David Demers v. Erica Austin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID K. DEMERS, No. 11-35558

Plaintiff-Appellant,

D.C. No.

v. 2:09-cv-00334-

RHW

ERICA AUSTIN; ERICH LEAR;

WARWICK M. BAYLY; FRANCES

MCSWEENEY, ORDER AND

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, Senior District Judge, Presiding

Argued and Submitted

November 7, 2012—Seattle, Washington

Filed January 29, 2014

Before: William A. Fletcher and Raymond C. Fisher,

Circuit Judges, and Gordon J. Quist, Senior District Judge.*

Order;

Opinion by Judge W. Fletcher

*

The Honorable Gordon J. Quist, Senior United States District Judge for

the Western District of Michigan, sitting by designation.

2 DEMERS V. AUSTIN

SUMMARY**

Civil Rights

The panel replaced its prior opinion, filed on September

4, 2013, and published at 729 F.3d 1011, with a new opinion,

denied a petition for panel rehearing, and denied a petition for

rehearing en banc on behalf of the court, in an action brought

pursuant to 42 U.S.C. § 1983 by a tenured associate

university professor who alleged that university

administrators retaliated against him in violation of the First

Amendment for distributing a short pamphlet and drafts from

an in-progress book.

The panel held that Garcetti v. Ceballos, 547 U.S. 410

(2006), does not apply to speech related to scholarship or

teaching. Rather, such speech is governed by Pickering v.

Board of Education, 391 U.S. 563 (1968). The panel

concluded that the short pamphlet was related to scholarship

or teaching and that it addressed a matter of public concern

under Pickering. The panel concluded, further, that there was

insufficient evidence in the record to show that the in-

progress book triggered retaliation against plaintiff. Finally,

the panel concluded that defendants were entitled to qualified

immunity from damages, given the uncertain state of the law

in the wake of Garcetti.

**

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

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

DEMERS V. AUSTIN 3

COUNSEL

Judith A. Endejan (argued), Graham & Dunn, PC, Seattle,

Washington, for Plaintiff-Appellant.

Kathryn M. Battuello (argued) and Catherine Hendricks,

Office of the Washington Attorney General, Seattle,

Washington, for Defendants-Appellees.

John Joshua Wheeler, Thomas Jefferson Center,

Charlottesville, Virginia, for Amici Curiae American

Association of University Professors and the Thomas

Jefferson Center for the Protection of Free Expression.

ORDER

The opinion filed on September 4, 2013, and published at

729 F.3d 1011, is withdrawn and replaced by the attached

opinion.

With the filing of this new opinion, the panel has voted to

deny the petition for rehearing. Judge W. Fletcher has voted

to deny the petition for rehearing en banc; and Judges Fisher

and Quist so recommend.

The full court has been advised of the petition for

rehearing en banc and no judge of the court has requested a

vote on whether to rehear the matter en banc. Fed. R. App. P.

35.

The petition for rehearing and the petition for rehearing

en banc, filed October 3, 2013, are DENIED.

4 DEMERS V. AUSTIN

OPINION

W. FLETCHER, Circuit Judge:

David Demers is a tenured associate professor at

Washington State University. He brought suit alleging that

university administrators retaliated against him in violation of

the First Amendment for distributing a short pamphlet and

drafts from an in-progress book. The district court granted

summary judgment for the defendants, finding that the

pamphlet and draft were distributed pursuant to Demers’s

employment duties under Garcetti v. Ceballos, 547 U.S. 410

(2006). Alternatively, the court held that the pamphlet was

not protected under the First Amendment because its content

did not address a matter of public concern.

We hold that Garcetti does not apply to “speech related

to scholarship or teaching.” Id. at 425. Rather, such speech

is governed by Pickering v. Board of Education, 391 U.S. 563

(1968). In Demers’s case, we conclude that the short

pamphlet was related to scholarship or teaching, and that it

addressed a matter of public concern under Pickering. We

remand for further proceedings. We conclude, further, that

there is insufficient evidence in the record to show that the in-

progress book triggered retaliation against Demers. Finally,

we conclude that defendants are entitled to qualified

immunity, given the uncertain state of the law in the wake of

Garcetti.

I. Background

David Demers is a member of the faculty in the Edward

R. Murrow College of Communication (“Murrow School” or

“Murrow College”) at Washington State University

DEMERS V. AUSTIN 5

(“WSU”). He joined the faculty in 1996. He was granted

tenure as an associate professor in 1999. Demers also owns

and operates Marquette Books, an independent publishing

company.

Demers brought suit alleging First Amendment violations

by WSU Interim Director of the Murrow School Erica Austin,

Vice Provost for Faculty Affairs Frances McSweeney, Dean

of the College of Liberal Arts Erich Lear, and Interim WSU

Provost and Executive Vice President Warwick Bayly.

Demers contends that defendants retaliated against him, in

violation of his First Amendment rights, for distributing a

pamphlet called “The 7-Step Plan” (“the Plan”) and for

distributing a draft introduction and draft chapters of an in-

progress book titled “The Ivory Tower of Babel” (“Ivory

Tower”). Demers contends that defendants retaliated by

giving him negative annual performance reviews that

contained falsehoods, by conducting two internal audits, and

by entering a formal notice of discipline. Demers contends

in his brief that over a three-year period he “went from being

a popular teacher and scholar with high evaluations to a target

for termination” due to the actions of defendants.

The Plan is a two-page pamphlet Demers wrote in late

2006 and distributed in early 2007. Demers distributed the

Plan while he was serving on the Murrow School’s “Structure

Committee,” which was actively debating some of the issues

addressed by the Plan. At that time, the Murrow School was

part of the College of Liberal Arts at WSU, but the faculty

had voted unanimously in favor of becoming a free-standing

College. (It became a College in July 2008.) The Murrow

School had two faculties. One faculty was Mass

Communications, which had a professional and practical

orientation. The other was Communications Studies, which

6 DEMERS V. AUSTIN

had a more traditional academic orientation. Faculty

members held appointments in either Mass Communications

or Communications Studies. The Structure Committee was

considering whether to recommend, as part of the

restructuring of the Murrow School, that the two faculties of

the School be separated. There was serious disagreement at

the Murrow School on that question.

Demers is a member of the Mass Communications

faculty. Demers’s Plan proposed separating the two faculties.

It proposed strengthening the Mass Communications faculty

by appointing a director with a strong professional

background and giving more prominent roles to faculty

members with professional backgrounds. For four years,

early in his career, Demers had himself been a professional

reporter.

On January 16, 2007, Demers sent the Plan to the Provost

of WSU. In his cover letter, he stated that the purpose of the

Plan is to show how WSU “can turn the Edward R. Murrow

School of Communication into a revenue-generating center

for the university and, at the same time, improve the quality

of the program itself.” Demers’s letter also stated, “To initiate

a fund-raising campaign to achieve this goal, my company

and I would like to donate $50,000 in unrestricted funds to

the university.” Demers signed the letter “Dr. David Demers,

Publisher/ Marquette Books LLC.” A footnote appended to

the signature line specified, “Demers also is associate

professor of communications at Washington State University.

Marquette Books LLC is a book/journal publishing company

that he operates in his spare time. It has no ties with nor does

it use any of the resources at Washington State University.”

The cover of the Plan states that it was “prepared by

Marquette Books LLC.” The Provost did not respond to

DEMERS V. AUSTIN 7

Demers’s letter and Plan. On March 29, 2007, Demers sent

the Plan to the President of WSU. The cover letter was

identical to the letter he had sent to the Provost, except that he

increased the offered donation to $100,000.

In his declaration, Demers states that he sent the Plan “to

members of the print and broadcast media in Washington

state, to administrators at WSU, to some of my colleagues, to

the Murrow Professional Advisory Board, and others.”

Demers also posted the Plan on the Marquette Books website.

In his deposition, Demers stated that he could not remember

the names of the individuals to whom he had sent the Plan.

Demers did not submit the Plan to the Structure Committee

or to Interim Director Austin. In her deposition, Austin stated

that alumni and members of the professional community

contacted faculty members to ask about the Plan.

During the period relevant to his suit, Demers had

completed drafts of parts of what would eventually become

“Ivory Tower.” The book was not published until after the

actions about which Demers complains took place. In his

self-prepared 2006 “Faculty Annual Report,” submitted in

early 2007, Demers described the in-progress book as “partly

autobiographical and partly empirical. It will involve

national probability surveys of social scientists, governmental

officials and journalists.” Demers attached a copy of the draft

introduction and the first chapter to his November 2007

application for a sabbatical. In his application, he described

the planned book as follows:

[T]he book examines the role and function of

social science research in society. . . . Today

most social scientists believe very strongly

that the research they conduct is important for

8 DEMERS V. AUSTIN

solving social problems, or at least has some

impact on public policy. However, empirical

research in political science and public policy

shows just the opposite. Social scientific

research generally has little impact on public

policy decisions and almost never has a direct

impact on solving social problems. Instead,

social movements play a much more

important role . . . .

Demers also wrote in the application, “The book contains

information that is critical of the academy, including some

events at Washington State University.” In his self-prepared

2008 Annual Activity Report, Demers reported that he had

completed 250 of a planned 380 pages of the book.

Demers did not put any of the drafts of the book in the

record. Interim Director Austin recalled in her deposition

that she had seen parts of the book in connection with

Demers’s application for sabbatical. Vice Provost

McSweeney stated in her deposition that she read some draft

chapters that had been posted online, in particular chapters

written about her and about “anything that [she] was directly

involved in.”

Demers contends that defendants retaliated against him

for circulating the Plan and drafts of Ivory Tower. He claims

that Austin and others knowingly used incorrect information

to lower his performance review scores for 2006, 2007, and

2008. He contends that some defendants falsely stated that he

had improperly canceled classes and that he had not gone

through the proper university approval process before starting

Marquette Books. He contends that specific acts of

retaliation included spying on his classes, preventing him

DEMERS V. AUSTIN 9

from serving on certain committees, preventing him from

teaching basic Communications courses, instigating two

internal audits, sending him an official disciplinary warning,

and excluding him from heading the journalism sequence at

the Murrow School. Demers claims that these acts affected

his compensation and his reputation as an academic. Demers

argues on appeal that the Plan is protected, despite Garcetti,

because it was not written and distributed as part of his

employment. He contends further that the Plan and Ivory

Tower are protected because Garcetti does not apply to

academic speech.

Defendants respond that changes in Demers’s evaluations

and the investigations by the university were warranted, and

were not retaliation for the Plan or Ivory Tower. Defendants

contend that Demers reoriented his priorities away from

academia after receiving tenure, that Demers’s attendance at

faculty committee meetings was sporadic, and that Demers

gave online quizzes instead of appearing in person to teach

his Friday classes despite repeated requests to comply with

university policies that required him to appear in person.

Defendants contend that the legitimate reasons for Demers’s

critical annual reviews include his post-tenure failure to

publish scholarship in refereed journals, his failure to perform

his appropriate share of university service, and his failure to

report properly his activities at Marquette Books. Defendants

contend, further, that Demers’s lower marks under Interim

Director Austin were partly attributable to an overall

adjustment of the annual review scale for the faculty as a

whole.

Defendants contend that the Plan was written and

circulated pursuant to Demers’s official duties and so is not

protected under Garcetti, and that, in any event, the Plan does

10 DEMERS V. AUSTIN

not address a matter of public concern. They contend that

because Demers failed to place any of the drafts of Ivory

Tower in the record, there is insufficient evidence upon which

to sustain Demers’s retaliation claim based on those drafts.

Finally, defendants contend that they are entitled to qualified

immunity from any damages based on the uncertain status of

teaching and academic writing after Garcetti.

The district court granted summary judgment to

defendants. It held that the Plan and Ivory Tower were

written and distributed in the performance of Demers’s

official duties as a faculty member of WSU, and were

therefore not protected under the First Amendment. The

district court held, alternatively, with respect to the Plan, that

it did not address a matter of public concern. Demers timely

appealed.

II. Standard of Review

We review a district court’s grant of summary judgment

de novo. Suzuki Motor Corp. v. Consumers Union of U.S.,

Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). Summary

judgment is appropriate when “there is no genuine dispute as

to any material fact and the movant is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(a). Because this

appeal is taken from an order of summary judgment in favor

of defendants, “‘[t]he evidence of [Demers] is to be believed,

and all justifiable inferences are to be drawn in his favor.’”

Garcetti v. Ceballos, 547 U.S. 410, 442 n.13 (2006) (first

alteration in original) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986)).

DEMERS V. AUSTIN 11

III. Discussion

Demers makes two arguments. First, he argues that

writing and distributing the Plan were not done pursuant to

his official duties, and thus do not come within the Court’s

holding in Garcetti. Second, he argues that even if he wrote

and distributed the Plan (as well as Ivory Tower) pursuant to

his official duties, Garcetti’s holding does not extend to

speech and academic writing by a publicly employed teacher.

We disagree with his first argument but agree with his

second.

A. Speech Pursuant to Official Duties

The district court found that Demers wrote and distributed

the Plan and Ivory Tower pursuant to his duties as a professor

at WSU. We agree with the district court. “[A]fter Garcetti,

. . . the question of the scope and content of a plaintiff’s job

responsibilities is a question of fact.” Dahlia v. Rodriguez,

735 F.3d 1060, 1072 (9th Cir. 2013) (en banc) (citation and

internal quotation marks omitted).

While he was preparing the Plan, Demers sent an email to

his fellow faculty members at the Murrow School, soliciting

ideas and comments. He wrote:

As you know, I’m preparing a proposal for

splitting the School back into two separate

units, a Communications Studies department

and a professional/mass communication

school.

12 DEMERS V. AUSTIN

In his self-prepared 2007 Annual Activity Report, Demers

listed under the heading “Murrow School of Communication

Service Activities”:

Developed a 7-Step Plan for reorganizing the

Murrow School to improve the quality of the

professional programs and attract more

development funds. The plan recommends

that the communications studies program be

separated from the four professional programs

(print journalism, broadcasting, public

relations, and advertising), the School hire

more professionals and give them more

authority, seek accreditation for the

professional programs, and develop stronger

partnerships with the business community.

Demers prepared and sent the Plan to the Provost and

President while he was serving as a member of the Murrow

School “Structure Committee,” which was deciding, among

other things, whether to recommend separating the Mass

Communications and Communications Studies faculties.

Demers points out that the cover of the Plan indicates that

it was prepared by Marquette Books, that he did not sign his

cover letters to the Provost and the President as a professor,

and that he included a footnote in the letter stating that he was

not acting as a professor. He contends that this, along with

his private donation offer, shows that he was not acting

pursuant to his duties as a professor when he wrote and

distributed the Plan. However, it is impossible, as a real-

world practical matter, to separate Demers’s position as a

member of the Mass Communications faculty, and as a

member of the Structure Committee, from his preparation and

DEMERS V. AUSTIN 13

distribution of his Plan. Further, we note that when it was to

his advantage to do so, Demers characterized his

development of the Plan as part of his official duties in his

2007 Annual Activities Report. Demers may not have been

acting as a team player in sending his Plan directly to the top

administrators at WSU, rather than working with and through

his fellow committee members. But we conclude that in

preparing the Plan, in sending the Plan to the Provost and

President, in posting the Plan on the Internet, and in

distributing the Plan to news media, to selected faculty

members and to alumni, Demers was acting sufficiently in his

capacity as a professor at WSU that he was acting “pursuant

to [his] official duties” within the meaning of Garcetti.

547 U.S. at 421. We thus turn to the question whether

Garcetti applies to academic speech.

B. Academic Speech Under the First Amendment

Until the Supreme Court’s 2006 decision in Garcetti,

public employees’ First Amendment claims were governed

by the public concern analysis and balancing test set out in

Pickering v. Board of Education, 391 U.S. 563 (1968), and

Connick v. Myers, 461 U.S. 138 (1983). Garcetti, however,

changed the law. The plaintiff in Garcetti was a deputy

district attorney who had written a memorandum concluding

that a police affidavit supporting a search warrant application

contained serious misrepresentations. Garcetti, 547 U.S. at

413–14. The plaintiff contended that his employer retaliated

against him in violation of the First Amendment for having

written and then defended the memorandum. Id. at 415. The

Court held in Garcetti that “when public employees make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and

14 DEMERS V. AUSTIN

the Constitution does not insulate their communications from

employer discipline.” Id. at 421.

However, Garcetti left open the possibility of an

exception. In response to a concern expressed by Justice

Souter in dissent, the Court reserved the question whether its

holding applied to “speech related to scholarship or

teaching.” Id. at 425. Justice Souter had expressed concern

about the potential breadth of the Court’s rationale, writing,

“I have to hope that today’s majority does not mean to

imperil First Amendment protection of academic freedom in

public colleges and universities, whose teachers necessarily

speak and write ‘pursuant to . . . official duties.’” Id. at 438

(Souter, J., dissenting) (alteration in original).

Demers presents the kind of case that worried Justice

Souter. Under Garcetti, statements made by public

employees “pursuant to their official duties” are not protected

by the First Amendment. 547 U.S. at 421. But teaching and

academic writing are at the core of the official duties of

teachers and professors. Such teaching and writing are “a

special concern of the First Amendment.” Keyishian v. Bd.

of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603

(1967). We conclude that if applied to teaching and academic

writing, Garcetti would directly conflict with the important

First Amendment values previously articulated by the

Supreme Court. One of our sister circuits agrees. See Adams

v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 562

(4th Cir. 2011) (“We are . . . persuaded that Garcetti would

not apply in the academic context of a public university as

represented by the facts of this case.”).

DEMERS V. AUSTIN 15

The Supreme Court has repeatedly stressed the

importance of protecting academic freedom under the First

Amendment. It wrote in Keyishian:

Our Nation is deeply committed to

safeguarding academic freedom, which is of

transcendent value to all of us and not merely

to the teachers concerned. That freedom is

therefore a special concern of the First

Amendment, which does not tolerate laws that

cast a pall of orthodoxy over the classroom.

“The vigilant protection of constitutional

freedoms is nowhere more vital than in the

community of American schools.”

Id. at 603 (quoting Shelton v. Tucker, 364 U.S. 479, 487

(1960)). It had previously written to the same effect in

Sweezy v. New Hampshire:

The essentiality of freedom in the community

of American universities is almost self-

evident. . . . To impose any strait jacket upon

the intellectual leaders in our colleges and

universities would imperil the future of our

Nation. . . . Scholarship cannot flourish in an

atmosphere of suspicion and distrust.

Teachers and students must always remain

free to inquire, to study and to evaluate, to

gain new maturity and understanding;

otherwise our civilization will stagnate and

die.

354 U.S. 234, 250 (1957). More recently, the Court wrote in

Grutter v. Bollinger, “We have long recognized that, given

16 DEMERS V. AUSTIN

the important purpose of public education and the expansive

freedoms of speech and thought associated with the university

environment, universities occupy a special niche in our

constitutional tradition.” 539 U.S. 306, 329 (2003); see also

Rust v. Sullivan, 500 U.S. 173, 200 (1991) (“[T]he university

is . . . so fundamental to the functioning of our society that the

Government’s ability to control speech within that sphere by

means of conditions attached to the expenditure of

Government funds is restricted by the vagueness and

overbreadth doctrines of the First Amendment.”).

We conclude 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. We hold that academic

employee speech not covered by Garcetti is protected under

the First Amendment, using the analysis established in

Pickering. The Pickering test has two parts. First, the

employee must show that his or her speech addressed

“matters of public concern.” Pickering, 391 U.S. at 568; see

Connick, 461 U.S. at 146. Second, the employee’s interest

“in commenting upon matters of public concern” must

outweigh “the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees.” Pickering, 391 U.S. at 568; see

Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1048 (6th

Cir. 2001); Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.

2000).

In Pickering, a public high school teacher wrote a letter

to a local newspaper complaining about budgetary decisions

made by the school district. Pickering, 391 U.S. at 564. The

Court wrote that teachers have a First Amendment right “to

comment on matters of public interest in connection with the

DEMERS V. AUSTIN 17

operation of the public schools in which they work,” but that,

at the same time, the rights of public school teachers are not

independent of the interest of their employing school district.

Id. at 568. The task of a court is “to arrive at a balance

between the interests of the teacher, as a citizen, . . . and the

interest of the State, as an employer.” Id. The Court held in

Pickering that “the question whether a school system requires

additional funds is a matter of legitimate public concern,” id.

at 571, and that the school district did not have a sufficient

interest in preventing the teacher from speaking out on this

question to deprive him of his First Amendment rights. Id. at

572–74.

In Connick v. Myers, the Court returned to the question

whether an employee’s speech addressed a matter of public

concern. The employee in Connick was an assistant district

attorney who objected to being transferred to prosecute cases

in a different section of the criminal court. 461 U.S. at 140.

She circulated a questionnaire within the district attorney’s

office raising questions about “office transfer policy, office

morale, the need for a grievance committee, the level of

confidence in supervisors, and whether employees felt

pressured to work in political campaigns.” Id. at 141. The

Court held that all but one of the topics in the questionnaire

were not matters of public concern. With the exception of the

question about pressure to work on political campaigns, the

“questions reflect[ed] one employee’s dissatisfaction with a

transfer and an attempt to turn that displeasure into a cause

célèbre.” Id. at 148. The Court held that the question about

political campaigns, however, addressed “a matter of interest

to the community upon which it is essential that public

employees be able to speak out freely without fear of

retaliatory dismissal.” Id. at 149.

18 DEMERS V. AUSTIN

The Court in Connick refined the Pickering analysis in

two ways. First, perhaps recognizing the artificiality of

characterizing an employee’s speech about matters relating to

his employment as merely speech “as a citizen,” the Court did

not insist on characterizing the Connick plaintiff’s protected

question about political campaigns as speech “as a citizen.”

While her question may in some sense have been speech as

a citizen, it was much more directly and obviously speech as

an employee. Not only did the employee circulate her

questionnaire exclusively within her workplace. In addition,

the clear implication from the record is that she was herself

subject to pressure to work on campaigns, and that her fellow

employees, to whom she sent the questionnaire, were subject

to that same pressure. Second, the Court emphasized the

subtlety of the balancing process, writing that “the State’s

burden in justifying a particular [discipline] varies depending

upon the nature of the employee’s expression. Although such

particularized balancing is difficult, the courts must reach the

most appropriate possible balance of the competing

interests.” Id. at 150.

The Pickering balancing process in cases involving

academic speech is likely to be particularly subtle and

“difficult.” Id. The nature and strength of the public interest

in academic speech will often be difficult to assess. For

example, a long-running debate in university English

departments concerns the literary “canon” that should have

pride of place in the department’s curriculum. This debate

may seem trivial to some. But those who conclude that the

composition of the canon is a relatively trivial matter do not

take into account the importance to our culture not only of the

study of literature, but also of the choice of the literature to be

studied. Analogous examples could readily be drawn from

philosophy, history, biology, physics, or other disciplines.

DEMERS V. AUSTIN 19

Recognizing our limitations as judges, we should hesitate

before concluding that academic disagreements about what

may appear to be esoteric topics are mere squabbles over

jobs, turf, or ego.

The nature and strength of the interest of an employing

academic institution will also be difficult to assess. Possible

variations are almost infinite. For example, the nature of

classroom discipline, and the part played by the teacher or

professor in maintaining discipline, will be different

depending on whether the school in question is a public high

school or a university, or on whether the school in question

does or does not have a history of discipline problems.

Further, the degree of freedom an instructor should have in

choosing what and how to teach will vary depending on

whether the instructor is a high school teacher or a university

professor. Still further, the evaluation of a professor’s writing

for purposes of tenure or promotion involves a judgment by

the employing university about the quality of what he or she

has written. Ordinarily, such a content-based judgment is

anathema to the First Amendment. But in the academic

world, such a judgment is both necessary and appropriate.

Here too, recognizing our limitations, we should hesitate

before concluding that we know better than the institution

itself the nature and strength of its legitimate interests.

With the foregoing in mind, we turn to what Demers

wrote.

C. Ivory Tower

We put to one side Demers’s Ivory Tower. For reasons

best known to himself, Demers did not put the draft

introduction or any of the draft chapters of Ivory Tower into

20 DEMERS V. AUSTIN

the record. The only information we have about those drafts

are the brief descriptions Demers provided when he applied

for sabbatical and when he described his academic activities

for purposes of his annual reviews, and the acknowledgments

by Austin and McSweeney that they saw or read parts of

those drafts. There is only one sentence in Demers’s

descriptions of his drafts that could conceivably have

prompted any adverse reaction from defendants. In his

application for sabbatical, Demers wrote, “The book contains

information that is critical of the academy, including some

events at Washington State University.” However, Demers

described no specific “events” at WSU. This is pretty thin

gruel. Even assuming for the moment that defendants

retaliated against Demers, he has provided insufficient

information about the drafts of Ivory Tower to support a claim

that any such retaliation resulted from those drafts. We

therefore conclude that Demers has failed to establish a First

Amendment violation with respect to Ivory Tower.

D. The Plan

1. “Speech Related to Scholarship or Teaching” Under

Garcetti

We conclude that The 7-Step Plan prepared by Demers in

connection with his official duties as a faculty member of the

Murrow School was “related to scholarship or teaching”

within the meaning of Garcetti. See 547 U.S. at 425. The

basic thrust of the Plan may be understood from its first

paragraphs:

The relationship between mass

communication programs (e.g., journalism,

broadcasting, public relations, advertising)

DEMERS V. AUSTIN 21

and the academy in general has always been a

rocky one. The first print journalism

programs emerged in the early 1900s, mostly

at Midwestern universities and colleges, and

were staffed largely with teachers who had

professional backgrounds (former journalists

and editors). As the years passed, increasing

pressure was placed on journalism and other

related programs (broadcasting, public

relations, advertising) to “scholarize” their

faculty — that is, to hire faculty who had

earned Ph.D. degrees in the social sciences

and conduct research. At the same time, the

programs began hiring fewer teachers with

professional experience.

As the number of Ph.D.s increased, so did

the tension within these departments. Some

historians have referred to this as the era of

the “green eyeshades” versus the “chi-

squares.” Not unexpectedly, at larger

research-oriented universities, the Ph.D.s won

the battle and today most of the faculty

teaching in mass communication programs at

research-oriented universities have the Ph.D.

Needless to say, this turn of events

alienated many professionals and media-

related businesses. Students were required to

take more theory and conceptual courses and

fewer skills-based courses, such as writing

and reporting. Professionals complained more

and more that the writing skills of university

graduates were declining. The close

22 DEMERS V. AUSTIN

relationship universities once had with the

professional community was disappearing.

The Plan proposed seven steps that would increase the

influence of professionals and reduce the influence of Ph.Ds

within the Murrow School. Those steps were:

1. Separate the mass communication program

from the communication studies program at

WSU — i.e., create two separate units. . . .

2. Hire a director of the Edward R. Murrow

School of Communication who has a strong

professional background. . . .

3. Create an Edward R. Murrow Center for

Media Research that conducts joint research

projects with the professional community. . . .

4. Give professionals an active (rather than

the current passive) role in the development of

the curriculum in the School. . . .

5. Give professional faculty a more active

role in the development of the undergraduate

curriculum for mass communication

students. . . .

6. Seek national accreditation for the “new”

mass communication program. . . .

7. Hire more professional faculty with

substantial work experience. . . .

DEMERS V. AUSTIN 23

In Demers’s view, the teaching of mass communications

had lost a critical connection to the real world of professional

communicators. His Plan, if implemented, would restore that

connection and would, in his view, greatly improve the

education of mass communications students at the Murrow

School. It may in some cases be difficult to distinguish

between what qualifies as speech “related to scholarship or

teaching” within the meaning of Garcetti. But this is not such

a case. The 7-Step Plan was not a proposal 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. Instead, it was a proposal to

implement a change at the Murrow School that, if

implemented, would have substantially altered the nature of

what was taught at the school, as well as the composition of

the faculty that would teach it.

2. Matter of Public Concern Under Pickering

The first step in determining whether the Plan is protected

under the First Amendment is to determine whether it

addressed a matter of public concern. Whether speech is a

matter of public concern under Pickering is a matter of law

that we review de novo. Berry v. Dep’t of Soc. Servs.,

447 F.3d 642, 648 (9th Cir. 2006). The plaintiff bears the

burden of showing that his or her speech addresses an issue

of public concern. Eng v. Cooley, 552 F.3d 1062, 1071 (9th

Cir. 2009).

“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, 422 (9th Cir. 1995) (quoting

24 DEMERS V. AUSTIN

Connick, 461 U.S. at 146). The “essential question is whether

the speech addressed matters of public as opposed to personal

interest.” Desrochers v. City of San Bernardino, 572 F.3d

703, 709 (9th Cir. 2009) (internal quotation marks and

citation omitted). Public interest is “defined broadly.” Ulrich

v. City & Cnty. of S.F., 308 F.3d 968, 978 (9th Cir. 2002).

We have adopted a “liberal construction of what an issue of

public concern is under the First Amendment.” Roe v. City

& Cnty. of S.F., 109 F.3d 578, 586 (9th Cir. 1997) (internal

quotation marks omitted). We consider “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. Desrochers, 572 F.3d at 710.

We begin by noting two obvious points. First, not all

speech by a teacher or professor addresses a matter of public

concern. Teachers and professors, like other public

employees, speak and write on purely private matters. If a

publicly employed professor speaks or writes about what is

“properly viewed as essentially a private grievance,” Roe,

109 F.3d at 585, the First Amendment does not protect him

or her from any adverse reaction. Second, protected

academic writing is not confined to scholarship. Much

academic writing is, of course, scholarship. But academics,

in the course of their academic duties, also write memoranda,

reports, and other documents addressed to such things as a

budget, curriculum, departmental structure, and faculty

hiring. Depending on its scope and character, such writing

may well address matters of public concern under Pickering.

Indeed, in Pickering itself the teacher’s protected letter to the

newspaper addressed operational and budgetary concerns of

the school district. The Court in Pickering noted that the

letter addressed “the preferable manner of operating the

school system,” which “clearly concerns an issue of general

DEMERS V. AUSTIN 25

public interest.” 391 U.S. at 571. Further, the Court wrote

that “the question whether a school system requires additional

funds is a matter of legitimate public concern.” Id.

Demers described his Plan on its cover as a “7-Step Plan

for Making the Edward R. Murrow School of Communication

Financially Independent.” The first page of the Plan gave an

abbreviated history of “mass communications programs . . .

and the academy in general,” and placed the communications

program at WSU in the broader context of similar programs

at other universities. The second page recommended seven

steps for improving the communications program at WSU.

Demers’s Plan did not focus on a personnel issue or internal

dispute of no interest to anyone outside a narrow

“bureaucratic niche.” Tucker v. Cal. Dep’t of Educ., 97 F.3d

1204, 1210 (9th Cir. 1996) (citation omitted); see Desrochers,

572 F.3d at 713. Nor did the Plan address the role of

particular individuals in the Murrow School, or voice

personal complaints. Rather, the Plan made broad proposals

to change the direction and focus of the School. See Schrier

v. Univ. of Colo., 427 F.3d 1253, 1263 (10th Cir. 2005)

(holding that a professor’s critiques of a plan to move the

medical school “addressing the use of public funds and

regarding the objectives, purposes and mission of the

University of Colorado and its medical school fall well within

the rubric of ‘matters of public concern’”). The importance

of the proposed steps in Demers’s Plan is suggested by the

fact that the Murrow School had appointed a “Structure

Committee,” of which Demers was a member, to address

some of the very issues addressed in Demers’s Plan.

The manner in which the Plan was distributed reinforces

the conclusion that it addressed matters of public concern. If

an employee expresses a grievance to a limited audience,

26 DEMERS V. AUSTIN

such circulation can suggest a lack of public concern. See

Desrochers, 572 F.3d at 713–14. But limited circulation is

not, in itself, determinative, as may be seen in Connick where

the questionnaire was distributed only within the employee’s

office. See 461 U.S. at 141. Here, Demers sent the Plan to

the President and Provost of WSU, to members of the

Murrow School’s Professional Advisory Board, to other

faculty members, to alumni, to friends, and to newspapers.

He posted the Plan on his website, making it available to the

public.

There may be some instances in which speech about

academic organization and governance does not address

matters of public concern. See, e.g., Brooks v. Univ. of Wis.

Bd. of Regents, 406 F.3d 476, 480 (7th Cir. 2005) (objections

by professors against the closing of their laboratories and

study programs represented “a classic personnel struggle —

infighting for control of a department — which is not a matter

of public concern”); Clinger v. N.M. Highlands Univ., Bd. of

Regents, 215 F.3d 1162, 1166 (10th Cir. 2000) (no matter of

public concern where professor publicly disagreed with the

Board of Trustees “on the internal process they followed in

selecting a president and reorganizing the University”). But

this is not such a case. Demers’s Plan contained serious

suggestions about the future course of an important

department of WSU, at a time when the Murrow School itself

was debating some of those very suggestions. We therefore

conclude that the Plan addressed a matter of public concern

within the meaning of Pickering.

E. Remaining Issues on the Merits

Based on its holding that Demers’s Plan did not address

a matter of public concern, the district court granted summary

DEMERS V. AUSTIN 27

judgment to defendants. As to the three questions it would

have had to reach had it held otherwise, the district court

wrote that there were questions of material fact. Those

questions were whether defendants had a sufficient interest in

controlling or sanctioning Demers’s circulation of the Plan to

deprive it of First Amendment protection; whether, if the Plan

was protected speech under the First Amendment, its

circulation was a substantial or motivating factor in any

adverse employment action defendants might have taken; and

whether defendants would have taken such employment

action absent the protected speech. See Anthoine v. N. Cent.

Cntys. Consortium, 605 F.3d 740, 748 (9th Cir. 2010). The

district court may address those questions, as appropriate, on

remand.

F. Qualified Immunity and Prospective Relief

Defendants are entitled to qualified immunity, even if

they violated Demers’s First Amendment rights, if they

reasonably could have believed that their conduct was lawful

“in light of clearly established law and the information [that

they] possessed.” Cohen v. San Bernardino Valley Coll.,

92 F.3d 968, 973 (9th Cir. 1996) (alteration in original)

(quoting Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.

1989)). A right is clearly established when the contours of

the right are “‘sufficiently clear’ that every ‘reasonable

official would have understood that what he is doing violates

that right.’” Karl v. City of Mountlake Terrace, 678 F.3d

1062, 1073 (9th Cir. 2012) (quoting Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011)).

Until the decision in this case, our circuit has not

addressed the application of Garcetti to teaching and

academic writing. In Adams, after the Fourth Circuit held

28 DEMERS V. AUSTIN

that Garcetti did not apply, it considered whether defendants

had qualified immunity in light of “the uncertain state of the

law in the area of what protection should be afforded to

public university teacher’s speech following Garcetti.”

Adams, 640 F.3d at 565. The court held that the professor’s

First Amendment rights were clearly established in the Fourth

Circuit, and it denied qualified immunity. Id. at 565–66; see

also Karl, 678 F.3d at 1074 (denying qualified immunity in

a Garcetti case in light of clear in-circuit precedent).

However, because there is no Ninth Circuit law on point to

inform defendants about whether or how Garcetti might

apply to a professor’s academic speech, we cannot say that

the contours of the right in this circuit were “sufficiently clear

that every reasonable official would have understood” that

this conduct violated that right. Id. at 1073 (internal

quotation marks omitted). We therefore hold that defendants

are entitled to qualified immunity.

Qualified immunity of course does not preclude

injunctive relief. Should the district court determine that

Demers’s First Amendment rights were violated, it may still

grant injunctive relief to the degree it is appropriate.

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,

527 (9th Cir. 1989) (“Qualified immunity is an affirmative

defense to damage liability; it does not bar actions for

declaratory or injunctive relief.” (citing Harlow v. Fitzgerald,

457 U.S. 800, 815 (1982))).

Conclusion

We hold that there is an exception to Garcetti for teaching

and academic writing. We affirm the district court’s

determination that Demers prepared and circulated his Plan

pursuant to official duties, but we reverse its determination

DEMERS V. AUSTIN 29

that the Plan does not address matters of public concern. We

hold that defendants are entitled to qualified immunity. We

remand for further proceedings consistent with this opinion.

The parties shall bear their own costs.

AFFIRMED in part, REVERSED in part, and

REMANDED.