A federal appeals court ruled yesterday that it was OK for North Carolina State University to punish a professor for “uncollegiality” after he criticized a “diversity” question on student evaluations, and a diversity-oriented faculty search, and wrote a blog post about the increasingly “woke” nature of his field. This is the same federal appeals court that ruled on May 31 that it was OK for a university to send “bias response teams” after students for constitutionally protected speech that didn’t remotely constitute harassment or discrimination (that same ruling wrongly refused to block an onerous requirement that students apply for a permit on behalf of a registered student group before handing out leaflets anywhere on Virginia Tech’s 2600 acre campus, based on an absurd rationale: an alleged scarcity of space).
Both these decisions by the U.S. Fourth Circuit Court of Appeals were 2-to-1 rulings, with judges appointed by Democrats in the majority, and a judge appointed by a Republican in the minority.
Its decision yesterday in Porter v. Board of Trustees of North Carolina State University conflicts with past First Amendment rulings said public employees’ speech doesn’t need to be civil or collegial to be protected by the First Amendment. The Supreme Court ruled in favor of a law enforcement employee who expressed regret that the assassination attempt on Ronald Reagan had failed, saying “If they go for him again, I hope they get him.” The Supreme Court explained in that ruling that “the inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” (See Rankin v. McPherson, 483 U.S. 378, 387 (1987)).
Yet the Fourth Circuit ruled that the professor’s email about a diversity-oriented faculty search, which complained that a colleague “cut corners [in] vetting” a black finalist “out of a desire to hire a Black scholar whose work focused on racial issues,” was not on a matter of public concern — and thus not protected by the First Amendment, because it (a) “was an unprofessional attack on one of [his] colleagues,” and (b) was “sent only to other faculty members.” This “unprofessionalism” claim is diametrically at odds with the Supreme Court’s Rankin decision saying that “the inappropriate…character of a statement is irrelevant to the question whether it deals with a matter of public concern.” The fact that Professor Porter’s email was not sent to the public but rather “only to other faculty members” does not prevent it from being protected, because the Supreme Court ruled that even private complaints about racial double standards are about a matter of public concern, and thus protected by the First Amendment, in Givhan v. Western Line Consolidated School District (1979).
The Fourth Circuit’s decision creates a split of authority with other courts, which have ruled that even private complaints about diversity hiring are protected and on a matter of public concern, even when they are expressed in an uncollegial and unprofessional way. In California Department of Corrections v. State Personnel Board (1997), the California Court of Appeals overturned the termination of a white prison guard for an angry, intemperate diatribe against affirmative action made to a Hispanic employee he viewed as benefiting from it. Similarly, a federal appeals court ruled that the First Amendment protected an “assistant fire chief in charge of personnel” from being fired for expressing views at odds with his city’s own “policy on affirmative action” in private phone calls with staff for a minority-advocacy group. (See Meyers v. City of Cincinnati (1991)).
The Fourth Circuit ruled that the professor’s criticism of the “diversity” question because survey design was not protected by the First Amendment because it just involved the professor “doing [his] job,” and when a typical public employee is just carrying out his job, that is not protected by the First Amendment, according to the Supreme Court’s decision in Garcetti v. Ceballos (2005). But that made no sense, because no one — not the court, and no one else — suggested he had any job duty to vet the survey, and thus it could not be argued that he “was fulfilling a responsibility imposed by his employment” in opining on it, as the Supreme Court says renders workplace speech unprotected by the First Amendment. Porter’s question did have to do with a topic within his professional expertise—survey design— but the Fourth Circuit did not cite that, and in any event, his speech would not lose First Amendment protection under Supreme Court precedent just because the “subject matter” of his speech was “related to [his] job.” Instead, according to the Supreme Court, the “critical question” in distinguishing speech made as an employee from speech made as a citizen is “whether the speech at issue is itself ordinarily within the scope of an employee’s duties.” (See Lane v. Franks (2014)).
The Fourth Circuit did not decide whether the professor’s blog post about the increasingly “woke” nature of his field was protected by the First Amendment (as it plainly was, under earlier Fourth Circuit decisions like Adams v. University of North Carolina (2011) and Seemuller v. Fairfax County School Board (1988)).
Instead, it asserted that the blog post was not the reason he was forced out of his program into another program with few students, which could lead to him losing his job in the future. Instead, that happened because of his “uncollegiality,” it said.
But the professor alleged that his removal was because of the blog post, and his court complaint adequately pled discrimination based on his speech under the Supreme Court’s decision in Swierciewicz v. Sorema (2002). That Supreme Court decision says discrimination complaints can’t be dismissed for lack of evidence on a motion to dismiss, as the Fourth Circuit did here, but rather must be allowed to proceed through discovery, enabling a plaintiff to prove its case through evidence gathering. The Supreme Court said that a discrimination complaint can just allege that someone was fired based on their age, and not have to prove that they were in fact discriminated against based on their age, to avoid being dismissed at the introduction “motion to dismiss” phase on a lawsuit.
Moreover, the professor did cite circumstantial evidence that his blog post caused the allegedly retaliatory action against him — namely, that the University began preparing adverse action against him shortly after the blog post, as Judge Richardson noted in his dissent. Such temporal proximity has been cited by courts, over and over again, to send discrimination cases to a jury, finding that it is sufficient evidence for a jury to find liability on the part of the employer. (See, e.g., Constantine v. Rectors and Visitors of University of Virginia, 411 F.3d 474, 501 (4th Cir. 2005) (concluding that a four-month gap was sufficiently close temporal proximity to allow a retaliation claim to survive a motion to dismiss); Holava-Brown v. General Electric, 1999 WL 642966, *4 (2d Cir. Aug. 10, 1999) (adverse action two to three months after a discrimination complaint was evidence of retaliation)).
As Judge Richardson noted in his dissent, “Porter published his blog post in September. Pasque suggested that he leave his program area at the October faculty meeting, and formally threatened to remove him in her November letter. Finally, she followed through on her threat in July, when she gave Porter his annual evaluation.”
The majority focused on the length of time between the blog post and the action forcing the professor out of his program, saying it was too long to draw an inference of retaliation (based on temporal proximity between the blog post and the adverse action). But what matters is when the retaliatory process begins, not when it reaches fruition. Obviously, colleges don’t instantly fire or demote tenure faculty the way many private-sector employers do, but rather take months to get rid of them.
And evidence of temporal proximity is not usually needed at the earliest stage of a lawsuit (the motion-to-dismiss phase), which is where the Fourth Circuit prematurely dismissed Professor Porter’s claims, but rather only a the summary judgment stage, which his lawsuit was never allowed to reach, depriving him of the ability to gather evidence proving his claims through discovery and other means.
Even if Professor Porter’s speech were somehow unprotected (which it isn’t), the naked viewpoint discrimination against him by the university raises eyebrows. The “uncollegiality” excuse is obviously a mask for viewpoint discrimination, given that university employees routinely are a thousand times more uncivil or uncollegial than Professor Porter, without receiving any discipline at all. For example, a professor’s article in a campus publication yearning for the death of the college president was ruled protected by the First Amendment in Bauer v. Sampson (2001). The Ninth Circuit Court of Appeals ruled that could not be punished under the college’s policy against “workplace violence.” Criticism of college officials is protected speech, unless it contains “overt threats,” according to the Eleventh Circuit Court of Appeals’ ruling in Barnes v. Zaccari (2012)
Occasionally, federal appeals courts have ruled that even otherwise unprotected public employee speech can’t be punished based on viewpoint. For example, two other circuits have said that public employers can’t use “disruption” as an excuse for singling out particular viewpoints for punishment in public employee speech. (See Locurto v. Safir, 264 F.3d 154, 168 (2d Cir. 2001); American Postal Workers Union v. U.S. Postal Service, 830 F.2d 294, 311 (D.C. Cir. 1987)).
Here, the concern about viewpoint discrimination applies with even more force, because it is in the university setting, where “viewpoint discrimination” is considered “egregious,” and restrictions on speech act “against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” (Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 829, 835 (1995)).
