Heim v. Daniel

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

JOHN J. HEIM,

Plaintiff,

-v- 1:18-CV-836

BETTY DANIEL and

ADRIAN MASTERS,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

APPEARANCES: OF COUNSEL:

COOPER, ERVING & SAVAGE, LLP PHILLIP G. STECK, ESQ.

Attorneys for Plaintiff

39 North Pearl Street, 4th Floor

Albany, NY 12207

NOLAN HELLER KAUFFMAN, LLP BRIAN DEINHART, ESQ.

Attorneys for Plaintiff

80 State Street, 11th Floor

Albany, NY 12207

HON. LETITIA JAMES MELISSA A. LATINO, ESQ.

New York State Attorney General SHANNAN COLLIER

Attorneys for Defendants KRASNOKUTSKI, ESQ.

The Capitol Ass’t Attorneys General

Albany, NY 12224

DAVID N. HURD

United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION .......................................................................................... 3

II. BACKGROUND ........................................................................................... 4

A. Professional Background ..........................................................................5

B. Teaching Experience ..................................................................................7

C. SUNY Albany .............................................................................................8

D. Yue Li ..........................................................................................................9

E. Lewis Segal .............................................................................................. 10

F. Ben Griffy ................................................................................................. 11

III. LEGAL STANDARD ............................................................................... 15

IV. DISCUSSION ............................................................................................ 16

A. Academic Freedom .................................................................................. 18

B. Retaliation ............................................................................................... 23

1. Protected Speech or Conduct ........................................................ 24

i. Garcetti .................................................................................. 27

ii. Pickering and Connick......................................................... 31

2. Adverse Action ............................................................................... 35

3. Causation ....................................................................................... 37

C. Limited Public Forum ............................................................................. 42

V. CONCLUSION ........................................................................................... 43

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

On July 16, 2018, plaintiff John J. Heim (“Heim” or “plaintiff”), an adjunct

professor at the State University of New York (“SUNY”) at Albany, filed this

42 U.S.C. § 1983 action against defendants SUNY Albany, the SUNY system,

SUNY Albany President Havidan Rodriguez (“President Rodriguez”), SUNY

Albany professor Betty Daniel (“Daniel”), and SUNY Albany professor Adrian

Masters (“Masters”). Dkt. No. 3.

Heim’s three-count amended complaint alleged that defendants violated

his civil rights under the First and Fourteenth Amendments to the U.S.

Constitution and the New York State Human Rights Law when they refused

to interview or hire him for a tenure-track faculty position in the economics

department at SUNY Albany. Dkt. No. 4.

On September 28, 2018, defendants moved under Federal Rule of Civil

Procedure 12(b) to dismiss Heim’s amended complaint. Dkt. No. 9. After oral

argument, defendants’ motion was granted in part and denied in part in a

decision rendered from the bench. Dkt. No. 17. Plaintiff’s § 1983 claim

against President Rodriguez (Second Cause of Action) was dismissed. Id. So

too was plaintiff’s Human Rights Law claim for age discrimination against

SUNY Albany and the SUNY system (Third Cause of Action).1 Id.

Thereafter, the parties completed discovery into Heim’s First Cause of

Action; i.e., his § 1983 claim that defendants Daniel and Masters, the two

SUNY Albany professors responsible for making hiring decisions in the

economics department, violated his First Amendment rights.2 Dkt. No. 18.

On January 31, 2022, Daniel and Masters (collectively “defendants”)

moved under Federal Rule of Civil Procedure 56 for summary judgment on

this remaining claim. Dkt. No. 73. The motion has been fully briefed and

will be considered on the basis of the submissions without oral argument.

II. BACKGROUND

Defendants have filed a Statement of Material Facts in accordance with

the Local Rules, but a review of Heim’s response to this document reveals

that he partially or completely denies (and frequently disputes the

1 In his opposition to the pre-answer motion to dismiss, Heim also conceded that his claims

against SUNY Albany and SUNY were barred by state sovereign immunity. Dkt. No. 12 at 3. And

as mentioned supra, plaintiff’s claim for prospective injunctive relief against President Rodriguez

has been dismissed. Although it is not clear from the docket sheet, there are no claims remaining

against these three parties. See Defs.’ Answer, Dkt. No. 18 (joining issue on behalf of defendants

Daniel and Masters only). Accordingly, the Clerk of the Court will be directed to terminate these

parties as defendants.

2 Heim’s amended complaint also set forth a “reserved” space for a fourth cause of action in

anticipation of a further amendment to his pleading that would include a claim based on the Age

Discrimination in Employment Act (“ADEA”). Am. Compl. ¶¶ 58–60. However, a review of the

docket sheet indicates that plaintiff did not follow through with any further amendment to his

pleading. Accordingly, the Court declines to consider any claim under the ADEA.

characterization of) most of the factual assertions set forth in defendants’

filing. See Pl.’s Response to Defs.’ Facts, Dkt. No. 73-1. Because of the

Court’s obligation to resolve fact disputes in the non-movant’s favor on

summary judgment, most of the background set out in this section is taken

from plaintiff’s affidavit in opposition and from his own deposition testimony.

A. Professional Background

Heim holds a Ph.D. in political economy from SUNY Albany and a

master’s degree in Public Administration from Harvard University. Heim

Aff., Dkt. No. 73-2 ¶ 5. Plaintiff has also received certificates in executive

leadership, construction management, double-entry governmental

accounting, and audit training. Id. ¶ 6.

Heim has worked as an econometrician in various New York State

agencies and for the City of Buffalo. Heim Aff. ¶ 7. He considers himself a

macroeconomist, which involves the study of whole economies; i.e., it is “the

part of economics concerned with large-scale or general economic factors and

how they interact.” Id. ¶ 17.

Heim also considers himself a Keynesian3, which in his view places him on

the traditionalist side of a long-running “intellectual battle” with a separate

3 So named for John Maynard Keynes, a British economist whose work during the Great

Depression departed from the classical view that in the long run the economy would achieve general

equilibrium without the need for government intervention. Heim Aff. ¶ 18. Keynes, in contrast to

his contemporaries, advocated for countercyclical fiscal policies that would prop up aggregate

demand in a depressed economy. See id.

group of economists who prefer to study Dynamic Stochastic General

Equilibrium (“DSGE”), “a method that uses sophisticated mathematics such

as logarithms to derive the behavior of the macro economy from the micro

economy.” Heim Aff. ¶¶ 18, 22, 24.

As Heim explains, DSGE is popular among the so-called “freshwater

economists,” who study and teach at universities located in the interior of the

United States, while traditional Keynesian theory has historically enjoyed

“greater allegiance” among “saltwater economists,” who study and teach at

universities located on the coasts. Heim Aff. ¶ 24. Adherents to DSGE (also

known as the “micro foundations of macro”) criticize Keynesianism as an

outdated theory because, inter alia, it failed to provide a suitable policy

response to the severe stagflation of the 1970s.4 See id. ¶¶ 18–24.

However, Keynesians—including Heim—dispute the explanatory power of

DSGE’s approach. See Heim Aff. ¶ 23. They believe that DSGE’s emphasis

on “equilibrium is an effort to revive neo-classical free market economic

theory.” Id. They also believe that this kind of thinking “paralyzed the

ability of economists to respond to events like the Great Depression or the

Financial Crisis of 2008.” Id. Plaintiff asserts that Keynesianism “remains a

4 One prominent critic is the American economist Robert E. Lucas, Jr., for whom the “Lucas

critique” is named. In the wake of this and other criticisms, a group of economists known as “New

Keynesians” have sprung up. They “try to bridge the gap” between traditional Keynesian analysis

and DSGE. Heim Aff. ¶ 24 n.6.

respected point of view worldwide” and firmly believes that “[y]oung

economists need access to both points of view to prepare for the economic

future.” Id. ¶ 26.

Heim’s particular area of research is “Hicksian IS-LM” type analysis,

which is a kind of Keynesianism that involves “a highly detailed statistically

based look at how the economy operates.” Heim Aff. ¶ 27. From this

statistical information, plaintiff is able to “develop equations to create a

model for how the whole economy works.” Id. Unlike plaintiff, defendants

Daniel and Masters adhere to the DSGE or “micro foundations of macro”

approach to economics. Id. ¶ 31. In plaintiff’s view, Daniel and Masters “are

hostile to traditional Keynesian analysis.” Id.

B. Teaching Experience

In 1997, Rensselaer Polytechnic Institute (“RPI”) hired Heim as a clinical

professor in its economics department. Heim Aff. ¶ 8. Plaintiff taught

economics at RPI from 1998 to 2012. Id. In particular, plaintiff “taught

Masters and Ph.D.-level Advanced Microeconomics I & II and Master’s level

Econometrics.” Id. Plaintiff also “supervised 100 senior theses, four masters’

theses, and three doctoral dissertations.” Id. ¶ 9.

RPI promoted Heim on several occasions, and over the years he eventually

received the title of full clinical professor. Heim Aff. ¶ 8. According to

plaintiff, the duties of a full clinical professor at RPI were limited to teaching

and administration. Id. Because a clinical teaching position did not offer

tenure, “RPI made no decision on granting or denying [him] tenure.” Id.

Notably, in 1997 Heim also taught a class in macroeconomics to

undergraduates at SUNY Albany. Heim Aff. ¶ 11; Ex. A to Latino Decl.

(“Heim Dep.”), Dkt. No. 68-3 at 35:2–3, 36:21–34:2. According to plaintiff, he

was recruited to do so by Kajal Lahiri, “a noted econometrician and the

highest-ranking professor in the economics department,” and by Terry Kinal,

another econometrician who was at that time the chair of SUNY Albany’s

economics department. Heim Aff. ¶ 10.

C. SUNY Albany

Later, in 2012, SUNY Albany hired Heim as an adjunct professor in its

economics department. Defs.’ Facts, Dkt. No. 68-1 ¶ 1; Heim Aff. ¶ 11. As

plaintiff explains, he “came to SUNY Albany to reduce [his] teaching course

load and concentrate more on [his] research,” which “focused on large-scale

macroeconomic modeling and whether particular economic ideas or models

conformed to reality based on statistical testing.” Heim Aff. ¶ 10.

During his first semester at SUNY Albany, Heim taught a class on

large-scale macroeconomic modeling to both undergraduate and graduate

students. Heim Aff. ¶ 11; Heim Dep. 38:19–39:5. However, when defendant

Daniel became the chair of the economics department she “denied [plaintiff]

the opportunity to continue teaching that class.” Heim Aff. ¶ 11.

“After losing that opportunity, up until June 2021, [Heim] was teaching a

full course load (two courses) at SUNY equal to that of tenure-track faculty

including, from time to time, Principles of Macroeconomics and Economic

Statistics.” Heim Aff. ¶ 11; see also Heim Dep. at 38:8–70:9 (describing

courses taught each semester during this time period).

In 2017 and 2021, Heim also wrote a total of four books, which were

published by “Macmillan Palgrave Co., a renowned academic publisher” and

listed in the Journal of Economic Literature, which highlights significant

publications in the field of economics.” Heim Aff. ¶ 12. These books received

favorable reviews. See id. ¶ 13. One of these books, entitled Crowding Out

Fiscal Stimulus, was publicized by SUNY Albany. Id. ¶ 14. Plaintiff was

also honored by the university for his publications. Id. According to plaintiff,

“no member of the macroeconomics faculty has published any books since the

department’s creation in the 1960s.” Id.

D. Yue Li

On December 17, 2013, Heim learned about a macroeconomics job opening

in the economics department at SUNY Albany.5 Heim Aff. ¶ 43. When

5 Heim believes that “[t]he people who call themselves macroeconomists at SUNY Albany” do

not actually study or research true macroeconomics. Heim Aff. ¶ 28. In plaintiff’s view, these

professors “look at much smaller parts of the economy, like the labor market, or particular practices

in the health care market, and analyze certain behaviors in it.” Id. While “[t]his type of work is

particularly suitable for publication in various journals in rather short articles,” plaintiff insists that

this kind of work “did not used to be called macroeconomics at all.” Id.

plaintiff “asked then economics department chair [Daniel] about it, she

discouraged him from applying.” Id. In an e-mail to plaintiff, Daniel stated:

Thanks for your interest in the macro position. You

are correct that we are heavily invested in micro

foundations of macro as this is the research trend in

the top macro and general field journals. Since we

expect our faculty to publish in these journals, we do

intend to continue with this direction.

I did consult with Adrian [Masters] and John and we

agree with you that your research differs from the

course of research we want to pursue. I expect that we

will hire a junior person recently trained in these

techniques.

I do want to encourage you to continue your research.

It just does not match with the direction we are taking

macro research in the Department.

Ex. F to Heim Aff., Dkt. No. 73-8. The economics department hired Yue Li to

fill this position. Heim Aff. ¶ 43.

E. Lewis Segal

In 2016, Heim learned that “a positon [sic] at the University of Albany in

financial economics had been created and filled with another younger adjunct

faculty member.” Heim Aff. ¶ 44. Despite his “background in financial

economics,” no one mentioned to plaintiff “that a position had been created

until after it was filled.” Id. According to plaintiff, “the department sought

and obtained a waiver of the normal competitive hiring process from the

University administration.” Id.

Heim did not apply for this job. Heim Dep. at 105:2–8. Instead, the

department hired Lewis Segal to fill this position. Id. Plaintiff concedes that

Segal was also qualified, but believes himself to have been equally or “maybe

a little bit more” qualified for it. Heim Dep. at 101:23–102:7.

F. Ben Griffy

On August 24, 2017, Heim learned of yet another job opening in the

economics department during a luncheon with Daniel and Masters. Heim

Aff. ¶ 45. Neither Masters, who had become chair of the economics

department in 2016, nor Daniel, who headed up the search committee for this

particular job opening, had advised plaintiff of the posting “even though both

work within about 100 feet of [his] office” and pass him regularly in the

university’s hallways. Id.; see also Heim Dep. at 72:17–22. According to

plaintiff, defendant Daniel “told [him] flat out that he was too old to be

considered for a tenure-track position.” Id.

On October 27, 2017, Heim submitted an application for the job posting

anyway. Heim Aff. ¶ 46. He received a confirmation e-mail from SUNY

Albany’s Office of Human Resources. Ex. G to Heim Aff., Dkt. No. 73-9. He

also informed Masters, the chair of the economics department, that he had

applied for the job. Heim Aff. ¶ 46. Although plaintiff was “much more

highly qualified,” he was not interviewed. Id.

On December 14, 2017, Heim asked Masters why he had not been selected

for an interview. See Heim Aff. ¶ 48. According to plaintiff, Masters told him

that he was not considered because his recommendations had not been

received by the cut-off date.6 Id. ¶¶ 47–48. As plaintiff explains, a

third-party entity responsible for compiling application materials—referred

to by him as a clearinghouse—received “two of the recommendations” but

“did not forward them to the University” for consideration. Id. ¶ 49.

Heim contends this occurred because of a technical glitch with the

clearinghouse’s website, because when he conducted his own search for the

job opening it “came up empty.” Heim Aff. ¶ 50. According to plaintiff, other

faculty members he routinely saw around the office knew he had applied for

the position and should have advised him about the problem with his

“missing” recommendations. Id. ¶ 49. Plaintiff submitted to Masters a

statement from the clearinghouse that showed, in plaintiff’s view, there was

an error with the system. Id. ¶ 50; Ex. I to Heim Aff., Dkt. No. 78-11.

On December 19, 2017, Masters responded by e-mail to Heim’s complaint

about the clearinghouse. Heim Aff. ¶ 51. Masters denied “that there was any

problem with the clearinghouse.” Id. Masters further stated that he and the

6 The cut-off date for the application was actually March 15, 2018. Heim Aff. ¶ 47.

committee had considered whether to interview plaintiff irrespective of the

fact that they had not received his recommendation letters:

We are bound by university rules to consider all

applicants the same way. That you have direct access

to me does not mean that you should get preferential

treatment. Here is my final word on this matter:

The department respects you and respects the fact

that you continue to conduct your research as an

adjunct professor. The technical reason we put down

for not interviewing you is that we did not have letters

and I told you that at the party. At the party I also

gave you the “Cliff Notes” on the general feeling of the

committee towards your application. Until now I have

not given you chapter and verse because I am still

happy to have you as a member of the department but

you have now forced my hand on this. The fact is the

committee did discuss your application and, as with

many applicants with a track record, concluded that

regardless of what any letters said we would not

interview you for the position. Here is why:

We are looking for someone who:

1. Can teach and train students to conduct

research in the modern (i.e. post Lucas

Critique) macroeconomics that by your own

admission everyone else but you and Ray Fair

do. Nothing in your credentials supports that

possibility.

2. Has a reasonable expectation of making tenure

within the department within the 6 year tenure

track window. Here again the fact that you have

a record speaks for itself. Nothing a letter writer

can do can change that. The journals in which

you have published do not achieve the standard

that we expect for tenure. (Typically 4 articles in

journals at the level of top field e.g. Journal of

Monetary Economics or the International

Economic Review.

3. Has sufficient synergies with our research

agendas that we can learn from them and them

from us with the possibility of constructive

collaboration. Your work is not consistent with

that expectation. Indeed, we rejected a number

of applications that met the first 2 criteria but

they do New Keynesian macro that we do not

appreciate.

I hope you are not too discouraged by this and continue

to teach and do your work within the department as

an adjunct professor but the fact is that you will not be

hired for this job. Meanwhile there were perhaps close

to 100 jobs for macroeconomics posted in JOE. I would

encourage you to apply to as many of those as possible.

One of them might be a god [sic] fit for you but ours is

not.

I will not respond to anymore [sic] correspondence on

this matter. As far as the committee is concerned the

matter is closed. To respond any more to you would be

to give you preferential treatment over other

applicants.

Ex. J. to Heim Aff., Dkt. No. 78-12 (some formatting supplied).

On December 20, 2017, Heim responded to Masters and requested that he

reconsider the department’s refusal to interview him. Heim Aff. ¶ 54. As

part of this request, plaintiff noted that DSGE economics “had come under

heavy criticism within the profession” and stated his view that SUNY Albany

“would benefit from having a recognized alternative, or at least by having a

healthy debate on these issues.” Id. Although plaintiff included statements

from prominent DSGE critics, Masters dismissed them as “old guys!” Id.

Ultimately, the department hired Ben Griffy to fill this position. Heim

Aff. ¶ 46. According to plaintiff, Griffy is less qualified than him. Heim Dep.

at 107:19–108:6, 119:20–23. Plaintiff continues to be employed as an adjunct

faculty member in SUNY Albany’s economics department.7 See, e.g., Heim

Dep. at 68:19–20.

III. LEGAL STANDARD

The entry of summary judgment is warranted “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a). An issue of fact is

material for purposes of this inquiry if it “might affect the outcome of the suit

under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). And a dispute of material fact is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id.

In assessing whether there are any genuine disputes of material fact,

“a court must resolve any ambiguities and draw all inferences from the facts

in a light most favorable to the nonmoving party.” Ward v. Stewart, 286 F.

Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Summary judgment is

7 See also Other Faculty and Staff, University at Albany, State University of New York,

https://www.albany.edu/economics/faculty/other-faculty-and-staff (last visited April 21, 2022).

inappropriate where a “review of the record reveals sufficient evidence for a

rational trier of fact to find in the [non-movant’s] favor.” Treglia v. Town of

Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).

IV. DISCUSSION

In their briefing, the parties spend time sparring over whether Keynesian

economics is an “antiquated” field of study or whether Keynesian economists

“use[ ] dated techniques.” Defs.’ Facts ¶ 8; see also, e.g., id. ¶ 12 (“Keynesian

economics has not been published in serious journals since the 70’s.”); ¶ 20

(characterizing academic journals in which plaintiff has published as

“lower-tier”); Defs.’ Reply, Dkt. No. 77 at 11 (analogizing a Keynesian

economist to a physicist “who teaches and advocates for the ‘flat Earth’

theory); Masters Decl., Dkt. No. 77-1 ¶ 19 (comparing DSGE methods to

“engineer[ing] an Instant Pot (for fast and efficient cooking)” and contrasting

a Keynesian’s methodological approach to “rubbing two sticks together for

fire as the best source of heating food”).

But much of this is irrelevant. Heim’s claim is based on a relatively

straightforward premise. As plaintiff explained at his deposition:

Q. So Professor Heim, why did you decide to sue Betty

Daniel [and defendant Masters]?

. . . .

A. Okay. Well, I was at Albany. They were recruiting

macroeconomics beginning level, macro-economics

professor. And I knew I was more than qualified

for at least for consideration, but, in fact, more than

qualified by a long stretch, probably than any other

applicant would be. And yet they refused to

entertain my application.

So I couldn’t figure it out. It could not have been on

the substance by lacking substance in all the areas

that a macro professor is expected to know. So I

figured it had to be something other than the

knowledge of the job.

And the only thing I could think of is, they are a

different kind of economist than I am. They are

what - - what is commonly called D.S.G.E.

economist, she and Adrian [Masters], which is - -

which is like a con - - very conservative school of

economics.

And my type of economics is Keynesian, which is

considered a more liberal type of economics . . . .

And they had made clear to me that they did not

want a person with that kind of background in the

department.

. . . .

Q. And do you believe that you were denied the three

positions that we’ve discussed . . . because of your

endorsement of Keynesian economics?

A. Yes.

Heim Dep. 76:5–77:9, 122:16–21.

In other words, Heim alleges that defendants refused to consider him for a

tenure-track faculty job for which he was otherwise qualified because they

are biased against his economic viewpoint and the academic speech and

writing activities related to it. Understanding this claim does not require the

reader to form any concrete opinions about the internecine conflict over

arcane theory that is apparently being waged in university economics

departments across the country.

Instead, the difficult question posed by this § 1983 claim is which First

Amendment framework should govern the legal analysis. That question, in

turn, is layered with extra complexity because Heim has taken such a broad

approach to his protected “speech” that it threatens to frustrate meaningful

legal analysis. After all, plaintiff has been teaching, writing, and advocating

for Keynesian economic concepts—in SUNY classrooms and outside of

them—since well before 2012, when he first joined SUNY Albany’s faculty.

A. Academic Freedom

As an initial matter, to the extent Heim’s § 1983 claim is based on the

general First Amendment right of “academic freedom,” that claim must be

dismissed.

“The general right to academic freedom is a ‘First Amendment protection

that has long been recognized in the academic arena.’” Radolf v. Univ. of

Conn., 364 F. Supp. 2d 204, 215 (D. Conn. 2005) (quoting Hayut v. State

Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003)). It “rests on a recognition of

‘the vital role in a democracy that is played by those who guide and train our

youth.’” Burt v. Gates, 502 F.3d 183, 190 (2d Cir. 2007) (quoting Sweezy v.

New Hampshire, 354 U.S. 234, 250 (1957)).

“[F]or decades it has been clearly established that the First Amendment

tolerates neither laws nor other means of coercion, persuasion or intimidation

‘that cast a pall of orthodoxy’ over the free exchange of ideas in the

classroom.” Dube v. State Univ. of N.Y., 900 F.2d 587, 598 (2d Cir. 1990)

(internal citations omitted) (quoting Keyishian v. Bd. of Regents, 385 U.S.

589, 603 (1967)).

Even so, “courts understandably have been hesitant to define the precise

contours of the First Amendment right to academic freedom.” Radolf, 364 F.

Supp. 2d at 215 (collecting cases). “The right to academic freedom is often

formulated as a right of a university or other academic institution to be free

from government interference with its curriculum and its decisions on who

may or may not teach or be admitted to study.” Id. at 216 (same).

Measured against this particular body of First Amendment law, Heim has

not marshaled evidence from which a reasonable jury could find in his favor

on this kind of § 1983 claim. To be sure, in some limited instances “courts

have acknowledged that an individual professor or student possesse[s] an

individual right to academic freedom.” Radolf, 364 F. Supp. 2d at 216; see

also Burt, 502 F.3d at 190–91 (summarizing instances in which this general

right to academic freedom can be implicated); but see Urofsky v. Gilmore, 216

F.3d 401, 410 (4th Cir. 2000) (concluding that this generalized right “inheres

in the University, not in individual professors”).

For instance, in Dube v. State University of New York, the Second Circuit

“upheld the right of a teacher, in a course on racism, to express the view that

Zionism was a form of racism . . . despite the offensiveness of the teacher’s

viewpoint to some students and some members of the community.” Vega v.

Miller, 273 F.3d 460, 467 (2d Cir. 2001) (explaining that “Dube serves as a

caution to governmental administrators not to discipline a college teacher for

expressing controversial, even offensive, views”).

However, as defendants correctly emphasize in their opening brief, Heim

does not claim that he was prohibited from, or even admonished for, teaching

or advocating for Keynesianism or Keynesian economic principles in any of

the various classes he taught and continues to teach at SUNY Albany. Nor

does he allege any interference from faculty or administrative personnel with

respect to his teaching methods, his publication of articles and books, or even

with his in- or out-of-classroom speech and advocacy.

In his opposition, Heim contends that this claim should not be dismissed

because defendant Daniel “removed” him from teaching an economics class on

large-scale macroeconomic modeling when she first became chair of the

economics department. Pl.’s Opp’n, Dkt. No. 73 at 26–27.8 Defendants reply

that this is a mischaracterization of the event. See Defs.’ Reply at 5. In their

view, plaintiff was not “removed” from teaching this course; instead, “[h]is

contract to teach the advanced level course was simply not renewed the

following year.” Id. (quoting Masters Decl., Dkt. No. 77-1 ¶ 30).

Even assuming for the purpose of summary judgment that defendant

Daniel in fact “removed” this class from Heim’s teaching load, no reasonable

jury could find in plaintiff’s favor on this claim. As an initial matter, both

parties seem to treat this claim as an afterthought. Plaintiff has not offered

evidence or argument about any of the relevant events that might be related

to this so-called “removal,” including such basic facts as when and under

what circumstances it occurred. See Pl.’s Opp’n at 26–27.

Notably, this “removal” also appears to have been an isolated change in

Heim’s teaching responsibilities. Plaintiff’s own affidavit indicates that,

outside of this singular incident, he taught and continues to teach “a full

course load” that is “equal to that of tenure-track faculty” at SUNY

Albany. See, e.g., Heim Aff. ¶ 11; see also Heim Dep. at 38:8–70:9 (describing

courses taught each semester during this time period).

8 Pagination corresponds to CM/ECF.

In other words, Heim remains able to teach classes on an equal basis with,

and without interference from, the rest of the economics department, which is

staffed with a group of DSGE adherents who are allegedly hostile to his

divergent theoretical approach. Without further evidence to substantiate this

claim, there is no basis on which a rational jury could conclude that plaintiff’s

general right to “academic freedom” has been violated. Cf. Amato v. Hartnett,

936 F. Supp. 2d 416, 433 (S.D.N.Y. 2013) (noting that “reductions in workload

or inferior or less desirable assignments can constitute adverse employment

actions where they impact a plaintiff’s opportunity for professional growth

and career advancement” but rejecting the plaintiff’s claim absent evidence

“aside from his own personal opinion” that being reassigned was “less

desirable”).

Besides, regardless of the appropriate characterization of this change in

Heim’s initial teaching responsibilities, any § 1983 claim on this basis would

certainly be time-barred. Although he blames defendant Daniel’s move to the

chair of the economics department for his “removal” from the course on

large-scale economic modeling, plaintiff’s own affidavit states that he only

taught this particular course during the “first semester” he was at SUNY

Albany, which by his own admission was in 2012. Heim Aff. ¶ 11. Because

plaintiff did not file this § 1983 action until 2018, a claim based on these facts

would run afoul of the three-year statute of limitations applicable to § 1983

claims in New York. See, e.g., Pearl v. City of Long Beach, 296 F.3d 76, 78 (2d

Cir. 2002). Accordingly, plaintiff’s § 1983 “academic freedom” claim must be

dismissed.

B. Retaliation

This leaves for consideration Heim’s § 1983 First Amendment claim that

defendants refused to consider him for the tenure-track faculty position

ultimately filled by Ben Griffy.9

Heim styles this as a retaliation claim. Pl.’s Opp’n at 13–26. “To state a

First Amendment retaliation claim, a plaintiff must establish that: (1) his

speech or conduct was protected by the First Amendment; (2) the defendant

took an adverse action against him; and (3) there was a causal connection

between this adverse action and the protected speech.” Cox v. Warwick

Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011) (citations omitted).

The parties’ dispute centers on the first element of this test. Defendants

argue that, under the Supreme Court’s decision in Garcetti v. Ceballos, 547

U.S. 410 (2006), a public employee’s speech does not enjoy First Amendment

protection unless he can show that (a) he spoke in the capacity of a “private

citizen” (b) on a matter of “public concern.” Defs.’ Mem. at 4–7.

9 Plaintiff did not apply for the earlier positions filled by Yue Li or Lewis Segal. To the extent

plaintiff contends that Daniel should not have discouraged him from applying (in the case of Yue Li’s

hiring) or that defendants followed an improper administrative process (in the case of Lewis Segal’s

hiring), those are not sufficiently adverse actions on which to sustain a § 1983 claim.

In opposition, Heim contends that Garcetti does not apply to faculty

speech rights in the academic context at a public university. See Pl.’s Opp’n

at 14–18. Instead, plaintiff argues, the more lenient “public concern”

analysis and balancing test established by the Supreme Court in Pickering v.

Board of Education, 391 U.S. 563 (1968), and refined in Connick v. Myers,

461 U.S. 138 (1983), should apply to his “speech.” Id.

In reply, defendants point out that even under Pickering and Connick, the

plaintiff must still make a threshold showing that the speech in question

addressed a matter of “public concern.” Defs.’ Reply at 6–7. According to

defendants, plaintiff’s speech and advocacy about Keynesianism and

Keynesian economic concepts was “apolitical.” Id. at 9.

As defendants explain, rather than “holding lectures or seminars on

corruption in the economy or abuses in government, the State, or SUNY” or

“holding a rally or debate to advocate the overthrow of the economic system

in our country,” Heim was merely engaged in researching and teaching about

“economic modeling” and “statistical analysis,” neither of which implicate

matters of broad public concern. Defs.’ Reply at 9.

1. Protected Speech or Expressive Conduct

First in Pickering and then again in Connick, the Supreme Court sought

to strike “a balance between the interests of the [employee], as a citizen, in

commenting upon matters of public concern and the interest of the State, as

an employer, in promoting the efficiency of the public services it performs

through its employees.” Connick, 461 U.S. at 140 (quoting Pickering, 391

U.S. at 568); see also Locurto v. Guiliani, 447 F.3d 159, 172 (2d Cir.

2006) (summarizing the pre-Garcetti analysis in the Second Circuit).

On the one hand, “[a] government employee does not relinquish all First

Amendment rights otherwise enjoyed by citizens just by reason of his or her

employment.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). “On the other

hand, a governmental employer may impose certain restraints on the speech

of its employees, restraints that would be unconstitutional if applied to the

general public.” Id.

Later, in Garcetti, the Supreme Court “narrowed the Court’s jurisprudence

in the area of employee speech by further restricting the speech activity that

is protected.” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 593

F.3d 196, 201 (2d Cir. 2010) (cleaned up). In particular, Garcetti held that

“when public employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First Amendment purposes,

and the Constitution does not insulate their communications from employer

discipline.” Garcetti, 746 F.3d at 421.

Importantly, though, Garcetti expressly declined to decide whether its

narrowing of First Amendment public-employee speech protections “would

apply in the same manner to a case involving speech related to scholarship or

teaching.” 547 U.S. at 425. This so-called “academic reservation” came in

response to a dissent from Justice Souter, who cautioned that a too-broad

reading of Garcetti’s holding might “imperil First Amendment protection of

academic freedom in public colleges and universities,” since teachers at these

public institutions “necessarily speak and write ‘pursuant to . . . official

duties.’” Id. at 438 (Souter, J., dissenting) (alteration in original).

Lower courts have relied on Garcetti’s “academic reservation” to reach

different results depending on the precise factual context and, just as

importantly, the status of the speaker. Compare Meriwether v. Hartop, 992

F.3d 492, 505 (6th Cir. 2012) (holding Garcetti inapplicable to college and

university professors engaged in “core academic functions, such as teaching

and scholarship”), with Evans-Marshall v. Bd. of Educ. of Tipp City Exempted

Vill. Sch. Dist., 624 F.3d 332, 334, 342–43 (6th Cir. 2010) (applying Garcetti

to conclude that “the First Amendment does not extend to the in-class

curricular speech of teachers in primary and secondary schools”).

The courts that have declined to apply Garcetti to academic speech by

public university professors have instead applied the less demanding “public

concern” analysis and balancing test established by the Supreme Court in

Pickering and refined in Connick. See, e.g., Demers v. Austin, 746 F.3d 402,

412 (9th Cir. 2014) (“Garcetti does not—indeed, consistent with the First

Amendment, cannot—apply to teaching and academic writing that are

performed ‘pursuant to the official duties’ of a teacher and professor.”).

Despite these developments elsewhere, the parties agree that our Circuit

has yet to squarely address the question. Bhattacharya v. SUNY Rockland

Cmty. Coll., 719 F. App’x 26 (2d Cir. 2017) (summary order) (noting Garcetti’s

“academic reservation” but distinguishing the claim of an adjunct public

university professor on factual grounds because his “speech involved neither

scholarship nor teaching”); Lee-Walker v. N.Y. City Dep’t of Educ., 712 F.

App’x 43, 45 (2d Cir. 2017) (summary order) (declining to reach public high

school teacher’s argument about “whether Garcetti in fact applies to speech

made by educators”).

Because the parties advocate in their briefing for different approaches, the

Court will analyze the first element of Heim’s § 1983 retaliation claim under

both rubrics: first, under Garcetti; and second, under Pickering and Connick.

i. Garcetti

Under Garcetti, public employees speak in their capacity as public

employees, and not private citizens, when they “make statements pursuant to

their official duties.” 547 U.S. at 421. “Restricting 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.” Id. at

421–22. Instead, “[i]t simply reflects the exercise of employer control over

what the employer itself has commissioned or created. Id. at 422.

In Weintraub, the Second Circuit explained that “[t]he objective inquiry

into whether a public employee spoke ‘pursuant to’ his or her official duties is

‘a practical one.’” Weintraub, 593 F.3d at 202 (quoting Garcetti, 547 U.S. at

424); see also Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012) (“The inquiry

into whether a public employee is speaking pursuant to her official duties is

not susceptible to a brightline rule.”).

To conduct this practical inquiry, “[c]ourts must examine the nature of the

plaintiff’s job responsibilities, the nature of the speech, and the relationship

between the two.” Ross, 693 F.3d at 306. “Other contextual factors, such as

whether the complaint was also conveyed to the public, may properly

influence a court’s decision.” Id. For example, speech may be considered

“pursuant to” an employee’s official responsibilities if it is “part-and-parcel of

[the employee’s] concerns about his ability to properly execute his

duties.” Weintraub, 593 F.3d at 203 (cleaned up). The same is true if the

speech in question lacks a “citizen analogue”; i.e., a “relevant analogue to

speech by citizens who are not government employees.” Id. at 203.

Importantly, though, “[f]ormal job descriptions often bear little

resemblance to the duties an employee actually is expected to perform, and

the listing of a given task in an employee’s written job description is neither

necessary nor sufficient to demonstrate that conducting the task is within the

scope of the employee’s professional duties for First Amendment

purposes.” Garcetti, 547 U.S. at 424–25 (rejecting “the suggestion that

employers can restrict employees’ rights by creating excessively broad job

descriptions”).

Likewise, “the mere fact that a citizen’s speech concerns information

acquired by virtue of his public employment does not transform that speech

into employee—rather than citizen—speech.” Lane v. Franks, 573 U.S. 228,

240 (2014). Instead, “[t]he critical question under Garcetti is whether the

speech at issue is itself ordinarily within the scope of an employee’s duties,

not whether it merely concerns those duties.” Id.

Upon review, the application of Garcetti to the facts of this case would

leave Heim’s “speech” unprotected as a matter of law. Even viewed in the

light most favorable to him, plaintiff’s evidence establishes that with one

exception for the large-scale economic modeling course mentioned supra, he

has been teaching the same basic course load since his first semester at

SUNY Albany in 2012. During that time, plaintiff has discussed Keynesian

economic principles in classroom settings, but that speech or expressive

conduct—delivering in-class instruction to enrolled students—would

unquestionably qualify as part of his “official duties” as an adjunct faculty

member in the economics department.

The same is true of Heim’s out-of-class speech and activity. As defendants

point out, plaintiff’s publication of various articles and books using Keynesian

analytical methods (such as Hicksian IS-LM statistical analysis) would also

fall comfortably within Garcetti’s “official duties” analysis. Academic writing

and research on matters related to a field of study in which the teacher is

employed fall well within the “official duties” of a public university professor.

Although Heim contends that his publication activities10 “were hardly

compelled by his teaching position at SUNY” and argues that his job position

“contains no requirement that he publish anything at all,” Pl.’s Opp’n at 16,

the Second Circuit has applied Garcetti to hold that speech can still be

considered “pursuant to” an employee’s official duties “even though it is not

required by, or included in, the employee’s job description or in response to a

request by the employer.” Weintraub, 593 F.3d at 203.

In short, the evidence conclusively establishes that Heim’s in-class speech

and instruction, as well as his various out-of-class writings on Keynesian

economic concepts, all of which occurred during his employment as a

professor in an economics department where he lectured on a range of

economic concepts, occurred “pursuant to” his official duties at SUNY

10 For instance, Heim emphasizes that his books were published by an outside academic

publisher. Pl.’s Opp’n at 17. But he also acknowledges that these books were publicized by SUNY

Albany and that at least one of them was “listed in a University at Albany Celebration of

Scholarship on May 1, 2018.” Heim Aff. ¶ 14.

Albany. Accordingly, plaintiff’s § 1983 First Amendment retaliation claim is

subject to dismissal on this basis.

ii. Pickering and Connick

Heim disputes the applicability of Garcetti. Instead, plaintiff points to

decisions from other Circuits—such as the Ninth Circuit’s decision in Demers

v. Austin—that have relied on Garcetti’s “academic reservation” language to

distinguish Garcetti from, or hold Garcetti inapplicable to, fact patterns that

involve teaching and academic writing by a public academic employee. Pl.’s

Opp’n at 16–19. Although this speech or expressive conduct may have been

undertaken pursuant to the employee’s “official duties,” these courts apply

the “public concern” analysis and balancing test from Pickering and Connick.

Under Pickering and Connick, public employees enjoy First Amendment

protections when they speak on a matter of “public concern.” Connick, 461

U.S. at 146. “Whether speech is on a matter of public concern is a question of

law, and is to be answered by the court after examining the content, form,

and context of a given statement, as revealed by the whole record.” Montero

v. City of Yonkers, 890 F.3d 386, 399 (2d Cir. 2018) (cleaned up).

Generally speaking, “[s]peech involves matters of public concern when it

can be fairly considered as relating to any matter of political, social, or other

concern to the community, or when it is a subject of legitimate news interest;

that is, a subject of general interest and of value and concern to the

public.” Lane, 573 U.S. at 241 (cleaned up) (quoting Snyder v. Phelps, 562

U.S. 443, 453 (2011)). However, “speech that principally focuses on an issue

that is personal in nature and generally related to the speaker’s own

situation or that is calculated to redress personal grievances—even if

touching on a matter of general importance—does not qualify for First

Amendment protection.” Montero, 890 F.3d at 399–400 (cleaned up).

Defendants contend that Heim’s “publication of two books and his

authorship of approximately 60 articles, books, and reports” only discuss

“economic principles[;] [t]hey do not discuss issues of public concern or [of]

legitimate news interest.” Defs.’ Mem. at 6. According to defendants,

plaintiff’s publication and sale of textbooks outside of his duties at SUNY

Albany do not change this analysis because “this conduct was taken for

personal, financial gain.” Id. at 7.

In opposition, Heim concedes that he “received some remuneration for his

books” but argues that “[t]here is no evidence that [financial gain] was his

primary purpose in writing the books” because, inter alia, “[t]he subject

matter of his books was highly unlikely to put them on the New York Times

bestseller list, as their scope was of interest to those engaged in academic

discussion of economics . . . or governmental officials engaged in economic

forecasting.” Pl.’s Opp’n at 18.

Heim further argues that his “writings eminently relate to a matter of

public concern.” Pl.’s Opp’n at 20. According to him, “[w]hether Keynesian or

DSGE economics correctly reflect the world is an essential matter of public

concern that is constantly a matter of public debate.” Id. As plaintiff

explains, “[w]hich theory is employed substantially affects the ability of

government to design policy to produce an economy that benefits the public in

their everyday lives.” Id.

Upon review, Heim’s speech would also be unprotected as a matter of law

under Pickering’s “public concern” analysis. “As a general rule, a lawsuit is

more likely to implicate a matter of public concern if it addresses ‘pervasive

or systemic misconduct’ by public officials than if it alleges isolated instances

of misfeasance.” Milardo v. Town of Westbrook, 120 F. Supp. 3d 206, 217 (D.

Conn. 2015) (quoting Huth v. Haslun, 598 F.3d 70, 75 (2d Cir. 2010)). “So too

if it appears that the suit is ‘part of an overall . . . effort to correct allegedly

unlawful practices or bring them to public attention’ rather than a mere

endeavor to obtain relief ‘of a personal nature.’” Id. (quoting Saulpaugh v.

Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993)).

Heim attempts to characterize his speech and writing about Keynesian

economic principles as being a selfless attempt to ensure that the economic

theories used by our political leadership accurately reflect reality.11 See, e.g.,

Pl.’s Opp’n at 20. And to be sure, the motivation behind a public employee’s

speech is an appropriate factor to be considered in the “public concern”

analysis. See, e.g., Montero, 890 F.3d at 400.

However, “a speaker’s motive is not dispositive in determining whether his

or her speech addresses a matter of public concern.” Sousa v. Roque, 578

F.3d 164, 173 (2d Cir. 2009); cf. Nagle v. Marron, 663 F.3d 100, 107 (2d Cir.

2011) (“[T]he primary question for First Amendment purposes is whether the

matter is of public concern, not whether the speech was also made to serve

some private interest.”).

Even viewed in the light most favorable to him, a review of the “content,

form, and context” of Heim’s teaching and academic writing establishes that

it is not the “subject of general interest . . . and concern to the public.” Lane,

573 U.S. at 241 (emphasis added). By plaintiff’s own admission, his books

and other writings on the question of “[w]hether Keynesian or DSGE

economics correctly reflect the world” are written to a specific, narrow

audience: policy wonks “engaged in academic discussion of economics” and

“government officials engaged in economic forecasting.” See Pl.’s Opp’n at

11 The Second Circuit has opined that “discussion regarding current government policies and

activities is ‘perhaps the paradigmatic “matter[ ] of public concern.’” Harman v. City of N.Y., 140

F.3d 111, 118 (2d Cir. 1998) (quoting Sanjour v. Env’t Prot. Agency, 56 F.3d 85, 91 (D.C. Cir. 1995)

(in banc)).

18. And while it is not a dispositive factor, plaintiff has also enjoyed a direct,

personal stake in this extra-curricular speech: monetary payments in

exchange for publication. Id.

In short, Heim’s academic writings about Keynesian economic concepts,

which concern complex statistical modeling intended for consumption by a

relatively narrow audience, do not qualify as speech on matters of “public

concern.” Accordingly, plaintiff’s § 1983 First Amendment retaliation claim

is subject to dismissal on this basis even if Garcetti does not apply.

2. Adverse Action

The second element of Heim’s § 1983 retaliation claim requires him to

establish that defendants took an “adverse action” against him. The parties

do not belabor this point in their briefing, but as discussed supra, plaintiff

has offered up a laundry list of possible “speech” related to his advocacy for

Keynesianism—and the accompanying slights from faculty members who

advocate for DSGE—stretching back to the very beginning of his time at

SUNY Albany in 2012. Because most of these facts do not amount to

“adverse action,” it is useful to take a moment to clarify what actually

qualifies for the purpose of a First Amendment analysis.

“[T]he proper legal test in determining whether an employment action is

adverse in First Amendment retaliation cases is whether the alleged acts

‘would deter a similarly situated individual of ordinary firmness from

exercising his or her constitutional rights.’” Dillon v. Morano, 497 F.3d 247,

254 (2d Cir. 2007) (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225

(2d Cir. 2006)).

“In the First Amendment retaliation context, ‘[a]dverse employment

actions include discharge, demotion, refusal to hire, refusal to promote, and

reprimand.’” Fotopoulous v. Bd. of Fire Comm’rs of Hicksville Fire Dist., 11

F. Supp. 3d 348, 364–65 (E.D.N.Y. 2014) (quoting Kaluczky v. City of White

Plains, 57 F.3d 202, 208 (2d Cir. 1995)). Likewise, “a combination of

seemingly minor incidents [may also] form the basis of a constitutional

retaliation claim once they reach a critical mass.” Phillips v. Bowen, 278 F.3d

103, 109 (2d Cir. 2002) (citation omitted).

As the Second Circuit has explained:

[T]o prove a First Amendment retaliation claim in a

situation other than the classic examples of

termination, refusal to hire or promote, demotion,

reduction in pay, and reprimand, a plaintiff must show

that (1) using an objective standard; (2) the total

circumstances of her working environment changed to

become unreasonably inferior and adverse when

compared to a typical or normal, not ideal or model,

workplace.

Amato, 936 F. Supp. 2d at 433 (citation omitted).

Upon review, defendants’ refusal to promote Heim to the tenure-track

faculty position filled by Ben Griffy (for which he was refused an interview in

December of 2017) qualifies as an “adverse action” for the purpose of this

analysis. However, as explained supra, plaintiff did not apply for the earlier

positions that were filled by Yue Li and Lewis Segal. To the extent plaintiff

contends that Daniel should not have discouraged him from applying (in the

case of Yue Li’s hiring) or that defendants followed an improper internal or

administrative process (in the case of Lewis Segal’s hiring), those are not

sufficiently adverse actions on which to sustain a § 1983 claim.12

3. Causation

The third element of Heim’s § 1983 retaliation claim requires him to

establish a causal relationship between the “adverse action”; i.e., defendants’

refusal in late December of 2017 to interview or hire him for the tenure-track

faculty position filled by Ben Griffy, and his protected speech; i.e., his

teaching and academic writing about Keynesian economic concepts.

To demonstrate causation, “a plaintiff must show that the protected

speech was a substantial motivating factor in the adverse employment

action.” Smith v. Cty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (quoting

Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.

2006)). “A plaintiff may establish causation either directly through a

showing of retaliatory animus, or indirectly through a showing that the

12 Although these events are not separately actionable under § 1983, they remain relevant as

background evidence in support of Heim’s claim. The same is true of his alleged “removal” from

large-scale economic modeling after his first semester of teaching at SUNY Albany.

protected activity was followed closely by adverse action.” Id. (citing Cobb v.

Pozzi, 363 F.3d 89, 108 (2d Cir. 2004)).

As an initial matter, analysis of this element is made more difficult by the

fact that Heim takes such a sweeping approach to his claim. By his own

account, plaintiff has been employed by SUNY Albany since 2012. He has

been teaching and writing on Keynesian economic concepts for that entire

duration. There is no question that his fellow faculty members, including

Daniel and Masters, have been aware of his viewpoints on economic theory

from almost the very beginning of this time period, if not even longer.

Although Heim complains that Daniel “discouraged” him from applying to

a position in 2013 and accuses defendants of violating their own internal

policies in connection with a hire they made in 2016, plaintiff did not actually

apply to either of these jobs. And aside from being refused the promotion in

2017, plaintiff concedes defendants have not otherwise interfered with his

teaching or academic writing, whether in class or outside of it. In short, as

defendants point out, plaintiff has not really tied the particular alleged

“adverse action” to “any particular lecture, conversations, public statement,

or publication.” Defs.’ Reply at 12.

Nevertheless, viewed in the light most favorable to him, Heim has

established that faculty members, including defendants Daniel and Masters,

disagreed with his Keynesian approach, believed it to be of lesser value than

DSGE, and were even “hostile” to his academic work. Accordingly, plaintiff

has identified sufficient evidence from which a rational fact finder might

conclude that defendants’ hostility to his “speech” was a “substantial

motivating factor” in their refusal to promote him to the 2017 opening.

Even so, Heim’s § 1983 claim must be dismissed because there is

overwhelming evidence that defendants’ refusal to promote him was also

motivated by legitimate pedagogical concerns. Where, as here, “the plaintiff

makes out a prima facie retaliation claim, a government defendant may still

receive summary judgment if it establishes its entitlement to a relevant

defense.” Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011).

As relevant here, in Mount Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), the Supreme Court established a

burden-shifting framework in which a defendant-employer “may escape

liability [ ] by proving by a preponderance of the evidence that the same

employment action would have been taken absent the protected

conduct.” Coogan v. Smyers, 134 F.3d 479, 484 (2d Cir. 1998).

In Mt. Healthy, the Court explained that “[t]he constitutional principle at

stake is sufficiently vindicated if [the] employee is placed in no worse a

position than if he had not engaged in the conduct.” 429 U.S. at 285–86. In

other words, “even if retaliation might have been a substantial motive for the

[employer’s] action, . . . there was no liability unless the alleged constitutional

violation was a but-for cause of the [adverse action].” Lozman v. City of

Riviera Beach, 138 S. Ct. 1945, 1952 (2018).

Importantly, “[t]he burden is on the [defendant-employer] to make out the

[same decision] defense.” Anemone, 629 F.3d at 115 (citation omitted); see

also Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (explaining Mt.

Healthy’s burden-shifting framework in context of a First Amendment

“political discrimination” claim). However, “[s]ince courts do not themselves

weigh evidence at the summary judgment stage, this standard requires us to

determine whether any reasonable trier of fact would have to conclude that

the evidence was so strongly in the defendant’s favor that there remained no

genuine issue of material fact for it to resolve.” Nagle v. Marron, 663 F.3d

100, 105 (2d Cir. 2011).

Upon review, the application of Mt. Healthy’s same-decision defense

requires dismissal of Heim’s claim on summary judgment. Even viewed in

the light most favorable to him, the evidence establishes that a reasonable

jury would be compelled to conclude that defendants would not have

promoted plaintiff to the position ultimately filled by Ben Griffy regardless of

plaintiff’s protected speech. Cf. Gonzalez v. City of N.Y., 442 F. Supp. 3d 665,

697–98 (S.D.N.Y. 2020) (granting summary judgment to defendant-employer

on same-decision defense where employer “provided ample justification” for

its refusal to interview the plaintiff).

As Masters summarized in his e-mail to Heim, there is substantial

evidence in the record that demonstrates the SUNY Albany hiring committee

was seeking someone (1) with a desire to “teach and train students” to

conduct DSGE macroeconomics: (2) who stood a good chance of making

tenure, which required publication in a certain set of journals13; and (3) who

shared a DSGE research agenda that would permit constructive collaboration

with other faculty members in the department. Although plaintiff disputes

some or all of this selection criteria as wrong-headed or misguided, there can

be no doubt that a public university’s search committee enjoys latitude to

make promotional decisions on these educational bases.

In reaching this conclusion, it bears emphasizing that the Supreme Court

has repeatedly cautioned about the danger of constitutionalizing tenure-track

faculty hiring decisions, which are made by specialists in the relevant field of

study on behalf of institutions with First Amendment interests of their

own. Cf. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter,

J., concurring) (“It is the business of a university . . . . to determine for itself

on academic grounds who may teach, what may be taught, how it shall be

taught, and who may be admitted to study.”).

13 The parties dispute whether or not plaintiff published in “top” journals. But that is beside

the point, since a tenure committee is entitled to decide for itself which journals it prefers.

Those countervailing interests necessarily include the freedom to make

subjective value judgments about what kind of economic theory should be

taught to public university students. See, e.g., Bickerstaff v. Vassar Coll., 196

F.3d 435, 455 n.7 (2d Cir. 1999) (“Determinations about such matters as

teaching ability, research scholarship, and professional stature are

subjective, and unless they can be shown to have been used as the

mechanism to obscure discrimination, they must be left for evaluation by the

professionals, since they often involve inquiry into aspects of arcane

scholarship beyond the competence of individual judges.” (citation

omitted)). Accordingly, plaintiff’s claim is subject to dismissal on this basis

as well.14

C. Limited Public Forum

In a final attempt to save his § 1983 claim, Heim contends that “the

position of a university professor” should be analyzed as “a limited public

forum and afford such position the same viewpoint protection.” Pl.’s Opp’n at

22–24. “The government discriminates against viewpoints when it disfavors

certain speech because of ‘the specific motivating ideology or the opinion or

perspective of the speaker.’” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 31

14 Because this claim fails on the merits, it is unnecessary to address qualified

immunity. However, given the substantial uncertainty in this area of First Amendment law the

doctrine almost certainly applies to defendants’ conduct in this case.

(2d Cir. 2018) (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 828 (1995)).

Of course, “forums” are places, not people. So the “forum” analysis

advanced by plaintiff would have to be related to his speech in a SUNY

classroom or campus lecture hall rather than the considerably more abstract

notion of “the position of a university professor.” However, even assuming

that university professors are entitled to viewpoint protection under a forum

analysis, there is no evidence from which to conclude that either defendant

took any action to restrict or censor plaintiff’s speech or activities in those

settings or anywhere else. Indeed, plaintiff remains employed by SUNY

Albany as a professor in the economics department. Accordingly, this claim

must be dismissed.15

V. CONCLUSION

Because Heim has failed to marshal evidence from which a rational jury

could find in his favor, his remaining § 1983 claim must be dismissed.

Therefore, it is

ORDERED that

1. The Clerk of the Court is directed to terminate Havidan Rodriguez,

University at Albany, and The State University of New York as defendants;

15 Given the apparent novelty of this claim, there is no question that qualified immunity would

shield the individual defendants in this action.

2. Defendants’ motion for summary judgment is GRANTED; and

3. Plaintiffs amended complaint is DISMISSED.

The Clerk of the Court is directed to terminate any pending motions and

enter a judgment accordingly.

IT IS SO ORDERED.

Dated: May 10, 2022 OS. Diskct Judge

Utica, New York.

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