Jensen v. Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARS JENSEN, Doctor, No. 23-2545

D.C. No.

Plaintiff - Appellant,

3:22-cv-00045-

LRH-CLB

v.

NATALIE BROWN, Doctor; ANNE

FLESHER; KARIN HILGERSOM, OPINION

Doctor; MARIE MURGOLO;

MELODY ROSE, Doctor,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted November 4, 2024

Phoenix, Arizona

Filed March 10, 2025

Before: Richard A. Paez, Marsha S. Berzon, and John B.

Owens, Circuit Judges.

Opinion by Judge Berzon

2 JENSEN V. BROWN

SUMMARY *

First Amendment Retaliation

The panel reversed the district court’s dismissal of an

action brought by Lars Jensen, a math professor at Truckee

Meadows Community College, alleging that Truckee

Meadows Community College and Nevada System of

Higher Education administrators (the “Administrators”)

retaliated against him and violated his due process and equal

protection rights after he voiced concerns about a policy

change to the math curriculum standards.

The panel held that the district court erroneously

dismissed Jensen’s First Amendment retaliation claim for

damages against the Administrators in their personal

capacities. Jensen pleaded a First Amendment violation

because (1) Jensen’s criticism of the changes in the college

mathematics curriculum addressed a matter of public

concern; (2) the speech, related to scholarship or teaching,

was not barred from First Amendment protection even if

Jensen spoke pursuant to his official duties; (3) Jensen

sufficiently alleged that the adverse employment actions

were motivated, at least in part, by his speech; and (4) the

Administrators had not made a showing of an “actual,

material and substantial disruption” or “reasonable

predictions of disruption” to support their claim that the

state’s interest outweighed Jensen’s. The Administrators

were not entitled to qualified immunity because it was

clearly established at the time that a professor has a right to

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

JENSEN V. BROWN 3

speak about a school’s curriculum without being

reprimanded, given negative performance reviews, and put

through an investigation and termination hearing.

The panel held that Jensen’s First Amendment claim

against the Administrators in their official capacities was not

barred by Eleventh Amendment sovereign immunity

because Jensen sought prospective relief in the form of

(1) an injunction to expunge negative records from his file

and to end the Administrators’ custom and practice of

retaliatory actions, and (2) a declaratory judgment that such

retaliation violates the First Amendment.

The panel held that Jensen did not identify an interest

that could form the basis of a procedural due process claim

and that his equal protection claim failed because he had not

alleged he belonged to a discrete class. Nevertheless, the

district court abused its discretion in denying Jensen leave to

amend these claims without explanation. The panel

therefore reversed and remanded so that Jensen may have the

opportunity again to seek leave to amend these claims.

COUNSEL

Daniel Ortner (argued), Becket Fund for Religious Liberty,

Washington, D.C.; Joshua Bleisch and Joshua House,

Foundation for Individual Rights and Expression,

Washington, D.C.; Michael E. Langton, Law Office of

Michael E. Langton, Reno, Nevada; John M. Nolan,

University of Nevada Reno, Management Department

College of Business, Reno, Nevada; Mark Mausert and Sean

McDowell, Law Offices of Mark Mausert, Reno, Nevada;

for Plaintiff-Appellant.

4 JENSEN V. BROWN

Kiah D. Beverly-Graham (argued), Truckee Meadows

Community College, Reno, Nevada, for Defendants-

Appellees.

Luke A. Busby, Luke Andrew Busby Ltd, Reno, Nevada;

Risa Lieberwitz, Aaron Nisenson, and Edward Swidriski,

American Association of University Professors,

Washington, D.C.; for Amici Curiae American Association

of University Professors and Nevada Faculty Alliance.

OPINION

BERZON, Circuit Judge:

Plaintiff Lars Jensen, a math professor at a Nevada

community college, voiced concerns about a policy change

that he argues caused the math department to lower its

curriculum standards. He alleges that soon after, Jensen was

reprimanded, pressured to resign from another faculty

member’s tenure committee, given two consecutive negative

performance reviews, and required to undergo an

investigation and termination hearing. Our question is

whether Jensen has pleaded plausible First Amendment, due

process, and equal protection violations arising from these

events.

We conclude that the district court erroneously

dismissed Jensen’s First Amendment retaliation claims. We

further conclude that Jensen did not adequately plead due

process and equal protection claims, but the district court

abused its discretion in denying Jensen leave to amend.

Accordingly, we reverse and remand.

JENSEN V. BROWN 5

I. Background

A. Factual Background 1

Plaintiff Lars Jensen is a mathematics professor at

Truckee Meadows Community College (“TMCC”). TMCC

is part of the Nevada System of Higher Education

(“NSHE”).

In June of 2019, the Board of Regents for the NSHE

adopted a new “co-requisite policy.” Under the co-requisite

policy, students would be placed in college level math

classes even if they needed remedial math instruction.

Students who needed remedial math instruction would be

required to take remedial classes as “co-requisites”

alongside college level classes, instead of as “pre-requisites”

before taking college level math courses. To maintain course

completion rates under this policy, TMCC’s math

department decided to lower the academic level of certain

math classes. On December 18, 2019, Jensen sent an email

to the math department faculty in which he expressed

concerns about the department’s new standards for

coursework.

On January 21, 2020, Julie Ellsworth, the Dean of

Sciences at TMCC, facilitated a “Math Summit” to discuss

the co-requisite policy’s implementation “with the

community.” During a question-and-answer session

following a presentation from Ellsworth, Jensen attempted

1

Because this appeal arises from the grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), we accept as true the

allegations of Jensen’s first amended complaint. See Metzler Inv. GMBH

v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). Our

review “is limited to the complaint, materials incorporated into the

complaint by reference, and matters of which the court may take judicial

notice.” Id.

6 JENSEN V. BROWN

to comment on the co-requisite policy. Ellsworth cut him off

and announced that the question-and-answer session had

ended. After Jensen again attempted to speak, Ellsworth

directed him to the “parking lot,” a whiteboard that was

provided for Math Summit participants to post comments.

Jensen then went to his office and created a handout,

titled “On the Math Pathways – Looking Under the Hood,”

which discussed his concerns with the new co-requisite

policy. 2 The one-page document criticized the fact that the

math department, in response to the policy, decided to

“lower the academic level of Math 120 so students will be

able to complete the course at current rates.” Jensen argued

that this curriculum change would impact “31% of

[TMCC’s] degree[] and certificate programs by lowering the

math[] and technical skills of graduates in these programs.”

He concluded by discussing the impact on the community,

noting that local employers subsidize TMCC through tax

revenue and expect in return to be able to hire qualified

graduates.

Jensen returned to the Math Summit with copies of the

handout. During a break in the Summit’s programming, he

went room to room distributing his handout to the

participants. When he began passing out his handout in

Ellsworth’s room, she picked up the copies he had

distributed and motioned for the participants in the room to

pass their handout copies to her. Jensen reminded Ellsworth

that it was break time and that he was not being disruptive

or disturbing anyone, but Ellsworth again instructed Jensen

2

The handout’s contents are properly before us because the handout was

attached as an exhibit to Jensen’s complaint. See Fed. R. Civ. P. 10(c)

(“A copy of a written instrument that is an exhibit to a pleading is a part

of the pleading for all purposes.”).

JENSEN V. BROWN 7

not to distribute the handout. Jensen then distributed his

handout to two other rooms of Summit participants. When

he returned to Ellsworth’s room and attempted to

disseminate his handout again, she directed him to stop. The

pair went into the hallway to talk, and Ellsworth again told

Jensen that he could not circulate his handout. During this

conversation, she accused him of “disobeying her” and being

a “bully,” stated that his conduct was “disruptive,” and

warned him that he had “made an error by defying her.”

True to her word, one week after the Math Summit

Ellsworth sent Jensen a letter of notice of reprimand along

with a proposed letter of reprimand addressing Jensen’s

“insubordination” at the event. An official letter of

reprimand was sent and placed in Jensen’s personnel file on

March 30, 2020.

Shortly after receiving the notice of reprimand, Jensen

sent an email to the entire TMCC faculty related to the co-

requisite policy. The email, titled “Lowering Standards is

Criminal – Literally,” argued that the faculty was failing to

maintain certain instructional standards required by the

NSHE Handbook.

About a week after sending this email, Jensen, after

pressure from Ellsworth, resigned as chair and member of

another professor’s tenure committee. Ellsworth then began

to raise issues with Jensen’s syllabus policies, which she

characterized as “punitive.” These course policies mirrored

those that had been used for years by other professors in the

math department, none of whom Ellsworth similarly

reprimanded.

During the 2019-2020 annual performance evaluations

conducted in May 2020, the department chair recommended

that Jensen be rated “excellent 2.” Ellsworth scored Jensen’s

8 JENSEN V. BROWN

performance as “unsatisfactory,” the lowest possible rating.

In the evaluation, Ellsworth wrote, “Professor Jensen

exhibited insubordination in two instances, one which is

documented in relationship to the Math Summit and is on

record in HR, and the other one in regard to the requested

alteration of a course syllabus.”

During the following year’s annual performance

evaluation, the department chair recommended that Jensen

be scored “excellent.” Anne Flesher, the Dean of Math and

Physical Sciences at TMCC, rated Jensen “unsatisfactory.”

Flesher had attended the Math Summit and had criticized

Jensen during the event. To justify the “unsatisfactory”

rating, Flesher identified minor issues with Jensen’s

performance, based on criteria that Jensen asserts were not

equally applied to other faculty.

Following that evaluation, Flesher informed TMCC

President Karin Hilgersom that Jensen had received two

consecutive “unsatisfactory” annual performance

evaluations. Under the NSHE Handbook, receiving two

consecutive “unsatisfactory” rankings automatically triggers

a disciplinary hearing to determine if the faculty member

should be terminated. Hilgersom appointed Natalie Brown,

a TMCC administrator, to investigate Jensen before the

hearing. A termination hearing was then held. Jensen takes

issue with numerous aspects of the investigation and

hearing, which he contends did not conform to the

procedures set out in the NSHE Handbook. 3 Jensen does not

3

The allegations include that TMCC lacked the authority to investigate

Jensen, that the individual initially appointed to preside over the hearing

was biased, that one of the hearing committee members was biased, and

that Jensen was denied subpoenas to obtain certain records and

witnesses.

JENSEN V. BROWN 9

allege that he was terminated or that any other discipline

resulted from the hearing.

B. Procedural History

Jensen then instigated the present action against various

TMCC and NSHE administrators (“the Administrators”),

alleging (1) First Amendment retaliation, (2) procedural due

process violations, and (3) equal protection violations. 4 His

First Amendment retaliation claim was brought against the

Administrators in their personal and official capacities. The

due process and equal protection claims were brought

against the Administrators in their personal capacities only. 5

The Administrators moved to dismiss Jensen’s first

amended complaint, arguing that his official capacity claim

was barred by sovereign immunity and his personal capacity

claims by qualified immunity. The district court granted the

motion and dismissed Jensen’s claims with prejudice,

denying Jensen leave to amend. Jensen now appeals the

district court’s dismissal.

II. Discussion

A. Personal Capacity First Amendment Claim

We turn first to Jensen’s First Amendment retaliation

claim for damages against the Administrators in their

personal capacities. A public official sued for damages in

4

Jensen also brought claims under the Nevada Constitution. The district

court did not consider the merits of the state law claims but dismissed

them without prejudice on sovereign immunity and pendant jurisdiction

grounds. Jensen has not appealed the dismissal of the state claims.

5

Jensen’s due process claim was brought only against Brown,

Hilgersom, and Flesher. His other claims were brought against all of the

Administrators.

10 JENSEN V. BROWN

their individual capacity is entitled to qualified immunity

unless (1) “the facts alleged, taken in the light most

favorable to the party asserting the injury, show that the

official’s conduct violated a constitutional right” and (2) the

right at issue “was clearly established ‘in light of the specific

context of the case’” at the time of the alleged misconduct.

Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100 (9th

Cir. 2011) (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)).

Ordinarily, courts may decide these issues sequentially

or not, depending on the circumstances. See Pearson v.

Callahan, 555 U.S. 223, 236-39 (2009); Olson v. County of

Grant, 127 F.4th 1193, 1203 (9th Cir. 2025); Horton ex rel.

Horton v. City of Santa Maria, 915 F.3d 592, 599-602 (9th

Cir. 2019). But in this instance, the merits of the First

Amendment claim need to be decided for purposes of the

official capacity prospective relief sought. See infra pp. 30-

37. And as we ultimately conclude that the Administrators

did violate clearly established law, see infra pp. 25-30, we

must address the merits of the constitutional issue for that

reason as well. So we assess first whether Jensen has pleaded

a First Amendment violation.

i. Underlying Constitutional Violation

“The First Amendment shields public employees from

employment retaliation for their protected speech activities.”

Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th

Cir. 2012). Where a public employer retaliates against an

employee for workplace-related speech, the First

Amendment requires “balanc[ing] . . . the interests of the

[public 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

JENSEN V. BROWN 11

it performs through its employees.” Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968). We have distilled

Pickering and its progeny into a five-part inquiry:

(1) whether the plaintiff spoke on a matter of

public concern; (2) whether the plaintiff

spoke as a private citizen or public employee;

(3) whether the plaintiff's protected speech

was a substantial or motivating factor in the

adverse employment action; (4) whether the

state had an adequate justification for treating

the employee differently from other members

of the general public; and (5) whether the

state would have taken the adverse

employment action even absent the protected

speech.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Only

the first four prongs are at issue here. 6

a. Matter of Public Concern

To be covered under the Pickering doctrine, Jensen’s

speech must have been on a matter of public concern. See

Eng, 552 F.3d at 1070. “Speech involves a matter of public

concern when it can fairly be considered to relate to ‘any

matter of political, social, or other concern to the

community.’” Johnson v. Multnomah Cnty., 48 F.3d 420,

6

On appeal the Administrators briefly touch on the fifth prong by

asserting that Jensen did not plausibly allege that the Administrators

would not have taken disciplinary action but for his speech. The

Administrators, not Jensen, had the burden on that prong. See Eng, 552

F.3d at 1072. Additionally, the Administrators did not raise this

argument before the district court and so forfeited it. See Cmty. House,

Inc. v. City of Boise, 490 F.3d 1041, 1053 (9th Cir. 2007).

12 JENSEN V. BROWN

422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S.

138, 146 (1983)). “Even if only ‘a relatively small segment

of the general public’ might have been interested in the

subject of [the speech], that is sufficient.” Hernandez v. City

of Phoenix, 43 F.4th 966, 978 (9th Cir. 2022) (citation

omitted). In contrast, “individual personnel disputes and

grievances . . . of no relevance to the public’s evaluation of

the performance of governmental agencies” are not matters

of public concern. McKinley v. City of Eloy, 705 F.2d 1110,

1114 (9th Cir. 1983).

“Whether an employee’s speech addresses a matter of

public concern must be determined by the content, form, and

context of a given statement, as revealed by the whole

record.” Connick, 461 U.S. at 147-48. “Of these, content is

the most important factor.” Demers v. Austin, 746 F.3d 402,

415 (9th Cir. 2014). “We adhere to a liberal construction of

what an issue ‘of public concern’ is under the First

Amendment.” Roe v. City of San Francisco, 109 F.3d 578,

586 (9th Cir. 1997).

Jensen’s criticism of the changes in TMCC’s

mathematics curriculum addressed a matter of public

concern. “[T]he preferable manner of operating [a] school

system . . . clearly concerns an issue of general public

interest.” Pickering, 391 U.S. at 571. The handout Jensen

distributed at the Math Summit spoke to the preferable

manner of operating TMCC, specifically its math

department. Jensen described how the math department’s

lowered standards would impact almost a third of TMCC’s

degree and certificate programs and how graduates would

consequently have inadequate math and technical skills

when entering the job market. Jensen also grounded his

criticism in the effect these lower standards would have on

the community, noting that employers in the surrounding

JENSEN V. BROWN 13

area subsidize TMCC through their taxes and expect

competent graduates in return. The decline of TMCC’s

educational standards and the resulting impact on the

community is a matter of public concern.

Any doubt in this regard is resolved by the similarities

between Jensen’s handout and the speech at issue in Demers.

David Demers, a professor at the Edward R. Murrow

College of Communication at Washington State University,

distributed a pamphlet opining on an ongoing controversy

over whether to separate the school’s Mass Communications

faculty, “which had a professional and practical orientation,”

from the Communications Studies faculty, “which had a

more traditional academic orientation.” Demers, 746 F.3d at

407. Demers’s pamphlet contained a plan for separating the

two faculties and recommended other changes that would

strengthen the Mass Communications department and its

practical focus. Id. We concluded that the pamphlet spoke

on a matter of public concern, as it addressed “broad

proposals to change the direction and focus of the School.”

Id. at 416.

In criticizing the recent curriculum changes, Jensen

similarly addressed the “the direction and focus” of TMCC.

Id. Moreover, like the Demers pamphlet, Jensen’s handout

“did not focus on a personnel issue or internal dispute of no

interest to anyone outside a narrow ‘bureaucratic niche.’” Id.

(quoting Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210

(9th Cir. 1996)). “Nor did the [handout] address the role of

particular individuals in [TMCC], or voice personal

complaints.” Id. Instead, it focused on the effect that the

math curriculum changes would have on students and on the

broader community.

14 JENSEN V. BROWN

The Administrators contend that Jensen’s handout was

distributed less widely than the pamphlet in Demers. Demers

posted his pamphlet to his website and sent it to alumni,

friends, and newspapers, as well as other faculty members,

id.; Jensen circulated his handout at the Math Summit, which

was open to the “community.” The parties dispute whether

the “community” included members of the public or was

limited to individuals affiliated with TMCC. Either way, the

same result follows.

“If an employee expresses a grievance to a limited

audience, such circulation can suggest a lack of public

concern.” Id. “But limited circulation is not, in itself,

determinative.” Id. “The form of the speech—complaints to

staff and superiors rather than to the general public—does

not remove it from the realm of public concern.”

Chateaubriand v. Gaspard, 97 F.3d 1218, 1223 (9th Cir.

1996). In Rankin v. McPherson, for example, a public

employee’s remark about a presidential assassination

attempt made to only the employee’s co-worker addressed a

matter of public concern. 483 U.S. 378, 381-82, 385-87

(1987). Similarly, Anthoine v. North Central Counties

Consortium held that speech made only to the chairman of

the governing board of the plaintiff’s employer addressed a

matter of public concern. 605 F.3d 740, 749 (9th Cir. 2010).

Although the audience to whom a public employee’s speech

is addressed may be instructive “[i]n a close case, when the

subject matter of a statement is only marginally related to

issues of public concern,” Johnson, 48 F.3d at 425, the

nature of Jensen’s speech does not present a close question.

As a result, the scope of Jensen’s handout distribution does

not affect our conclusion that Jensen has plausibly alleged

that he spoke on a matter of public concern.

JENSEN V. BROWN 15

b. Speaking as a Private Citizen

Next we must ask “whether the plaintiff spoke as a

private citizen or public employee.” Eng, 552 F.3d at 1070.

The premise of this requirement, derived from Garcetti v.

Ceballos, is that generally, “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.” 547 U.S. 410, 421 (2006). But

Garcetti noted that it was not “decid[ing] whether the

analysis [the Court] conduct[ed] . . . would apply in the same

manner to a case involving speech related to scholarship or

teaching.” Id. at 425.

Addressing that open question in Demers, we held that

“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.” 746 F.3d at 412. Rather, speech

“related to scholarship or teaching” is covered by the

Pickering doctrine even if it was made pursuant to a public

employee’s official duties. Id.

Not all speech made by a higher education employee

relates to scholarship or teaching. For example, proposals “to

allocate one additional teaching credit for teaching a large

class instead of a seminar, to adopt a dress code that would

require male teachers to wear neckties, or to provide a wider

range of choices in the student cafeteria” are likely too

attenuated from academic topics to be classified as relating

to scholarship or teaching. Id. at 415. Conversely, the

scholarship or teaching exception does not require that the

speech be published in an academic journal or uttered while

instructing a class. The pamphlet in Demers, for example,

16 JENSEN V. BROWN

was speech related to scholarship or teaching because, “if

implemented, [the pamphlet’s proposals] would have

substantially altered the nature of what was taught at the

school.” Id.

As Demers exemplifies, speech about a school’s

curriculum is “related to scholarship or teaching” and so falls

outside Garcetti’s purview, even if that speech is not made

while teaching a class or producing scholarship. We noted in

Demers that although “[i]t may in some cases be difficult to

distinguish between what qualifies as speech ‘related to

scholarship or teaching’ . . . this is not such a case,”

indicating that speech about a school’s curriculum fits

comfortably within the scholarship or teaching exception.

Id.; see also id. at 413 (recognizing in a separate example

that speech about a “department’s curriculum” is related to

scholarship or teaching).

Like the pamphlet in Demers, Jensen’s speech concerned

“what was taught at the school.” Id. It denounced the co-

requisite policy and the resulting effect on standards for

students’ completion of math courses. Further, like the

plaintiff in Demers, Jensen rooted his criticism of the

curriculum change in concerns over the quality of education

students would receive. Id. Because Jensen’s speech was

focused on the contents of TMCC’s math curriculum, it

relates to scholarship or teaching and does not come within

Garcetti’s bar on First Amendment protection for speech

made pursuant to a public employee’s official duties.

c. Motivating Factor

The next inquiry is “whether the plaintiff’s protected

speech was a substantial or motivating factor in the adverse

employment action.” Eng, 552 F.3d at 1070. “To constitute

an adverse employment action, a government act of

JENSEN V. BROWN 17

retaliation need not be severe and it need not be of a certain

kind.” Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir.

2003). “Depending on the circumstances, even minor acts of

retaliation can infringe on an employee’s First Amendment

rights.” Id. “The goal is to prevent, or redress, actions by a

government employer that ‘chill the exercise of protected’

First Amendment rights.” Id. at 974-75 (quoting Rutan v.

Republican Party, 497 U.S. 62, 73 (1990)).

Jensen avers that he experienced several adverse

employment actions. Specifically, he alleges that he was

(1) issued a letter of notice of reprimand and a letter of

reprimand; (2) pressured to resign from another faculty

member’s tenure committee; (3) given two “unsatisfactory”

performance evaluations even though the department head

had recommended that he be evaluated as “excellent 2” or

“excellent”; (4) subjected to an investigation into his

performance; and (5) required to undergo a termination

hearing. These actions, especially when considered

collectively, were “reasonably likely to deter” employees

from “engaging in speech protected under the First

Amendment.” Id. at 976-77.

Jensen has also alleged facts that plausibly support the

inference that his speech at the Math Summit was a

substantial or motivating factor for the adverse employment

actions. “A plaintiff may establish motive using direct or

circumstantial evidence.” Ariz. Students’ Ass’n v. Ariz. Bd.

of Regents, 824 F.3d 858, 870 (9th Cir. 2016). “At the

pleading stage, a plaintiff adequately asserts First

Amendment retaliation if the complaint alleges plausible

circumstances connecting the defendant’s retaliatory intent

to the suppressive conduct.” Id.

18 JENSEN V. BROWN

Jensen’s complaint plausibly links the allegedly

retaliatory acts to his speech. At the Math Summit, Ellsworth

vocally opposed Jensen’s distribution of his handout and

informed Jensen that he had “made an error by defying her.”

The notice of reprimand, sent one week after the Summit,

was explicitly a response to Jensen’s alleged insubordination

at the Math Summit. Just a few weeks later, Ellsworth

pressured Jensen to resign from the tenure committee of

another faculty member. The following month, Ellsworth

gave Jensen an official letter of reprimand expressly based

on the conduct identified in the notice of reprimand. The

temporal proximity of these events, as well as the fact that

some were explicitly premised on Jensen’s handout

distribution, plausibly demonstrates that Jensen’s speech

motivated the adverse employment actions. See Anthoine,

605 F.3d at 751.

As for Jensen’s 2019-2020 performance review,

Ellsworth wrote that Jensen’s “unsatisfactory” rating was

due in part to his conduct at the Math Summit. Drawing all

reasonable inferences in Jensen’s favor, the other reason

given for the “unsatisfactory” rating—that Jensen had

punitive course policies—may have been pretextual, given

that other faculty members enforced similar policies without

criticism or any adverse evaluation impact, and the math

department chair recommended that Jensen be given a rating

of “Excellent 2.” Even if this additional reason was not

pretextual, the presence of a legitimate basis for the adverse

employment action does not immunize the employer from

liability unless it can show that “it would have made the

same employment decisions even absent the questioned

speech.” Eng, 552 F.3d at 1072. As explained, supra note 6,

the Administrators have not at this juncture made any such

showing.

JENSEN V. BROWN 19

This negative performance review, in combination with

the negative review Jensen received the following year, 7

triggered the subsequent termination proceedings under the

mandatory provision in Section 5.13.2 of the NSHE

Handbook. These allegations sufficiently indicate that the

adverse employment actions were motivated, at least in part,

by Jensen’s speech.

d. Balancing the State’s Interest

A public employee’s right to speak is not absolute and

may be outweighed by the state’s interest “as an employer,

in promoting the efficiency of the public services it performs

through its employees.” Pickering, 391 U.S. at 568. “Once a

plaintiff shows that his statements were of public concern

and that the statements were a substantial motivating factor

for the disciplinary action taken against him, the burden

shifts to the defendant to show that its legitimate

administrative interests outweigh the plaintiff’s First

Amendment rights.” Bauer v. Sampson, 261 F.3d 775, 784

(9th Cir. 2001). In assessing the strength of the state’s

interest, pertinent considerations include “whether the

statement impairs discipline by superiors or harmony among

7

Jensen contends that his 2020-2021 “unsatisfactory” performance

review, although not explicitly premised on the events of the Math

Summit, was also retaliatory and “based on criteria that was not equally

applied to other faculty.” He alleges that Flesher, the administrator

responsible for that review, had attended the Math Summit, where she

criticized Jensen. And the individual administrator who knew Jensen’s

work best, the math department chair, recommended Jensen be scored

“excellent.” In any event, because the termination proceedings would not

have occurred without the “unsatisfactory” 2019-2020 performance

review—which was explicitly based on Jensen’s Math Summit

conduct—we need not determine whether Jensen has pleaded facts

plausibly demonstrating that the subsequent performance evaluation was

also retaliatory.

20 JENSEN V. BROWN

co-workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are

necessary, or impedes the performance of the speaker's

duties or interferes with the regular operation of the

enterprise.” Rankin, 483 U.S. at 388.

“In many cases, factual development is necessary, so the

balancing cannot be performed on a 12(b)(6) motion.”

Weisbuch v. County of L.A., 119 F.3d 778, 783 (9th Cir.

1997). Where the facts alleged do not decisively indicate that

the state’s interest outweighs the plaintiff’s, the Pickering

balancing is generally deferred at least to the summary

judgment stage. 8

The rules governing affirmative defenses support this

practice. “Ordinarily, affirmative defenses . . . may not be

raised on a motion to dismiss except when the defense raises

no disputed issues of fact.” Lusnak v. Bank of Am., N.A., 883

8

See, e.g., Hernandez, 43 F.4th at 979 (reversing the district court’s

dismissal and “remand[ing] for further development of the factual

record” because “[a]lthough it seems likely that Hernandez’s posts could

impede the performance of his job duties and interfere with the Phoenix

Police Department's ability to effectively carry out its mission, no

evidence of the actual or potential disruptive impact caused by

Hernandez’s posts is properly before us at this stage”); Hyland v.

Wonder, 972 F.2d 1129, 1140 (9th Cir. 1992) (“Determining to what

extent Hyland’s memorandum disrupted office operations . . . involves a

factual investigation into the nature of Hyland’s tasks, the character of

his relationship with co-workers . . . , and the impact of the memorandum

on office relations. . . . [T]his balancing inquiry cannot be resolved by

this court at such an early stage in the proceedings.”); Thomas v.

Carpenter, 881 F.2d 828, 831 (9th Cir. 1989) (holding that although the

defendant might be able to prove at trial or on summary judgment that

the state requires political loyalty from plaintiff for “the effective

implementation of general departmental policy,” it could not do so on

the facts alleged in the complaint).

JENSEN V. BROWN 21

F.3d 1185, 1194 n.6 (9th Cir. 2018). “In other words,

dismissal based on an affirmative defense is permitted when

the complaint establishes the defense.” U.S. Commodity

Futures Trading Comm’n v. Monex Credit Co., 931 F.3d

966, 973 (9th Cir. 2019). “Only when the plaintiff pleads

itself out of court—that is, admits all the ingredients of an

impenetrable defense—may a complaint that otherwise

states a claim be dismissed under Rule 12(b)(6).” Durnford

v. MusclePharm Corp., 907 F.3d 595, 603 n.8 (9th Cir.

2018) (quoting Xechem, Inc. v. Bristol-Myers Squibb Co.,

372 F.3d 899, 901 (7th Cir. 2004)). This rule reflects that

affirmative defenses require the defendant to prove facts

beyond those necessary to support the plaintiff’s prima facie

case, making it difficult to assess the defense’s merit on a

12(b)(6) motion where review is limited to the allegations in

the complaint.

Evaluating the state’s interest in conducting the

Pickering balancing presents the same challenge. The state

interest prong is not part of the prima facie case for First

Amendment retaliation. See Thomas v. City of Beaverton,

379 F.3d 802, 807-08 (9th Cir. 2004); Dodge v. Evergreen

Sch. Dist. #114, 56 F.4th 767, 776 (9th Cir. 2022). As a

result, a plaintiff’s complaint is unlikely to include facts

related to the state’s interest, making it difficult to conduct

the Pickering balancing on a motion to dismiss.

Only in the rare cases where “the balance can only come

out one way on the averments pleaded” do we dismiss on

that basis. Weisbuch, 119 F.3d at 783. For example, in

Weisbuch the plaintiff worked in a high-level position at the

Los Angeles Department of Health Services. Id. at 781.

Because of the nature of his position, his vocal disagreement

with the department head’s policy decisions “necessarily”

threatened the department’s ability to efficiently carry out

22 JENSEN V. BROWN

those policies. Id. at 783-84. Given that the department’s

functioning required employees “in a high level supervisory

position[] or a confidential advisory position” to agree with

their supervisor’s general policy views, it was evident from

the pleadings that the state’s interest outweighed the

employee’s. Id. at 784.

Unlike in Weisbuch, the pleadings in this case do not

reveal any state interest that clearly outweighs Jensen’s. The

Administrators’ only clearly asserted state interest grounded

in the pleadings is their assertion that Jensen distributed his

handout in violation of Ellsworth’s “express or implied

directions.” They maintain that, in doing so, Jensen engaged

in “insubordination,” which the state has a legitimate interest

in preventing.

The complaint does indicate that Jensen’s handout

distribution was at odds with Ellsworth’s instructions. When

Jensen passed out his handout in Ellsworth’s room, she

“began to physically pick up copies that were distributed and

motioned for the participants to return their copies to her.”

After Jensen reminded Ellsworth that it was break time and

that he was not being disruptive or disturbing anyone,

Ellsworth “again denied Dr. Jensen the opportunity to

distribute his handout.” In spite of this directive, Jensen

disseminated his handout in other rooms and eventually

returned to Ellsworth’s room to again attempt to distribute

the handout there. 9

9

The Administrators also argue that Jensen’s handout distribution

violated Ellsworth’s instruction to use the “parking lot” to express his

concerns regarding the co-requisite policy. But Ellsworth stated that she

did so to prevent him from verbally commenting during a session that

had run out of time. She did not order him to use the parking lot to

express his views during the breaks in the Summit programming.

JENSEN V. BROWN 23

But the state’s interest in punishing a disobedient

employee for speaking in violation of their supervisor’s

orders cannot automatically trump the employee’s interest in

speaking. To be sure, one factor in assessing the extent of the

state’s interest in preventing disruption is whether the

employee’s speech “impairs discipline by superiors.”

Rankin, 483 U.S. at 388. But, as Rankin makes clear, the

focus of this inquiry is whether there has been a disruption

in the office’s ability to operate: “[T]he very nature of the

balancing test[] make[s] apparent that the state interest

element of the test focuses on the effective functioning of the

public employer’s enterprise,” not on whether the employee

has been directed to cease speaking. Id. Accordingly, for a

court “to find that the government’s interest as an employer

in a smoothly-running office outweighs an employee’s first

amendment right, defendants must demonstrate actual,

material and substantial disruption, or reasonable predictions

of disruption in the workplace.” Robinson v. York, 566 F.3d

817, 824 (9th Cir.2009) (internal quotation marks and

alteration omitted). Applying this standard, we have often

held that the Pickering balancing does not favor the state in

situations where the employee’s speech or expressive

conduct violated orders from their supervisor.

In Nunez v. Davis, for example, Nunez’s conduct

violated her supervisor’s direct orders, but we concluded that

this disobedience was not sufficient to show that her

expressive conduct “impaired discipline.” 169 F.3d 1222,

1226-29 (9th Cir. 1999). Similarly, in Robinson, we

concluded that “the Pickering balancing test can favor

protected speech even where the speech violates the

employer’s written policy requiring speech to occur through

specified channels.” 566 F.3d at 825. And in Dahlia v.

Rodriguez, we held that an employee stated a claim for First

24 JENSEN V. BROWN

Amendment retaliation even though his speech ran counter

to his supervisor’s direct orders. 735 F.3d 1060, 1075, 1080

(9th Cir. 2013).

In assessing the state interest, there is good reason for

focusing on the disruptive impact of the employee’s speech,

rather than simply disobedience to an order to stop speaking.

If we were instead to allow an employer to prevail solely on

the basis that the employee disobeyed the employer’s order

not to speak, employers would have carte blanche to “stifl[e]

legitimate speech or penalize[e] public employees for

expressing unpopular views.” McKinley, 705 F.2d at 1115.

Under such a regime, an employer seeking to prevent an

employee from engaging in protected speech could do so

simply by ordering the employee to cease. The employee

would have to either obey or face retaliation from which

there is no recourse. In either case, the employer would

succeed in quashing protected speech. This type of

suppression is to the detriment of both the speaker and the

listener, as it undermines “[t]he public interest in having free

and unhindered debate on matters of public importance,”

which is a “core value of the Free Speech Clause.”

Pickering, 391 U.S. at 573. The First Amendment cannot

abide such a result.

Nor do the pleadings suggest any other state interest that

might justify the Administrators’ actions, much less

outweigh Jensen’s interest in free expression on matters of

public concern. Nothing in the complaint suggests that

Jensen served in a “confidential, policymaking, or public

contact role” where the “government’s interest in avoiding

disruption is magnified.” Pool v. VanRheen, 297 F.3d 899,

908 (9th Cir. 2002) (citation omitted). Nor is it evident that

Jensen’s position was one where “personal loyalty and

confidence are necessary.” Id. at 909. Jensen also was not

JENSEN V. BROWN 25

employed in a police department or military agency where

“[d]iscipline and esprit de corps are vital to its functioning.”

Cochran v. City of L.A., 222 F.3d 1195, 1201 (9th Cir. 2000);

see also Pool, 297 F.3d at 909. 10 To the contrary, there is no

indication in Jensen’s pleadings that his speech impaired

TMCC’s functioning. Jensen alleges that he distributed the

handouts in a non-disruptive manner, waiting until there was

a break in the Math Summit’s programming to pass them

out. And several witnesses testified during Jensen’s

disciplinary hearing that he behaved professionally while

distributing the handouts.

The upshot is that at this stage there has been no showing

of an “actual, material and substantial disruption” or

“reasonable predictions of disruption” to support the

Administrators’ claim that the state’s interest outweighs

Jensen’s. Robinson, 566 F.3d at 824 (citations omitted).

Consequently, we conclude that Jensen has pleaded a

constitutional violation. 11

ii. Clearly Established Right

We now turn to “whether the right at issue was ‘clearly

established’ at the time of defendant’s alleged misconduct.”

Pearson, 555 U.S. at 232. To satisfy this test, “the contours

of the right must be sufficiently clear that a reasonable

10

We do not hold that Jensen could not have plausibly alleged a First

Amendment retaliation claim if he were in such a role. We only note that

the absence of such circumstances supports our conclusion that there is

no apparent state interest clearly outweighing Jensen’s interests.

11

Some of the Administrators may turn out not to be individually liable

based on their own actions. Because no such argument has been made on

appeal of the dismissal on the pleadings, we do not decide whether

Jensen has plausibly alleged that each individual Administrator’s actions

violated the First Amendment.

26 JENSEN V. BROWN

official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 635 (1987).

There does not need to be “a case directly on point for a right

to be clearly established,” but “existing precedent must have

placed the statutory or constitutional question beyond

debate.” Kisela v. Hughes, 584 U.S. 100, 104 (2018)

(quoting White v. Pauly, 580 U.S. 73, 79 (2017)).

Additionally, it is insufficient simply to show that “the

generic First Amendment right to free speech” or “the right

to be free from speech-based retaliatory discharge” was

clearly established. Moran v. Washington, 147 F.3d 839, 845

(9th Cir. 1998); Brewster v. Bd. of Educ., 149 F.3d 971, 980

(9th Cir. 1998). “Instead, we must define the rights

implicated . . . at a level commensurate with the specific

factual and legal context of the case.” Dodge, 56 F.4th at

784.

Here, by the time of the alleged retaliation, Pickering had

established that “the preferable manner of operating the

school system . . . clearly concerns an issue of general public

interest.” 391 U.S. at 571. More recently, Demers held that

speech opining on “the nature of what [is] taught at [a]

school” addresses a matter of public concern, putting a

reasonable official on notice that Jensen’s speech regarding

TMCC’s math curriculum met this criterion. 746 F.3d at

415-16. In addition, it was clearly established at the time of

the alleged retaliation that speech need not be aired to the

general public to involve a matter of public concern. See

Anthoine, 605 F.3d at 749; Rankin, 483 U.S. at 381-82, 385-

87. Further, Demers pronounced that if a public employee’s

speech is “related to scholarship or teaching,” it does not fall

outside the ambit of the First Amendment simply because it

is made pursuant to the employee’s official duties. 746 F.3d

at 412. As Demers illustrated, speech about a department’s

JENSEN V. BROWN 27

curriculum, like that at issue here, falls squarely within the

scholarship or teaching exception. Id. at 414-15. And it was

clearly established that retaliatory actions like those taken by

the Administrators constitute adverse employment actions.

See Coszalter, 320 F.3d at 976. So at the time of the Math

Summit incident, it was clearly established that a professor

has a right to speak about a school’s curriculum without

being reprimanded, given negative performance reviews,

and put through an investigation and termination hearing.

We note, as the district court concluded otherwise, that

Demers’ substantive holdings as to the reach of the

Pickering doctrine are now clearly established law. Demers

ultimately held that qualified immunity applied in that case,

but that was because “[u]ntil the decision in [Demers], our

circuit ha[d] not addressed the application of Garcetti to

teaching and academic writing.” 746 F.3d at 417. Once

Demers clarified that Garcetti does not apply to speech

related to scholarship or teaching, the doctrinal ambiguity

was eliminated and does not bar Jensen’s claim.

Ordinarily, the next Pickering step is evaluating whether

it was clearly established that TMCC’s interest in

maintaining an orderly workplace did not outweigh Jensen’s

right to speak. See, e.g., Hufford v. McEnaney, 249 F.3d

1142, 1148-49 (9th Cir. 2001); Keyser v. Sacramento City

Unified Sch. Dist., 265 F.3d 741, 747 (9th Cir. 2001). But

“[d]etermining claims of qualified immunity at the motion-

to-dismiss stage raises special problems for legal decision

making,” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir.

2018). One such problem arises when the boundaries of the

right at issue are delineated by a balancing test in which the

defendant bears the burden of substantiating its interest, as is

the case here. Determining whether it was clearly established

that the Pickering balancing would tilt in Jensen’s favor

28 JENSEN V. BROWN

turns on the strength of the state’s interests, which, as

discussed above, must appear from the complaint itself, if at

all.

We have firmly recognized “that only a ‘real, not

imagined, disruption’ might outweigh the expressive

interests of the employee.” Robinson, 566 F.3d at 826

(quoting McKinley, 705 F.2d at 1115); see also Clairmont,

632 F.3d at 1107. Again, the requirement that an employer

substantiate their concerns of disruption applies even if the

employer characterizes the employee’s speech as “an act of

insubordination,” Clairmont, 632 F.3d at 1107, or the speech

involves some degree of disobedience, Robinson, 566 F.3d

at 825. Although the Administrators assert a state interest in

preventing and punishing what they deem to be

insubordination, they have not shown that there was “actual,

material and substantial disruption” or “reasonable

predictions of disruption” based on the facts in the

complaint. Robinson, 566 F.3d at 824 (citations omitted).

Faced with similar circumstances, the D.C. Circuit

declined to grant state officials qualified immunity where the

strength of the state’s interest could not be established from

the pleadings. See Navab-Safavi v. Glassman, 637 F.3d 311,

318 (D.C. Cir. 2011). 12 As was the case in Navab-Safavi,

12

Although the Ninth Circuit does not appear to have confronted this

issue on a motion to dismiss, we have faced a comparable lack of

evidentiary development regarding the weight of the state’s interest on

summary judgment and reached a similar result. See Allen v. Scribner,

812 F.2d 426, 436 (9th Cir. 1987), amended by 828 F.2d 1445 (9th Cir.

1987) (“Inasmuch as the defendants’ interest in preventing the

substantial disruption of the eradication program may have been served

by restrictions on the free speech rights of Project employees . . . , we are

not in a position to determine whether the above named defendants

violated ‘clearly established constitutional rights.’”).

JENSEN V. BROWN 29

“all we have of record is the [state’s] assertion that its interest

in performing its governmental functions . . . was sufficiently

implicated by plaintiff’s conduct to warrant the protection of

qualified immunity.” Id. There is not yet any “evidence in

the record that [Jensen’s] conduct interfered with the

performance of the governmental function,” and “we are

unable to determine without an evidentiary record whether

any act [the state] committed in defense of [its interests]

constituted a violation of clearly established rights, or even

in general terms, where the Pickering balancing tips.” Id.

Because “it is not possible to determine at this stage as a

matter of law that [Jensen] has not alleged a violation of

clearly established law,” the Administrators are not entitled

to qualified immunity at the pleading stage. Id.

In reaching the opposite outcome, the district court

concluded that Jensen had not shown that his right was

clearly established. The complaint described his anti-

retaliation right too generally, the district court said, and

contained “only three citations—Demers, 746 F.3d 402, the

First Amendment, and 42 U.S.C. § 1983,” which “do not

clearly establish the specific right at issue in this particular

case.”

We cannot agree with this truncated analysis.

“[A]ppellate review of qualified immunity dispositions is to

be conducted in light of all relevant precedents, not simply

those cited to, or discovered by, the district court.” Elder v.

Holloway, 510 U.S. 510, 512 (1994). “A court engaging in

review of a qualified immunity judgment should therefore

use its ‘full knowledge of its own and other relevant

precedents.’” Id. at 516 (alteration omitted) (quoting Davis

v. Scherer, 468 U.S. 183, 192 n.9 (1984)). As described

above, our review of the full range of relevant precedents

30 JENSEN V. BROWN

indicates that the Administrators are not entitled to qualified

immunity at this stage.

B. Official Capacity First Amendment Claim

The district court dismissed Jensen’s official capacity

claim, maintaining that it was barred by sovereign immunity.

“The Eleventh Amendment bars suits against the State or its

agencies for all types of relief, absent unequivocal consent

by the state.” Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.

1999). Ordinarily, this protection “extends to state

instrumentalities and agencies,” as well as “state officials”

sued in their “official capacity.” Krainski v. Nevada ex rel.

Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963,

967 (9th Cir. 2010). But over a century ago, Ex parte Young

held that Eleventh Amendment-linked sovereign immunity

is not a barrier to suits against state officers “where the relief

sought is prospective in nature and is based on an ongoing

violation of the plaintiff’s federal constitutional or statutory

rights.” Cent. Rsrv. Life of N. Am. Ins. Co. v. Struve, 852 F.2d

1158, 1161 (9th Cir. 1988) (emphasis omitted) (citing Ex

parte Young, 209 U.S. 123 (1908)). Under this principle, a

plaintiff may seek “prospective injunctive relief that governs

the official’s future conduct,” but not “retroactive relief that

requires the payment of funds from the state treasury.” Nat’l

Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 422

(9th Cir. 1996). Jensen’s ability to proceed with his official

capacity claim turns on whether he sought prospective relief.

i. Injunctive Relief: Expungement

Jensen sought injunctive relief mandating “full

expungement of all negative personal [sic] files, return of his

2019-2020 annual performance evaluation to ‘excellent’,

and return of his 2020-2021 annual performance evaluation

to ‘excellent.’” The district court held that such an injunction

JENSEN V. BROWN 31

would be “retroactive” because it “more closely resemble[d]

recovery of lost wages than true prospective relief

addressing ongoing violations.” Jensen challenges this

conclusion on appeal. 13

Ninth Circuit case law establishes that expungement of

records constitutes prospective relief and so is not barred by

sovereign immunity. See Flint v. Dennison, 488 F.3d 816,

825 (9th Cir. 2007). In Flint, a former college student

brought suit against school administrators alleging that the

spending limits imposed in student government elections

violated his First Amendment right to freedom of speech. Id.

at 820. In connection with this claim, Flint sought injunctive

relief expunging any reference to his campaign spending

violations from his disciplinary record. Id. at 824. We held

that the expungement relief sought was not barred by

sovereign immunity, reasoning that “the injunctions sought

[were] not limited merely to past violations: they serve[d]

the purpose of preventing present and future harm to [the

plaintiff].” Id. at 825. We reached a similar conclusion in

R.W. v. Columbia Basin College, holding that the Ex parte

Young doctrine applied where the student plaintiff sought,

among other things, expungement of negative records. 77

F.4th 1214, 1226 (9th Cir. 2023); see also Elliott v. Hinds,

786 F.2d 298, 302 (7th Cir. 1986) (“The injunctive relief

requested here, reinstatement and expungement of personnel

records, is clearly prospective in effect and thus falls outside

the prohibitions of the Eleventh Amendment.”). Most

recently, in K.J. v. Jackson, we confirmed that expungement

13

Jensen does not contest the district court’s determination that his

request for “compensation from the date of judgment for salary

adjustments he would have received had he not received the unlawful

performance reviews” was impermissible retroactive monetary relief.

We therefore do not address whether that is the case.

32 JENSEN V. BROWN

of information from school records is a form of prospective

relief a student plaintiff can seek under the Ex parte Young

doctrine. 127 F.4th 1239, 1251 (9th Cir. 2025).

As was the case in Flint, R.W., and K.J., the

expungement sought here is prospective in nature and so is

not barred by sovereign immunity. Although the negative

performance evaluations and letters of reprimand arose from

the Administrators’ alleged past constitutional violations, Ex

parte Young does not demand that the relief sought be

unrelated to past violations. Rather, a plaintiff may pursue

relief that “would relate to [a] past violation,” so long as it

“would not amount to relief solely for the past violation.”

Doe v. Lawrence Livermore Nat’l Lab’y, 131 F.3d 836, 841

(9th Cir. 1997). Expungement of negative work records does

not amount solely to relief for a past violation, because “[t]he

goal of . . . the removal of damaging information from the

plaintiff[’]s work record is not compensatory; rather, it is to

compel the state official to cease her actions in violation of

federal law and to comply with constitutional requirements.”

Elliott, 786 F.2d at 302.

The Administrators contend otherwise, arguing that

cases involving student plaintiffs are not controlling. A

student seeking expungement experiences a “self-evident

educational or career harm inherent in the existence of the

records at issue,” they maintain, whereas an individual

already employed is less likely to seek future employment or

educational opportunities that require disclosing one’s

disciplinary record as an employee. As a result, the

Administrators assert, for us to determine that his requested

relief would remedy an “ongoing violation,” Jensen must

plead with specificity what ongoing harm he will endure

related to the existence of the negative records.

JENSEN V. BROWN 33

Putting aside the fact that Jensen has alleged specific

ongoing harm due to the negative documents in his

personnel file, 14 holding Jensen to a higher pleading

standard because he is an employee rather than a student

makes no sense. Just as a student’s negative disciplinary

records “may jeopardize the student’s future employment or

college career,” Flint, 488 F.3d at 824, the presence of

negative performance evaluations or letters of reprimand in

an employee’s personnel file poses an obvious threat to

career advancement. Such documents, or information

derived from them, may stymie efforts to obtain a job

elsewhere or prevent accessing certain benefits,

opportunities, or promotions at their current job. One might

ask, indeed, why the Administrators are so insistent on

retaining the disciplinary records if they do not expect to rely

on them for anything.

In sum, the alleged violation—First Amendment

retaliation—is ongoing insofar as the retaliatory records

continue to exist in Jensen’s personnel file. Because

expungement would constitute prospective relief from this

ongoing violation, Jensen’s First Amendment official

capacity claim is not barred by the Eleventh Amendment.

14

Jensen alleges that the negative performance reviews “negatively

impacted . . . future merit pay” and prevent him “from receiving

employment benefits and other opportunities at TMCC.” He alleges that

“Defendants’ unlawful actions,” which allegedly include the creation

and retention of the records at issue, have caused ongoing “damage to

his personal and professional reputation, denial of future employment

opportunities and earning capacity, mental and emotional distress, and

humiliation and embarrassment.”

34 JENSEN V. BROWN

ii. Declaratory Relief and Non-Expungement Injunctive

Relief

Even if that were not the case, Jensen sought, in addition

to expungement, prospective relief in the form of an order

“[e]njoining Defendants . . . to end their custom and practice

of taking adverse employment actions against faculty who

speak on matters of public concern” and a declaratory

judgment that “Defendants’ adverse employment actions

against Dr. Jensen, and Defendants’ custom or practice of

retaliating against and terminating professors for speaking

on matters of public concern, are unconstitutional

abridgments of the freedom of speech.”

Unlike its treatment of the requested expungement, the

district court correctly recognized that this prospective

declaratory and injunctive relief was “not barred by the

Eleventh Amendment.” But its analysis of the injunctive

relief stopped there. At the conclusion of its order, the

District Court again addressed the non-expungement relief

sought, stating that “[w]hile Eleventh Amendment immunity

and qualified immunity do not bar Dr. Jensen’s claims for

declaratory and injunctive relief, the Court dismisses Dr.

Jensen’s claim for declaratory relief because all other

substantive causes of action are dismissed.” The district

court then proceeded to dismiss Jensen’s official capacity

claim entirely, without identifying any reason why Jensen

could not seek an injunction for indisputably prospective

relief.

The district court provided a more robust, although no

more correct, explanation for why Jensen could not pursue

declaratory relief. After disposing of Jensen’s substantive

claims, the district court concluded that declaratory relief

JENSEN V. BROWN 35

was unavailable because “[d]eclaratory relief is not a

standalone claim.”

It is true that “[t]he Declaratory Judgment Act does not

provide an independent jurisdictional basis for suits in

federal court,” and so “only permits the district court to

adopt a specific remedy when jurisdiction exists.” Fiedler v.

Clark, 714 F.2d 77, 79 (9th Cir. 1983) (emphasis added).

But, as the district court recognized, Jensen’s request for

declaratory relief is prospective and can proceed under Ex

parte Young. There is no principle precluding declaratory

relief from being the only relief awarded, and it is quite usual

for declaratory relief to be permitted as a “standalone claim.”

See, e.g., Redd v. Guerrero, 84 F.4th 874, 888 (9th Cir.

2023); Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 700

(9th Cir. 1992); Standard Ins. Co. v. Saklad, 127 F.3d 1179,

1181 (9th Cir. 1997); Doc’s Dream, LLC v. Dolores Press,

Inc., 959 F.3d 357, 359 (9th Cir. 2020). The district court

erred in holding that Jensen could not maintain an official

capacity First Amendment claim for declaratory relief alone.

In sum, because Jensen sought prospective relief in the

form of (1) an injunction to expunge various negative

records from his personnel file, (2) an injunction to “end [the

Administrators] custom and practice of taking adverse

employment actions against faculty who speak on matters of

public concern,” and (3) a “declaratory judgment that

Defendants’ custom and practice of retaliating against

faculty who speak on matters of public concern, including

Dr. Jensen, violate the First Amendment,” the Eleventh

Amendment does not bar his official capacity First

Amendment retaliation claim.

36 JENSEN V. BROWN

C. Procedural Due Process Claim

The district court held that the Administrators were

entitled to qualified immunity with respect to Jensen’s

procedural due process claim because Jensen failed to plead

a constitutional violation. “A section 1983 claim based upon

procedural due process . . . has three elements: (1) a liberty

or property interest protected by the Constitution; (2) a

deprivation of the interest by the government; (3) lack of

process.” Portman v. County of Santa Clara, 995 F.2d 898,

904 (9th Cir. 1993).

In the portion of his complaint addressing his due

process claim, Jensen identified the following interests:

(1) “a protected liberty interest in his good name, reputation,

honor, and integrity,” (2) “a protected liberty interest in his

future employment opportunities,” and (3) “a significant

interest in avoiding termination for cause or being subjected

to a biased hearing panel.” The district court concluded that

none of these interests supported a due process claim.

On appeal, Jensen does not challenge the district court’s

conclusion that his asserted interests in his reputation, his

future employment, and avoiding termination do not provide

a basis for a due process claim. Instead, Jensen contends that

he was denied due process related to the deprivation of

(1) his “liberty interests in ensuring that his First

Amendment rights were protected . . . , his rights under state

law were protected, and his rights in the NSHE Handbook

were protected,” and (2) his “property interests in his right

to academic freedom, right to maintain standards of

curriculum, right to have processes for faculty terminations

followed, and right to not be charged with insubordination

for distributing handouts.”

JENSEN V. BROWN 37

As to Jensen’s asserted “liberty interests” in ensuring his

rights under the First Amendment and state law were

protected, he did not plead a due process claim premised on

either theory. Nor did he raise either argument in his briefing

before the district court. He is foreclosed from asserting

these theories for the first time on appeal. See One Indus.,

LLC v. Jim O’Neal Distrib., Inc., 578 F.3d 1154, 1158 (9th

Cir. 2009); Steam Press Holdings, Inc. v. Haw. Teamsters,

Allied Workers Union, Loc. 996, 302 F.3d 998, 1005 (9th

Cir. 2002).

As to his “property interest in his right to academic

freedom, right to maintain standards of curriculum, . . . and

right to not be charged with insubordination for distributing

handouts,” Jensen did raise a due process argument on these

grounds before the district court. But, as the district court

correctly determined, Jensen’s complaint did not assert a due

process violation grounded in the deprivation of any of these

interests. Jensen’s failure to plead a due process claim based

on these interests is dispositive at this point. 15

That leaves Jensen’s asserted interest in compliance with

the processes for faculty terminations outlined in the NSHE

Handbook. 16 Jensen pleads that he was deprived of due

process when (1) he was denied subpoenas that he was

15

Jensen may seek to amend his complaint to add additional due process

claims on remand. See infra p. 43.

16

Although Jensen’s briefing—which addresses his due process claim

only briefly—is not clear on this point, we understand Jensen’s “liberty

interest” in ensuring that “his rights in the NSHE Handbook were

protected” and his “property interest” in his “right to have processes for

faculty terminations followed” as describing the same set of procedural

protections for faculty termination proceedings contained in the NSHE

Handbook.

38 JENSEN V. BROWN

entitled to under NSHE Handbook Section 6.9.11,

(2) Hilgersom, in violation of NSHE Handbook Section

6.11.6(b), refused to remove one of the presiding committee

members who had previously submitted a complaint of

discrimination against Jensen, and (3) Brown exceeded her

authority under NSHE Handbook Section 5.13.2(a)-(b) by

investigating him and listing additional charges in Jensen’s

charging documents.

State law establishing certain procedures can, under

some circumstances, create a property interest in accessing

those procedures. See, e.g., Logan v. Zimmerman Brush Co.,

455 U.S. 422, 431-32 (1982) (holding that employee had a

property interest in accessing state agency’s adjudicatory

procedures); Redd v. Guerrero, 84 F.4th 874, 893 (9th Cir.

2023) (holding that capital habeas petitioner had a property

interest in obtaining appointed counsel). But, unlike in

Logan or Redd, Jensen has not argued that the relevant

procedural rights in the NSHE Handbook “can be

surrendered for value,” Logan, 455 U.S. at 431, or

“resemble[] more traditional conceptions of property in that

[they] ha[ve] an ‘ascertainable monetary value.’” Redd, 84

F.4th at 893-94. Nor has he argued that these procedures

share any other relevant characteristics with the sort of

“individual entitlement[s]” that are generally considered to

be property under the Due Process Clause. Logan, 455 U.S.

at 430-31.

Alternatively, procedures created by state law may give

rise to a property right if the procedures present a

“significant substantive restriction” on the decisionmaker’s

discretion such that it transforms “what otherwise would be

‘an abstract need or desire’ or ‘a unilateral expectation’” as

to the outcome of those procedures into “a legitimate claim

of entitlement.” Parks v. Watson, 716 F.2d 646, 656-57 (9th

JENSEN V. BROWN 39

Cir. 1983) (quoting Bd. of Regents v. Roth, 408 U.S. 564,

577 (1972)); see also Goodisman v. Lytle, 724 F.2d 818, 820

(9th Cir. 1984); Clemente v. United States, 766 F.2d 1358,

1364-65 (9th Cir. 1985); Nunez v. City of Los Angeles, 147

F.3d 867, 873 n.8 (9th Cir. 1998). But here Jensen does not

contend that he has any interest in obtaining a different

outcome from the termination proceedings. He would be

hard pressed to do so, given that he was not terminated or

otherwise disciplined following the proceedings. “Absent a

substantive property interest in the outcome of procedure,

[Jensen] is not constitutionally entitled to insist on

compliance with the procedure itself.” Shanks v. Dressel,

540 F.3d 1082, 1092 (9th Cir. 2008). Thus, Jensen did not

identify an interest that can form the basis of his procedural

due process claim.

D. Equal Protection Claim

The district court determined that the Administrators

were entitled to qualified immunity with respect to Jensen’s

equal protection claim because Jensen failed to plead a

constitutional violation. “To state a claim under 42 U.S.C.

§ 1983 for a violation of the Equal Protection Clause of the

Fourteenth Amendment a plaintiff must show that the

defendants acted with an intent or purpose to discriminate

against the plaintiff based upon membership in a protected

class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir.

2013) (quoting Barren v. Harrington, 152 F.3d 1193, 1194

(9th Cir. 1998)). “The first step in equal protection analysis

is to identify the state’s classification of groups.” Country

Classic Dairies, Inc. v. Milk Control Bureau, 847 F.2d 593,

596 (9th Cir. 1988). “An equal protection claim will not lie

by ‘conflating all persons not injured into a preferred class

receiving better treatment’ than the plaintiff.” Thornton v.

City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)

40 JENSEN V. BROWN

(quoting Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir.

1986)).

Jensen’s equal protection claim fails because he has not

alleged that he belongs to a discrete class. He claims only

that he was “treated . . . differently than similarly situated

Professors” and “evaluated differently from other faculty.”

These allegations do not establish membership in a class

singled out for discriminatory treatment, nor can Jensen state

an equal protection claim by grouping everyone besides

himself into a “preferred class.” Thornton, 425 F.3d at 1167.

“[A]n equal protection claim can in some circumstances

be sustained even if the plaintiff has not alleged class-based

discrimination, but instead claims that she has been

irrationally singled out as a so-called ‘class of one.’”

Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601

(2008). But, unlike in the legislative and regulatory context

where the class-of-one theory of equal protection has

traditionally been applied, the state’s role as an employer

often “involve[s] discretionary decisionmaking based on a

vast array of subjective, individualized assessments.” Id. at

603. “To treat employees differently . . . is simply to exercise

the broad discretion that typically characterizes the

employer-employee relationship.” Id. at 605. Accordingly,

“the class-of-one theory of equal protection has no

application in the public employment context,” and this

avenue is unavailable to Jensen. Id. at 607; see also Okwu v.

McKim, 682 F.3d 841, 846 (9th Cir. 2012). The district court

did not err in concluding that Jensen failed to plead an equal

protection violation.

E. Leave to Amend

Finally, Jensen argues that the district court abused its

discretion in dismissing his claims with prejudice and

JENSEN V. BROWN 41

without leave to amend. Generally, a “court should freely

give leave [to amend the pleadings] when justice so

requires.” Fed. R. Civ. P. 15(a). “[T]his policy is to be

applied with extreme liberality.” Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting

Morongo Band of Mission Indians v. Rose, 893 F.2d 1074,

1079 (9th Cir. 1990)).

Denial of leave to amend a complaint is generally

reviewed for abuse of discretion. Nunes v. Ashcroft, 375 F.3d

805, 808 (9th Cir. 2004). “[O]utright refusal to grant the

leave without any justifying reason appearing for the denial

is not an exercise of discretion; it is merely abuse of that

discretion and inconsistent with the spirit of the Federal

Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962).

Consequently, “[a] simple denial of leave to amend without

any explanation by the district court is subject to reversal.”

Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052

(9th Cir. 2003); see also DCD Programs, Ltd. v. Leighton,

833 F.2d 183, 186 (9th Cir. 1987).

Here, the district court gave no reason for its denial of

leave to amend, and in doing so, abused its discretion. We

reverse and remand so that Jensen may have the opportunity

again to seek leave to amend his due process and equal

protection claims.

III. Conclusion

Jensen’s First Amendment retaliation claims are barred

by neither qualified immunity nor sovereign immunity. They

may therefore progress past the pleading stage. Although

Jensen’s due process and equal protection claims do not state

a claim as pleaded, the district court abused its discretion in

denying Jensen leave to amend without explanation. The

district court’s dismissal order is REVERSED and

42 JENSEN V. BROWN

REMANDED for further proceedings consistent with

this opinion.