Summary
The Ninth Circuit amended its opinion and denied panel rehearing and rehearing en banc in a First Amendment action brought by University of Washington teaching professor Stuart Reges. The panel held that the university violated Reges’s First Amendment rights by investigating, reprimanding, and threatening discipline based on statements in a course syllabus criticizing the university’s Indigenous land acknowledgment, and it remanded for further proceedings concerning relief and the constitutionality of the university’s nondiscrimination policy. Judge Thomas partially dissented, concluding that the university’s interests in protecting students and preventing disruption outweighed Reges’s speech interests.
Topics
Practice areas
Questions Presented
- Whether Reges's parody land-acknowledgment statement was protected academic speech rather than government speech under Garcetti.
- Whether the university's adverse actions violated the First Amendment under the Pickering balancing test.
- Whether the university's actions constituted viewpoint discrimination.
- Whether the district court improperly dismissed Reges's facial overbreadth and vagueness challenges to Executive Order 31 after adopting a limiting construction not readily supported by the policy's text.
- What relief should be provided on the retaliation and viewpoint-discrimination claims.
Holdings
- Reges's parody land-acknowledgment statement was protected academic speech related to teaching and scholarship and was not government speech in the circumstances presented.
- The university violated the First Amendment because Reges established a prima facie retaliation claim and the university failed to show under Pickering that its legitimate administrative interests outweighed his interest in speaking on a matter of public concern.
- Summary judgment for Reges was warranted on his viewpoint-discrimination claim because the university acted against him based on the views expressed in his parody land acknowledgment, and the claim was subject to the same Pickering analysis.
- The district court improperly construed Executive Order 31 to cover only conduct resembling unlawful discrimination, harassment, or retaliation because that construction was not readily susceptible from the policy's plain text.
Key quotations
“We hold that the university’s actions toward the professor violated his First Amendment rights. We reverse and remand for further proceedings.” (8)
“For these reasons, we agree with the district court that Reges engaged in protected speech, not government speech. He engaged in academic speech that falls outside of Garcetti’s exception to Pickering.” (31)
“Student unrest is an inevitable byproduct of our core First Amendment safeguards in the higher education context. This unrest therefore cannot be the type of disruption that permits restricting or punishing a professor’s academic speech.” (37)
“We hold that UW has not met its burden under Pickering of demonstrating that its legitimate interests outweigh Reges’s interest in speaking on a matter of public concern in the university setting.” (44)
“Because the district court’s limiting construction conflicts with the plain text of EO-31, it was improper.” (47)
Factual background
Stuart Reges, a teaching professor at the University of Washington, included in a required introductory computer science course syllabus a parody of the university's recommended Indigenous land acknowledgment. After students and university groups complained, university officials removed the statement from the online syllabus, publicly condemned it, opened a disciplinary investigation, withheld a merit-pay increase during the investigation, reprimanded Reges, and threatened further discipline if he repeated the statement in future syllabi. The university cited student distress, alleged effects on Native students, course transfers, recruiting concerns, and purported student departures as disruption, although the Ninth Circuit found the evidence insufficiently substantiated.
Procedural history
Reges sued University of Washington officials under 42 U.S.C. § 1983 after the university investigated, reprimanded, and threatened further discipline based on a parody land-acknowledgment statement in his course syllabus. The district court held that the speech was protected and addressed a matter of public concern but granted defendants summary judgment under Pickering balancing, and it dismissed the facial challenges to Executive Order 31. The Ninth Circuit reversed, directed entry of summary judgment for Reges on the retaliation and viewpoint-discrimination claims, and remanded the facial-challenge issues for further proceedings.
Remand instructions
The district court must enter summary judgment for Reges on the First Amendment retaliation and viewpoint-discrimination claims and determine the appropriate relief on those claims. The district court must reconsider the facial overbreadth and vagueness challenges to Executive Order 31 without the rejected limiting construction and determine in the first instance whether the policy is unconstitutional, including consideration of how the policy has been enforced and applied in practice.