My recent legal victory against the University of North Carolina at Wilmington (UNCW) has received a great deal of media attention. That focus is justified, since the victory was indeed historic. In fact, it may be the first case in the history of American jurisprudence in which a conservative professor successfully won a jury verdict against a public university over alleged First Amendment retaliation. The case is also significant because a federal judge, in addition to awarding attorney fees and back pay, ordered a promotion as a result of the verdict. Yet no aspect of the case is as important as the academic freedom issue clarified by the 2011 appellate court, which paved the way for the 2014 federal jury trial and the ultimate victory.
Explaining how the appellate court’s analysis has advanced academic freedom requires some factual and legal context. The Alliance Defending Freedom first filed suit on my behalf back in April 2007. The complaint alleged that UNCW clearly soured on me following my religious and political conversions. Upon arriving at UNCW in 1993, I had been evaluated very favorably in the three major areas of faculty assessment: teaching, research, and service. The road to tenure and promotion in 1998 was smooth, since annual peer evaluations and student teaching evaluations had been uniformly positive. I also had received three teaching awards, two from students and one from the Office of the Vice Chancellor for Academic Affairs.
Following my conversions, however, those peer evaluations saw a marked decline, while my student evaluations remained at the top of the Department of Sociology and Criminology. We also had evidence of specific retaliation for exercising my First Amendment rights as a speaker and columnist in various public venues, most notably in a weekly column for Townhall.com. Accordingly, the suit alleged violations of Title VII, the Equal Protection clause, and the First Amendment to the United States Constitution.
Universities and other defendants routinely file motions to dismiss such claims, providing all sorts of rationales for judges to kill the lawsuits. Fortunately, in the spring of 2008, Judge Malcolm Howard (United States District Court, Eastern District of North Carolina), denied the defendants’ motion to dismiss, thus enabling document discovery and sworn depositions, which would extend into the spring of 2009. While the initial civil complaint was based on circumstantial evidence, electronic discovery and sworn depositions provided direct evidence of First Amendment retaliation. Some of the more blatant examples of retaliation are listed below:
Faculty members specifically objected to constitutionally protected speech in their evaluations. For part of the evaluation process, senior faculty members were encouraged to submit comments about my qualifications to the department chair via e-mail. Fortunately for our case, professors made numerous direct comments about the Townhall.com column and other speeches and opinion columns published in private outlets. References to the column expressed specific objections to its content. More important, some of the faculty members who expressed distaste for my constitutionally protected opinions also failed to make any reference to my academic publications. Worse still, some claimed falsely that there was no record of my scholarship outside of the opinion writings.
In contrast to those comments, document discovery showed that my academic publication record, both before and after tenure, exceeded that of most department members, including several of the defendants. In fact, no one in the department with as many refereed publications as mine had ever been denied promotion to full professor.
Furthermore, the department chair, after collecting senior faculty comments, summarized them for distribution at the meeting about my promotion. Her summary omitted numerous positive comments but included all of the negative comments about my protected speech. She had modified some of the comments by using ellipses, which changed their original meaning, thus making them even more negative than intended. Additionally, she included an extensive anonymous comment misrepresenting my publication record. During depositions, no one took credit for authoring those comments, and as of this writing, their authorship remains unknown. Nonetheless, the comments were disseminated at the promotion meeting.
The modification of the original comments would help us later win a jury verdict for individual liability against the department chair. We were already in possession of documents (pre-discovery) showing direct First Amendment retaliation by the former department chair. Thus, we were ultimately able to win a jury verdict for individual liability against her at trial.
University policies were violated in the decision-making process. The university handbook is very specific about the scope of the work to be considered in promotions from associate to full professor. The stated standard for promotion to the highest rank considers research publications over the entire career of the applicant. Electronic discovery indicated, however, that professors were only considering the publications I had amassed since promotion to associate professor. Discovery also indicated that the department chair had instructed the faculty to use that improper standard. In sworn depositions, the chair admitted that she was using a “what have you done for me lately?” standard, which was not part of any written university policy. Instead, the chair claimed that an “oral tradition” among administrators had created and preserved such a policy. The implementation of this new standard allowed the faculty to focus almost exclusively on the work I had done after converting to Christianity and to political conservatism.
Efforts were made to change the promotion criteria further in direct response to my protected speech. Shortly after I wrote an article criticizing UNCW chancellor Rosemary DePaolo for spending nearly $100,000 in public funds on her own installation ceremony, in direct retaliation she led an effort to change the promotion criteria to include a fourth prong for “collegiality.” To avoid a paper trail and conceal her involvement, the chancellor orally told the provost to take her collegiality proposal to the faculty senate leadership. Fortunately for the record, Provost Paul Hosier contacted the faculty senate president in writing using his university e-mail address.
Because Provost Hosier’s e-mail mentioned that the proposal came from Chancellor DePaolo and that this effort was in direct response to my public criticism of her, we were able to win a judgment for individual liability against Chancellor DePaolo at trial.
Conflicts of interest were ignored in the voting process. One professor voting on my promotion had filed a false felony complaint against me back in 2001. The North Carolina State Bureau of Investigation had fully investigated those claims in early 2002 at the behest of university officials. Although no evidence of wrongdoing was found, I was not cleared of the charges until 2006, just a few months before applying for promotion. The accuser—who was never punished for the false complaint—was not present at the department meeting where my application was considered. Nonetheless, we learned through discovery that the department chair had cast this professor’s vote by proxy against the promotion. Furthermore, when we deposed the faculty member who had made the false accusation, she admitted under oath (with remarkable candor) that her animosity toward me had its basis in my political writings.
Contradictory explanations of the decision were provided. The original letter written to me explaining the reasons for the promotion denial listed only one deficiency. That alleged deficiency was in the area of research. Discovery revealed that the letter was destroyed and replaced with one claiming deficiency in all three areas: teaching, research, and service.
Because the dean of arts and sciences was involved in the decision to destroy the original explanation and substitute a contradictory one, we won a judgment for individual liability against him at trial.
E-mails provided evidence of racially motivated retaliation at the highest levels of the university administration. Perhaps the most shocking evidence of First Amendment retaliation came from e-mails written by Max Allen, Special Assistant to the Chancellor at UNCW. Allen, who is black, wrote an e-mail to a black member of the board of trustees in response to a column of mine that criticized UNCW’s affirmative action policies. In response to Allen’s complaint about the constitutionally protected content of my column, Trustee Linda Pearce replied that the university needed to “get that man [Mike Adams] a black boss.” Rather than rebuffing the racially motivated remark, Allen actually expressed amusement. Pearce also asked Allen to identify me if we were ever in the same room together—presumably so she could express her distaste for my constitutionally protected speech.
This exchange, when presented to the jury, helped us win a judgment for individual liability against the UNCW board of trustees.
Given the wealth of evidence demonstrating that my colleagues and other UNCW administrators had violated my First Amendment-protected speech, the university was in a difficult position. The defendants would be unable to show that there was insufficient evidence to go to trial on the First Amendment claim. Therefore, the defendants argued that the trial simply should not be allowed to happen. Their strategy was to rely on Garcetti v. Ceballos (2006), even though it ultimately would not thwart my case.1 The district court judge, however, accepted their argument that Garcetti could keep me out of court, setting the stage for an important First Amendment battle before the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. Analysis of these battles requires a brief overview of what was said—and what was not said—in Garcetti.
Garcetti, Official Duties, and Academic Freedom
The facts that brought Garcetti v. Ceballos to the Supreme Court in 2005 and 2006 suggest a possible application to the relationship between faculty and administrators at public universities. Gil Garcetti, whom some may remember from his very public role in the O.J. Simpson murder case, was Los Angeles County’s attorney general when a calendar attorney named Richard Ceballos questioned some of the office’s practices surrounding the issuance of search warrants in criminal cases. Although calendar attorneys do not actually litigate cases, they do handle evidentiary documents pursuant to their duties in scheduling trials. Realistically, they cannot make scheduling decisions unless they know something about the status of the evidence-collecting process. Thus, calendar attorneys often form opinions about the strengths and weaknesses of proposed pieces of evidence.
In one case, Ceballos strongly challenged the facts used to support a warrant to search a defendant’s residence. He issued several office memos against introducing at trial any evidence based on the warrant. He finally met directly with the prosecuting attorney and, by all accounts, the meeting was highly charged. Ceballos later claimed that the fallout from that meeting resulted in several instances of retaliation, such as passing him over for a promotion.
After the Ninth Circuit ruled that Ceballos’s First Amendment rights had been violated, Garcetti appealed to the Supreme Court, which granted certiorari. In the 5–4 majority opinion, Justice Kennedy framed the issue as follows: “The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.”2
In other words, Garcetti was really going to decide whether the relationship between free speech rights and public employment would be complicated by adding a new consideration. Connick v. Myers (1983) had instructed courts to begin the inquiry by considering whether the employee’s expression was made “as a citizen upon matters of public concern.”3 Under Connick, if the answer was yes, the speech was protected unless the speaker’s interests were outweighed by a compelling government interest such as avoiding disruption of the workplace.
In Garcetti, however, the majority decided that this inquiry was too simplistic. Instead of asking only whether the employee had spoken on a matter of public concern, they also asked whether the employee’s expression was made pursuant to his official duties. They ruled that if the answer to that question was yes, then the Constitution did not insulate the speech from employer discipline.4 Speaking as a concerned citizen was not enough to protect workplace expression.
The implications of this ruling for academic freedom would be obvious given the inherent duty of a university faculty member to think, speak, and write freely. Thus, the Court refused to apply the ruling to academic freedom cases, leaving the question open for future litigation. Justice Kennedy wrote for the Garcetti majority, “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”5
In March 2010, after Judge Malcolm Howard accepted UNCW’s invitation to apply Garcetti to dismiss my First Amendment claim despite the specific reservation of the question in Garcetti, my attorneys appealed to the Fourth Circuit. Oral arguments occurred on January 26, 2011.
The Fourth Circuit Transforms Garcetti
In the opening portion of oral argument, David French, my lead counsel, reminded the three-judge panel that UNCW had changed its fundamental position. When I became an opinion columnist, UNCW repeatedly rejected the idea that my opinions represented those of the university. Literally hundreds of internal administrative e-mails documented that position. In fact, in response to complaints about my personal speech, administrators often explicitly stated that my columns were not delivered in any official capacity and that I did not speak for the university. It was only after the university was accused of retaliating against me for that very speech that the university adopted a different position. UNCW’s new position was that my columns were, in fact, part of my official duties. This meant, they argued, that under Garcetti the First Amendment did not shield my opinion pieces.
North Carolina Senior Deputy Attorney General Thomas J. Ziko attempted to resolve that contradiction in his rebuttal by employing an argument my attorneys characterized as the “transformer” argument. Ziko admitted that when I originally wrote my columns and gave my speeches, they had the protection of the First Amendment. But once the columns and speeches were mentioned on the promotion application, he claimed, they were transformed into official duties under Garcetti and, therefore, lost all First Amendment protection. Ziko specifically told the panel, “He converted his speech into his duties as a professional.”6
Judge G. Steven Agee was immediately critical of the transformer argument. Later in Ziko’s oral argument, Judge Paul V. Niemeyer also became skeptical of the transformer position and responded with a hypothetical: “We have a man who gives a political speech—a highly political speech. He seeks a promotion in his job. And one of the questions is, ‘Give us a copy of all of your speeches.’” Ziko objected to this hypothetical on the ground that UNCW had not demanded copies of my speeches. Therefore, Judge Niemeyer adapted the hypothetical into one in which the voting members of the promotion committee sought a copy of a speech given by a pro-life professor after he listed the speech on his promotion application. Judge Niemeyer then asked whether the university was defending the following position: “Since he’s much opposed to abortion we couldn’t live with him. We’re not going to promote him.”7
Although Judge Niemeyer kept pressing, twice accusing the state of taking an “aggressive” position on Garcetti, Ziko never answered the hypothetical. Of course, the deputy attorney general took the state’s position that the speech in such scenarios loses all First Amendment protection. The answer was obvious but too disturbing to admit. To those of us watching the exchange, the state’s aggressive position appeared to have cost them Judge Niemeyer’s vote.
On April 11, 2011, the court announced its unanimous decision to reverse and remand. Significant portions of the panel’s rejection of the state’s transformer argument bear repeating: [T]he district court concluded that Adams’ speech was not protected by the First Amendment because Adams’ “inclusion of the speech in his application for promotion trumped all earlier actions and marked his speech, at least for promotion purposes, as made pursuant to his official duties.” As we explain below, the district court misread Garcetti. The district court’s decision rests on several fundamental errors including its holding that that protected speech was converted into unprotected speech based on its use after the fact. In addition, the district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university.8
[T]he district court concluded that Adams’ speech was not protected by the First Amendment because Adams’ “inclusion of the speech in his application for promotion trumped all earlier actions and marked his speech, at least for promotion purposes, as made pursuant to his official duties.” As we explain below, the district court misread Garcetti. The district court’s decision rests on several fundamental errors including its holding that that protected speech was converted into unprotected speech based on its use after the fact. In addition, the district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university.8
The panel expressed concern that speeches, books, and commentaries that were clearly protected by the First Amendment could be transformed into unprotected speech, simply because they were read from a different perspective long after being uttered. One reason the panel was troubled by this determination was that it had no precedent. Garcetti had determined that Ceballos’s speech was unprotected because it was part of an official duty at the time it was expressed, not because his employer evaluated personal speech as an official duty afterward.
The judges also seemed troubled by the “double bind” argument offered by the defense and accepted by Judge Howard when he applied Garcetti to throw our case out of court in 2010. In that ruling, Judge Howard had stated that his ruling was required. Otherwise, it would allow those in [Adams’s] position to place employers in a double bind: either neglect employee requests and refuse to look at material, fueling allegations of free speech violations grounded in the refusal; or consider the material, knowing that doing so will open them up, in the event of an adverse outcome, to claims of free speech violations for basing denials on protected speech.9
would allow those in [Adams’s] position to place employers in a double bind: either neglect employee requests and refuse to look at material, fueling allegations of free speech violations grounded in the refusal; or consider the material, knowing that doing so will open them up, in the event of an adverse outcome, to claims of free speech violations for basing denials on protected speech.9
This component of Judge Howard’s ruling was indeed flawed because it failed to account for the clear distinction between content-based and viewpoint-based considerations. This distinction is relied upon in academic decision-making on a regular basis. For example, criminology professors may engage in a permissible content-based consideration that disallows students from writing term papers about quantum physics. But professors may not engage in the impermissible viewpoint-based consideration of allowing students to write about the death penalty only if they parrot the professor’s opinion.
Although the appellate panel in my case used different language, the judges made a similar distinction when disagreeing with Howard’s argument: This purported catch-22 is illusory. Adams’ inclusion of the speech at issue as part of his application promotion asked the Defendants to consider it not according to the content qua speech, but as factoring into the sweeping requirements of scholarship and service necessary to support his promotion to full professor. The Defendants were not precluded from examining the materials for a permissible purpose using lawful criteria.10
This purported catch-22 is illusory. Adams’ inclusion of the speech at issue as part of his application promotion asked the Defendants to consider it not according to the content qua speech, but as factoring into the sweeping requirements of scholarship and service necessary to support his promotion to full professor. The Defendants were not precluded from examining the materials for a permissible purpose using lawful criteria.10
In other words, the faculty could have examined my materials to observe that I was engaging the public on matters of public concern as an educated private citizen, which could be a university value when deciding on promotions, so long as the faculty did not examine them for ideological conformity with their opinions or the official positions of the university.
The panel did not go so far as to say that Garcetti could never apply to the duties of a public university faculty member. For example, a faculty member could be asked to explain his reasons for finding a student innocent in a nonacademic disciplinary case regardless of his personal opinion of the university’s disciplinary policies. The panel was simply saying that Garcetti did not apply to scholarship or teaching or even “service.” The panel concluded its Garcetti analysis with the following: Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.11
Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.11
With the Garcetti analysis complete, all that the panel had to do was revert to traditional public employment analysis and determine whether my speech was that of a citizen speaking on a matter of public concern. The panel observed that the answer was clearly yes, since the columns addressed “topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality.”12
The only other issue to be resolved was that of qualified immunity, which generally protects public officials against being sued in their personal (rather than official) capacities when they inadvertently violate fundamental rights. The defendants argued that the uncertain state of Garcetti in the academic context entitled them to this immunity. The panel disagreed, noting that while Garcetti added an additional component to the analysis, the underlying right they were accused of violating—the right of a public employee to speak as a citizen on matters of public concern—is clearly established. Since a reasonable person in the defendants’ position should have known that this right was protected, all of the defendants were stripped of qualified immunity.
Conclusion: The Ninth Circuit and Beyond
In 2014, the U.S. Court of Appeals for the Ninth Circuit took up the issue of whether Garcetti applies to the speech of a professor or teacher that is related to scholarship or teaching. The plaintiff in Demers v. Austin, David Demers, an associate professor of journalism and mass communication at Washington State University (WSU), had sued the university, alleging that he had experienced negative annual evaluations, internal audits, and a formal notice of discipline in response to his First Amendment expression.13 The speech in question was twofold. First, Demers had submitted a draft of a book critical of WSU as part of his annual evaluation materials. Second, he had published online a plan for restructuring his academic department, which included proposals that angered some of his colleagues.
Citing Adams v. UNCW as legal precedent, the Ninth Circuit ruled in favor of Demers. After announcing an exception to Garcetti for speech related to scholarship or teaching, the panel merely had to determine whether Demers’s speech addressed matters of public concern. Given the wide circulation of his plan for restructuring the department, which was posted on the Internet, they had no trouble deciding that it was indeed directed toward a matter of concern to the public.
On the issue of qualified immunity, however, the Ninth Circuit departed from the reasoning of the Fourth Circuit in Adams v. UNCW, deciding that the uncertain state of the law in the wake of Garcetti meant that defendants were entitled to qualified immunity.
Today, the law on these issues in the wake of Adams and Demers is no longer uncertain, particularly given the agreement between the Fourth and Ninth Circuits. The Fourth Circuit is considered to be relatively deferential to the state on the issue of academic freedom and tends to view academic freedom as belonging to institutions more than to individuals. Meanwhile, the Ninth Circuit tends to see academic freedom as belonging more to individuals than to institutions. Yet both circuits have rejected the view that Garcetti applies to the scholarship or teaching aspects of employment—or even the service aspect of employment in these respective instances—of a public university professor.
Given this early trend, it is likely that all of the circuits will eventually line up behind the opinion delivered in Adams v. UNCW. In the absence of a circuit split, the Supreme Court will not have to revisit the question of Garcetti’s applicability to the work of academics. That would be a great victory for academic freedom in general and for viewpoint diversity in particular. My attorneys and I have enjoyed the opportunity to begin closing the door on what once appeared to be a grave threat to academic freedom.