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Latest Cases & Developments
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 | RetaliationDate:
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 | TenureDate:
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 & StaffDate:
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 SpeechDate:
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
NACUA Annual Conference
Join us in the Music City June 29 – July 2 to connect, learn, and lead alongside higher education attorneys shaping policy, practice, and impact nationwide together.