court to adopt a limited view of the speech rights of faculty members at public colleges.

The case is now pending before the U.S. Court of Appeals for the Ninth Circuit and expected to be heard in the fall. In a friend-of-the-court brief submitted to that court last month, the American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression jointly warn the Ninth Circuit that a ruling upholding the district court's logic would set "a dangerous precedent" jeopardizing academic freedom and the sound governance of public higher-education institutions.

The legal question that attracted the two groups' interest in the case is whether the courts should consider statements by a faculty member at the journalism college to be protected by the First Amendment or exempt from such protections under a 2006 U.S. Supreme Court ruling in the case Garcetti v. Ceballos.

In the Garcetti decision, dealing with a dispute within a district attorney's office, the Supreme Court majority held that the First Amendment does not protect public employees from being disciplined for statements made in connection with their jobs, but explicitly put off until later the question of whether its logic should apply to public employees' speech related to scholarship or teaching.

Despite the Supreme Court majority's caution that the Garcetti decision should not be interpreted as necessarily applying to academic speech, several lower courts have since cited that precedent in decisions holding that public colleges had the right to discipline faculty members for speech deemed to be related to their jobs. Although other courts have declined to apply the Garcetti decision to disputes involving public-college employees, the legal status of such employees' speech protections remains unsettled enough to generate worry that the courts will eventually eviscerate academic freedom at public higher-education institutions.

The Washington State case involves a lawsuit filed against current and former administrators of the university and its Edward R. Murrow College of Communication by David K. Demers, a tenured associate professor. He claims he suffered illegal retaliation—in the form of poor performance reviews, an "unnecessary" internal audit, and other unfavorable administrative actions related to his employment—for First Amendment-protected statements dealing with the journalism college's leadership and structure and, more broadly, with higher education and the social sciences.
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The university, which argues that its actions in connection with Mr. Demers were justified, last June persuaded a federal district court judge to dismiss the case. In that summary judgment, Judge Robert H. Whaley of the U.S. District Court based in Spokane concluded that the speech at issue was not protected by the First Amendment, and that Mr. Demers therefore had no case worthy of a trial, based on his conclusion that the speech at issue did not serve a public interest and qualified as employment-related speech covered by Garcetti.

Mr. Demers's appeal, and the friend-of-the-court brief submitted by the AAUP and the Thomas Jefferson Center on his behalf, argue that Judge Whaley erred in applying Garcetti and finding that no public interest was served by the statements at issue.

The speech in question, the advocacy groups' brief says, deals with "a matter of considerable public concern: the education of future journalists," because how journalists are educated "will in no small part determine how healthy American democracy remains in the Twenty-first Century." If the lower court's ruling is upheld, the groups argue, "other professors who desire to blow the whistle on ineffective or corrupt administrative practices may similarly be silenced."
Mixed Reviews

If the Ninth Circuit overturns Judge Whaley's decision and the lawsuit goes to trial, the outcome will most likely hinge on how the jury sorts out a tangled web of claims and counterclaims related to the dispute between Mr. Demers and university administrators.

Washington State University has not yet filed its response to the professor's appeal. But Darin Watkins, a university spokesman, said in an interview this week that his institution was "comfortable with the facts we presented" in the lower court, which, he says, established that Mr. Demers was "fairly and fully evaluated."

The defendants named in the lawsuit are Erica W. Austin, a professor at the journalism school who served as its interim director and then its dean from 2006 until 2009, and three administrators whom Mr. Demers accuses of participating in or condoning actions taken against him: Erich Lear, who was dean of the university's College of Liberal Arts from 2006 until 2008; Francis K. McSweeney, the university's vice provost for faculty affairs; and Warwick M. Bayly, the university's provost and executive vice president. (The journalism school was part of the university's College of Liberal Arts until July 2008, when it was split off as a separate college.)

Mr. Demers, who began teaching at the journalism school in 1996 and received tenure in 1999, claims in his lawsuit that his job reviews were positive until 2006, when the school's director, Alex Tan, was removed in response to faculty tensions and replaced with Ms. Austin. The university had conducted an internal audit in 2004 to look into whether Mr. Demers had violated state ethics rules by requiring students to buy publications from Marquette Books, a publishing company that he owned, but it fully exonerated him after finding that he had derived no financial benefit from using the company's books in his class, his lawsuit says.

The lawsuit, filed in 2010, alleges that Ms. Austin, upon taking over as head of the program, gave him unjust and untruthful job evaluations and that the institution's assessment of his performance "plummeted" as a result. She described inadequacies in his teaching, scholarship, and service and accused him of failing to hold classes when required, all criticisms that he denies.

In 2007, the lawsuit says, Ms. Austin asked for another, "unnecessary" internal audit to investigate potential problems stemming from Mr. Demers's connection with Marquette Books. It did not find he had had any financial conflict, but it said he had improperly canceled classes and failed to file required disclosure forms. Mr. Demers has challenged those findings and accused the auditor of having had a conflict because she was the sister of a member of Ms. Austin's staff.

The professor's lawsuit says Ms. Austin also retaliated against him by changing his class assignments, removing him from a committee on the journalism school's reorganization, and in 2008 giving him a formal written warning that he was violating university regulations pertaining to the scheduling of final exams, time commitment to courses, and outside professional activities.
A 'Struggle for Power'

The lawsuit accuses Ms. Austin and the administrators to whom she answered of retaliating against him for speech that rubbed them the wrong way.

In particular, it says he ran afoul of them by repeatedly requesting that the journalism school seek formal accreditation; vocally opposing the 2006 removal of Dean Tan and the manner in which he was subsequently replaced; expressing concern about the journalism program's shift away from professional training and toward theoretical research; writing and distributing a plan to improve the journalism school; and writing a book, The Ivory Tower of Babel, which criticizes university bureaucracies and questions the significance of social science as a force for changing public policy.

At the district-court level, Washington State argued that the negative reviews Ms. Austin gave Mr. Demers stemmed from her being directed to improve productivity, and that all of the actions the university has taken against him would have been taken regardless of the statements he claims are protected.

Judge Whaley's ruling in the university's favor held that all of the speech at issue was job-related and that, rather than relating to matters of public concern, Mr. Demers's statements regarding the accreditation and direction of the journalism school "related to internal matters" at Washington State and his statements related to the school's administration dealt with "personnel-related grievances and a workplace struggle for power."

The Ninth Circuit has not yet issued a decision dealing directly with the application of Garcetti to academic speech. It had an opportunity to do so in 2010, in a case involving an emeritus professor at the University of California at Irvine, but it avoided the question in holding that the university leaders named in the lawsuit had immunity from such litigation. The unanimous decision handed down by a three-judge Ninth Circuit panel in that case said that whether professors have a First Amendment right to comment on administrative matters without fear of retaliation is "far from clearly established."


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