Nahmod Law

New University Academic Freedom Decision from Ninth Circuit: Demers v. Austin

Background on Garcetti and Public Employee Free Speech

Some time ago I blogged critically about the Supreme Court‘s game-changing public employee free speech decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court held, 5-4, that a public employee whose speech is part of his or her official duties is not protected by the First Amendment from employer discipline for that speech.

Subsequently, I argued in a law review article, Academic Freedom and the Post-Garcetti Blues, that Garcetti should not apply to a college or university professor’s teaching and scholarship.

The Ninth Circuit’s Decision in Demers v. Austin

This month, the Ninth Circuit, in Demers v. Austin (PDF), No. 11-35558 (9th Cir. Sept. 4, 2013), agreed with the proposition that Garcetti should not apply to a university professor’s teaching and scholarship.

In Demers, a tenured associate professor, suing under section 1983 for damages and injunctive relief, claimed that the defendant university administrators retaliated against him in violation of the First Amendment because he distributed a short pamphlet and drafts from an in-progress book. The pamphlet, which dealt critically with a reorganization plan at the university. was distributed both internally and to the print and broadcast media as well as published on a website. In addition, the plaintiff attached drafts of his in-progress book, which included material critical of the University, on his application for sabbatical. The defendants argued that the pamphlet and the drafts were written and circulated as part of the plaintiff’s official duties and were therefore not protected by the First Amendment under Garcetti.

Rejecting that argument, the Ninth Circuit, opinion by Judge W. Fletcher, declared broadly:

“We hold that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968).” The Ninth Circuit emphasized the importance of academic freedom for teaching and writing, particularly at the university level.

Here, according to the Ninth Circuit, the pamphlet addressed a matter of public concern within the meaning of Pickering and was protected by the First Amendment. The district court therefore erred in granting summary judgment to the defendants on this issue. On the other hand, there was insufficient evidence to show that the in-progress book drafts triggered any retaliation.

Still, the defendants won on the plaintiff’s section 1983 damages claim because the defendants were entitled to qualified immunity given the uncertain state of the law after Garcetti. However, on remand, the district court should address the propriety of the plaintiff’s section 1983 injunctive relief claim.


1. The pamphlets were distributed to the public as well as internally, thereby triggering Pickering directly. Thus, there might have been no need for the Ninth Circuit to address the applicability of Garcetti: the plaintiff, at least in part, wrote as a citizen, and not as an employee.

2. The drafts of the in-progress book were not a motivating factor in the alleged retaliation against the plaintiff. Thus, strictly speaking, the Ninth Circuit’s language about Garcetti‘s inapplicability to writing (in the sense of scholarship) was dictum. The pamphlets were not scholarship.

3. Nevertheless, this decision overall is sound in its emphasis on the First Amendment protection of a college or university professor’s teaching and scholarship.

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Written by snahmod

September 16, 2013 at 1:14 pm

Posted in First Amendment

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