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  • Date:

    Josephson v. Ganzel (6th Cir. Sep. 10, 2024)

    Memorandum Opinion affirming the district court’s denial of Defendants’ Motion for Summary Judgment. Plaintiff, a former professor of psychiatry and Division Chief at the University of Louisville School of Medicine (the Medical School) brought claims alleging retaliation in violation of his First Amendment rights against multiple administrators at the Medical School. In 2017, after plaintiff shared his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank, which led to dissention amongst faculty, the Medical School first demoted him and then, did not renew his employment contract. The Sixth Circuit affirmed the district court’s rejection of the Medical School’s immunity defenses, finding that Plaintiff’s request for reinstatement as a faculty member and expungement of any reference to nonrenewal from him personnel file, are prospective in nature, and thus, not barred by Eleventh Amendment. The Circuit also found the Medical School was not entitled to qualified immunity since protections for Plaintiff’s speech were clearly established at the relevant time, and that a reasonable jury could find retaliation occurred where (1) Plaintiff participated in the off campus, privately funded panel in his individual rather than official capacity, which a moderator specifically advised attendees about prior to Plaintiff voicing his own views regarding treatment of children with gender dysphoria, which is a matter of public concern; (2) limited evidence supported that Plaintiff’s remarks yielded disharmony amongst his colleagues, including when he stormed out of a contentious faculty meeting, but that the Medical School produced no evidence that the remarks otherwise impacted either patient care or recruitment of other personnel and thus no “significant disruption” occurred; and (3) genuine factual disputes remained regarding whether Plaintiff’s demotion and subsequent termination was due to poor performance or his protected speech.  

    Topics:

    Academic Freedom & Employee Speech | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation

  • Date:

    The American Association of University Professors (AAUP) Revision to Academic Boycott Policies (Aug. 12, 2024)

    The American Association of University Professors (AAUP) revised its policy concerning academic boycotts, and published a letter on August 14th condemning the “Wave of Administrative Policies intended to Crack Down on Peaceful Campus Protest.” The revised policy supersedes the Association’s prior policy, which opposed academic boycotts and encouraged faculty to “seek alternative means, less inimical to the principle of academic freedom.” In its revised policy, the Association notes the many years of criticism the prior policy received. The new policy states that “academic boycotts are not themselves violations of academic freedom; rather, they can be considered legitimate tactical responses to conditions that are fundamentally incompatible with the mission of higher education.”  

    Topics:

    Academic Freedom & Employee Speech | Faculty & Staff

  • Date:

    Carr, et, al. v. Tr. of Purdue Univ.; Tr. of Indiana Univ. (S.D. Ind. Aug. 14, 2024)

    Order granting Defendants’ Motions to Dismiss and denying Plaintiffs’ Motion for a Preliminary Injunction. Plaintiffs, all tenured professors at Indiana public postsecondary institutions, sought a preliminary injunction to enjoin enforcement of Senate Enrolled Act 202 (SEA 202) against the Trustees of Purdue University, the Trustees of Indiana University (collectively “Boards”) and Intervenor, the State of Indiana. Plaintiffs alleged that SEA 202, which directs Boards to “adopt new policies aimed at ensuring that faculty members’ pedagogies align with the principles of free inquiry, free expression, and intellectual diversity” violates the First and Fourteenth Amendments. Plaintiffs assert that SEA 202 had a “chilling effect” on their employment because they “felt compelled to make changes to their syllabi” to abide by the policy and such efforts have been burdensome to university faculty members. Defendants argue “any injury that plaintiffs could potentially face would be attributable to the presently non-existent university polices, rather than to SEA 202 itself.” Because the court concluded Plaintiffs’ claims were “premature” requiring an “attenuated chain of inferences” and their injuries were “inchoate” due to the lack of institutional policies implementing SEA 202, it denied the request for preliminary injunction, granted Defendants’ motions to dismiss based on lack of jurisdiction, and dismissed the case without prejudice noting that it “express[ed] no view as to the merits of the[] constitutional claims, which must await further factual development.”   

    Topics:

    Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech | Tenure

  • Date:

    Idaho Federation of Teachers v. Labrador (D. Idaho July 2, 2024)

    Memorandum Decision and Order denying Plaintiffs’ Motion for Preliminary Injunction and granting Defendants’ Motion to Dismiss. Plaintiffs, individual university professors and teachers’ unions with members in the state of Idaho, brought free speech and vagueness challenges to Idaho’s No Public Funds for Abortion Act, which provides that no public funds may be used to “promote abortion” or “counsel in favor of abortion” and imposes criminal penalties for public employees who violate the prohibition. The Attorney General of Idaho, however, issued an opinion letter stating that academic speech does not fall under the Act and would not be prosecuted. In denying preliminary injunction and granting defendants’ motion to dismiss, the court found that without a risk of prosecution plaintiffs failed to demonstrate injury or redressability to establish standing.   

    Topics:

    Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech

  • Date:

    Jackson v. Wright (5th Cir. Sep. 15, 2023)

    Opinion affirming denial of Defendants’ Motion to Dismiss.  Plaintiff, a professor of music theory at the University of North Texas (UNT), is a leading scholar on the Austrian music theorist Heinrich Schenker.  He is also director of the Center for Schenkerian Studies and founding editor of the Journal of Schenkerian Studies, both of which are housed at and supported by UNT.  After plaintiff contributed an article that proved controversial to a symposium in the Journal defending Schenker against charges of racism, University officials investigated the Journal’s editorial practices, removed plaintiff as editor, and suspended the Journal’s activities pending a national search for a new editor.  Plaintiff brought First Amendment retaliation claims against the UNT Regents in their individual capacities, alleging an ongoing violation of his First Amendment rights and seeking declaratory and injunctive relief.  In affirming denial of the Regents’ Rule 12(b)(1) motion to dismiss, the Fifth Circuit held that plaintiff’s claim against the Regents properly sought only prospective relief and that he had sufficiently alleged an ongoing violation that was fairly traceable to the Regents.  

    Topics:

    Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation

  • Date:

    Pesta v. Cleveland State Univ. (N.D. Ohio July 14, 2023)

    Opinion & Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss.  Plaintiff, a former Professor of Management at Cleveland State University, brought First Amendment retaliation claims against the University and six officials after he was terminated following a committee investigation into allegations that he had used NIH data unethically.  Plaintiff alleged, however, that the investigation and termination were retaliation for his defense of the “hereditarian hypothesis” in an article entitled “Global Ancestry and Cognitive Ability.”  In permitting plaintiff to proceed in his First Amendment retaliation claims, the court found, first, that in the absence of a developed record regarding the alleged misuse of NIH data plaintiff had plausibly alleged that his speech interest outweighed the University’s interest in promoting the efficiency of its public services.  It further found that plaintiff’s assertion that prior to his termination the University had also removed links on its website to other controversial articles he had written was sufficient to allege causation.  The court, however, dismissed plaintiff’s claims for monetary damages against the University and the individual defendants in their official capacities as barred by sovereign immunity.   

    Topics:

    Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation

  • Date:

    Orr v. S. Dakota Bd. of Regents (D. S.D. May 11, 2023)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track instructor of health and physical education at Northern State University, brought multiple discrimination and retaliation claims against the University and multiple officials after he was denied tenure due to insufficient scholarship. Leading up to this decision, plaintiff took 6 weeks of paid parental leave early in 2018, returning approximately a month before he was informed of his tenure denial. Plaintiff claimed that the University unlawfully interfered with his rights under the FMLA by declining to extend 12 weeks of paid leave. The court disagreed. Although FMLA permits eligible employees to take 12 weeks of leave, the leave need not be paid. Further, plaintiff never requested an additional 6 weeks, thus extinguishing any rights he may have otherwise had under the Act. However, the court permitted plaintiff to proceed on his FMLA retaliation claim based on disputed facts about whether plaintiff was denied tenure for insufficient scholarship, as the Tenure Committee represented, or whether shifting explanations about plaintiff’s collegiality coupled with animosity and controversy related to plaintiff’s parental leave “more likely motivated” the tenure decision. The court dismissed plaintiff’s Title IX claim for lack of an adequate comparator but permitted him to proceed in his First Amendment retaliation claim against the Dean. 

    Topics:

    Academic Freedom & Employee Speech | Discrimination, Accommodation, & Diversity | Faculty & Staff | Family and Medical Leave Act (FMLA) | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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