Today, the Fourth Circuit reversed the district court’s dismissal of a promotion case brought by a faculty member at the University of North Carolina – Wilmington, where the plaintiff alleged that he was discriminated against on the basis of his religion and for his speech about religion and related issues. The plaintiff had a reputation for being very outspoken about religious topics and other issues, to the discomfort of some of his colleagues.
While the Fourth Circuit agreed that the plaintiff could not show a Title VII violation (since he could not prove that his religion was a "motivating factor" in defendants’ decision not to give him a promotion), the Fourth Circuit decisively rejected the defendants’ argument that the plaintiff’s articles and speeches on religious issues were excluded from First Amendment protection under the Supreme Court’s decision in Garcetti (the so-called duty speech exception). Here, the articles and speeches were not part of his job duties to teach the students, and did not become duty speech merely because, some time later, he used those articles and speeches as part of his promotion application. Some excerpts follow: http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/101413.P.pdf Adams v. Trustees of the University of North Carolina-Wilmington, No. 10-1413 (4th Cir. Apr. 6, 2011). Affirmed in part, reversed in part, and remanded by published opinion. Judge Agee wrote the opinion, in which Chief Judge Traxler and Judge Niemeyer joined. . . . . Citing Garcetti v. Ceballos, 547 U.S. 410 (2006), for the proposition that "when a public employee makes a statement pursuant to his ‘official duties,’ he does not ‘speak as a citizen,’" the district court observed that it "must focus not on the content of the speech but on the role the speaker occupied when he said it." (J.A. 1385.) The court then concluded that when Adams listed his columns, publications, and public appearances in his promotion application, he "implicit[ly] acknowledge[d] that they were expressions made pursuant to his professional duties—that he was acting as a faculty member when he said them." (J.A. 1385.) As a consequence, the district court concluded that Adams’ speech was not protected by the First Amendment because Adams’ "inclusion of the speech in his application for promotion trumped all earlier actions and marked his speech, at least for promotion purposes, as made pursuant to his official duties." (J.A. 1386.) As we explain below, the district court misread Garcetti. The district court’s decision rests on several fundamental errors including its holding that protected speech was converted into unprotected speech based on its use after the fact. In addition, the district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university. See Garcetti, 547 U.S. at 425. Nor did the district court take into consideration the only Fourth Circuit case addressing a similar issue, Lee, 484 F.3d at 694 & n.11. The district court’s initial error lies in its conclusion that Adams’ speech, which the Defendants agree was protected First Amendment speech when initially given, was converted into unprotected speech based on factors that came into play only after the protected speech was made. Although the district court framed the issue properly by noting it must focus "not on the content of the speech but on the role the speaker occupied when he said it," J.A. 1385, the court’s subsequent analysis ignores the role Adams occupied when he "spoke." Instead, the court’s basis for determining the First Amendment did not protect Adams’ speech was Adams’ subsequent inclusion of past protected speech as part of his promotion application. In effect, the district court held that Adams’ speech in his columns, books, and commentaries, although undoubtedly protected speech when given, was somehow transformed into unprotected speech because Dr. Cook and others read the same items from a different perspective long after Adams’ speech was uttered. The district court cited no precedent for this determination, that protected speech can lose its First Amendment protected status based on a later reading of that speech. Although the Defendants understandably agree with the district court’s holding, they also provide no precedent for the phenomenon of converting protected speech to unprotected speech after the fact. Nor does the district court’s analysis find any support in Garcetti, which focused on the nature of the employee’s speech at the time it was made. See 547 U.S. at 421-22. Nothing about listing the speech on Adams’ promotion application changed Adams’ status when he spoke or the content of the speech when made. . . . . . . . We are also persuaded that Garcetti would not apply in the academic context of a public university as represented by the facts of this case. Our conclusion is based on the clear reservation of the issue in Garcetti, Fourth Circuit precedent, and the aspect of scholarship and teaching reflected by Adams’ speech. In Garcetti, the Supreme Court conducted a specific analysis associated with the first prong of the McVey test and the Pickering-Connick factors, to determine whether a public employee spoke as a citizen on a matter of public concern. The plaintiff, Ceballos, wrote a memorandum as part of his official duties as a deputy district attorney asserting various perceived inaccuracies in an affidavit used to obtain a search warrant in a pending criminal case. 547 U.S. 413-15. Ceballos’ employer, the county district attorney’s office, subsequently altered Ceballos’ duties, and Ceballos sued alleging retaliation based on his memo. Id. at 415. The Supreme Court determined that Ceballos’ claim failed because he was not speaking as a citizen when he wrote the memo. In so doing, the Court concluded, "[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created." Id. at 421-22. Accordingly, the Supreme Court held the First Amendment does not "protect[ ] a government employee from discipline based on speech made pursuant to the employee’s official duties." Id. at 413. . . . . . . . There may be instances in which a public university faculty member’s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching. In that circumstance, Garcetti may apply to the specific instances of the faculty member’s speech carrying out those duties. However, that is clearly not the circumstance in the case at bar. Defendants agree Adams’ speech involves scholarship and teaching; indeed, as we discuss below, that is one of the reasons they say Garcetti should apply – because UNCW paid Adams to be a scholar and a teacher regardless of the setting for his work. But the scholarship and teaching in this case, Adams’ speech, was intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams’ assigned teaching duties at UNCW or any other terms of his employment found in the record. Defendants concede none of Adams’ speech was undertaken at the direction of UNCW, paid for by UNCW, or had any direct application to his UNCW duties. Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment. In light of the above factors, we will not apply Garcetti to the circumstances of this case.
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