Amicus Curiae Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District

No. 21-418

In The

Supreme Court of the United States

JOSEPH A. KENNEDY,

Petitioner,

v.

BREMERTON SCHOOL DISTRICT,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS IN

EDUCATION IN SUPPORT OF PETITIONER

DARPANA M. SHETH

Counsel of Record

WILL CREELEY

FOUNDATION FOR

INDIVIDUAL RIGHTS IN

EDUCATION

510 Walnut Street

Suite 1250

Philadelphia, PA 19106

(215) 717-3473

darpana.sheth@thefire.org

will@thefire.org

GABRIEL WALTERS

FOUNDATION FOR

INDIVIDUAL RIGHTS IN

EDUCATION

700 Pennsylvania Ave., SE

Suite 340

Washington, DC 20003

(215) 717-3473

gabe.walters@thefire.org

Counsel for Amicus Curiae

i

QUESTIONS PRESENTED

1. Whether a public-school employee who says a

brief, quiet prayer by himself while at school

and visible to students is engaged in government speech that lacks any First Amendment

protection.

2. Whether, assuming that such religious expression is private and protected by the Free Speech

and Free Exercise Clauses, the Establishment

Clause nevertheless compels public schools to

prohibit it.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES .......................................iv

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................4

I.

Academic freedom is “a special concern of

the First Amendment”—and it requires

breathing room. ....................................................4

A. This Court has long recognized the

importance of protecting academic

freedom..............................................................4

B. In Garcetti, this Court recognized its

public-employee speech exception to the

First Amendment can imperil academic

freedom of public university faculty. ...............6

C. Four Circuits have declined to apply

Garcetti’s exception to public-faculty

speech

that

implicates

academic

freedom..............................................................7

II. If the Ninth Circuit’s ruling is allowed to

stand,

amicus

FIRE’s

experience

demonstrates that public university faculty

will be censored...................................................10

iii

A. Restrictions on grade-school speech risk

misapplication to higher education................10

B. Amicus FIRE’s experience demonstrates

that faculty members face punishment

for

controversial

or

challenging

classroom expression, properly protected

by academic freedom. .....................................13

III. Public university faculty must be able to

vindicate their rights by exposing

censorship to public scrutiny. ............................16

A. The

Ninth

Circuit

dangerously

suggested that a vigorous public defense

of First Amendment Rights may justify

discipline. ........................................................17

B. In defending public university faculty,

amicus FIRE relies on public attention to

vindicate speech rights. ..................................22

CONCLUSION ..........................................................31

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Adams v. Trs. of the Univ. of N.C.-Wilmington,

640 F.3d 550 (4th Cir. 2011)................................7, 8

Austin v. Univ. of Fla. Bd. of Trs.,

No. 1:21cv184-MW/GRJ, 2022 U.S. Dist.

LEXIS 11733 (N.D. Fla. Jan. 21, 2022) .......... 25, 26

Bd. of Educ. of Westside Cmty. Schs. v. Mergens,

496 U.S. 226 (1990) ................................................19

Buchanan v. Alexander,

919 F.3d 847, 852 (5th Cir. 2019) ........................8, 9

Demers v. Austin,

746 F.3d 402 (9th Cir. 2014)....................................8

Doe v. Valencia Coll. Bd. of Trs.,

838 F.3d 1207 (11th Cir. 2016)..............................10

Edwards v. Aguillard,

482 U.S. 578, (1987) ...............................................11

Garcetti v. Ceballos,

547 U.S. 410 (2006) .......................................... 2, 6, 7

Grutter v. Bollinger,

539 U.S. 306 (2003) ..................................................7

Hosty v. Carter,

412 F.3d 731 (7th Cir. 2005)..................................10

v

Kennedy v. Bremerton Sch. Dist.,

991 F.3d 1004 (9th Cir. 2021).................... 11, 16, 18

Kennedy v. Bremerton Sch. Dist.,

4 F.4th 910 (9th Cir. 2021) ....................................19

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ........................................ passim

Mahanoy Area Sch. Dist. v. B.L.,

141 S. Ct. 2038 (2021) ...................................... 10, 11

Mayer v. Monroe Cnty. Cmty. Sch. Corp.,

474 F.3d 477 (7th Cir. 2007)..................................12

Melynk v. Teaneck Bd. of Educ.,

No. 16-0188, 2016 WL 6892077 (D.N.J. Nov.

22, 2016) ........................................................... 12, 13

Meriwether v. Hartop,

992 F.3d 492, 507 (6th Cir. 2021) ............................9

NAACP v. Button,

371 U.S. 415 (1963) ..................................................5

Pickering v. Bd. of Educ.,

391 U.S. 563 (1968) ..................................................8

Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ..................................................5

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) ............................................ 5, 22

Sweezy v. New Hampshire,

354 U.S. 234 (1957) ........................................ 2, 5, 16

vi

Ward v. Polite,

667 F.3d 727 (6th Cir. 2012)..................................10

Widmar v. Vincent,

454 U.S. 263 (1981) ................................................22

Statutory Provisions:

Iowa Code § 261H.8 ...................................................26

Other Authorities:

A theater professor wasn’t sufficiently outraged

about a list of names on a whiteboard. The

college’s next act: probable termination., FIRE

(Oct. 20, 2021) ........................................................28

Academic freedom at The New School? Not if you

quote an iconic black writer., FIRE (Aug. 7,

2019) .......................................................................30

Adam Steinbaugh, SAVE FERRIS PROF: Before

it suspended tenured professor over profane

syllabus skit, Ferris State praised it., FIRE

(Jan. 20, 2022)........................................................15

After FIRE turns up the heat, Iowa State revises

unconstitutional guidance for instructors to

self-censor, FIRE (Aug. 11, 2021) ..........................27

Brittany Bernstein, A Theater Professor

Suggested Students Should Have Thicker

Skins, So They Demanded He Be Fired, Nat’l

Rev. (Nov. 7, 2021) .................................................29

vii

Catherine Rampell, What Milo Yiannopoulos

and Elizabeth Warren have in common, Wash.

Post (Feb. 9, 2017) .................................................17

Class Action Compl. for Injunctive and

Declaratory Relief, Fla. Rising Together v.

Lee, No. 4:21-cv-00201-AW-MJF (N.D. Fla.

filed May 17, 2021) ................................................23

Colleen Flaherty, N-Word at the New School,

Inside Higher Ed (Aug. 7, 2019) ............................30

Daniel Burnett, A Marshall University professor

criticized unmasked Trump supporters. Then

censorship spread., FIRE (Jan. 13, 2022) ....... 13, 14

Danielle Ivanov, UF professors could testify in

voting rights case if they are unpaid,

spokeswoman says, Gainesville Sun (Oct. 31,

2021) .......................................................................24

Emily Ekins, The State of Free Speech and

Tolerance in America: Attitudes about Free

Speech, Campus Speech, Religious Liberty,

and Tolerance of Political Expression, Cato

Institute (Oct. 31, 2017) .........................................17

Eugene Volokh, Theater Prof Facing Possible

Firing for Not Being Sufficiently Outraged,

Reason (Nov. 9, 2021) ............................................28

Eugene Volokh, Univ. of San Diego Law School

Investigating Professor for Post Critical of

China, Reason (March 20, 2021) ...........................21

Fighting rights violations by going public, FIRE .....23

viii

FIRE calls on Iowa State to reverse

unconstitutional implementation of critical

race theory law, FIRE (July 27, 2021) ...................27

FIRE, Iowa Rep. Mary Lynn Wolfe Comments on

HF802, March 16, 2021, YouTube (July 27,

2021) .......................................................................26

House File (HF) 802 Information, Univ. of Iowa

(July 27, 2021)........................................................26

Iowa House File 802 – Requirements Related to

Racism and Sexism Trainings, Iowa State

Univ. (Aug. 5, 2021) ...............................................27

James Baldwin, The Creative Process, in

Creative America (1962) ........................................29

John Henderson, Protest on the street and in

writing show continued concern at UF over

academic freedom, Gainesville Sun (Nov. 12,

2021) .......................................................................25

Käri Knutson, Sifting and winnowing turns 125:

The tumultuous story of three little words,

Univ. of Wisconsin–Madison News (Sept. 17,

2019) .......................................................................21

Keith E. Whittington, The intellectual freedom

that made public colleges great is under

threat, Wash. Post (Dec. 15, 2021) ........................25

Letter from Aaron Terr, Program Officer, FIRE,

to Dr. W. Kent Fuchs, President, University of

Florida (Nov. 1, 2021) ............................................25

ix

Louis D. Brandeis, What Publicity Can Do,

Harper’s Weekly (Dec. 20, 1913) ..................... 22, 23

Michael Levenson, Linfield University Fires

Professor Who Spoke Out About Misconduct

Cases, N.Y. Times (May 1, 2021)...........................21

Michael Wines, Florida Bars State Professors

From Testifying in Voting Rights Case, N.Y.

Times (Oct. 29, 2021) .............................................24

Michael Wines, University of Florida Reverses

Course to Allow Professors to Testify Against

State, N.Y. Times (Nov. 5, 2021) ...........................25

Mike Schneider, University of Florida prohibits

professors from testifying, Associated Press

(Oct. 30, 2021) ........................................................24

Neil Vigdor, Georgetown Suspends Lecturer Who

Criticized Vow to Put Black Woman on Court,

N.Y. Times (Jan. 31, 2022) ....................................20

Phillip Sitter, Free speech advocacy group

critiques ISU guidance on divisive concepts

law as too broad — and it's not alone, Ames

Trib. (Aug. 4, 2021) ................................................27

Sabrina Conza, Ferris State cannot punish

professor for comedic — and now viral —

video jokingly referring to students as

‘cocksuckers’ and ‘vectors of disease’, FIRE

(Jan. 17, 2022)........................................................14

x

Sabrina Conza, FIRE demands answers from

Cypress College over cancelled professor, FIRE

(May 14, 2021) .......................................................15

Talia Richman, Collin College again pushes out

professor critical of administration’s handling

of COVID-19, free speech, Dall. Morning News

(Feb. 26, 2021)........................................................20

Talia Richman, Former Collin College professor

who claimed retaliation over tweets resolves

lawsuit with school, Dall. Morning News (Jan.

25, 2022) .................................................................20

University Statement on Academic Freedom and

Free Speech, Univ. of Fla. ......................................24

VICTORY: Professor exonerated for quoting

iconic black writer at The New School, FIRE

(Aug. 16, 2019) .......................................................30

1

INTEREST OF AMICUS CURIAE1

The Foundation for Individual Rights in Education

(FIRE) is a nonpartisan, nonprofit organization dedicated to promoting and protecting civil liberties at our

nation’s institutions of higher education. Since its

founding in 1999, FIRE has successfully defended the

rights of tens of thousands of students and faculty at

colleges and universities nationwide. FIRE believes

that if our educational institutions are to best prepare

students for success in our democracy, the law must

remain unequivocally on the side of robust free-speech

protections for students and faculty.

FIRE has a direct interest in this case because this

Court’s jurisprudence on government-employee

speech impacts the public university faculty FIRE defends. It files this brief to argue that the Ninth Circuit’s ruling threatens public faculty’s rights to academic freedom and freedom of expression.

SUMMARY OF ARGUMENT

This case requires the Court to revisit the contested boundary between the expressive rights of public employees and the interests of the government in

efficiency as an employer. While the present matter

concerns an assistant football coach at a public high

school, the Court’s decision here may impact other

public employees involved in education, including

1 Pursuant to Rule 37.6, amicus FIRE affirms that no counsel for a party authored this brief in whole or in part, and that

no person other than amicus or their counsel contributed money

intended to fund preparing or submitting this brief. Counsel for

both parties have consented to the filing of this brief.

2

public university faculty. Because “[o]ur Nation is

deeply committed to safeguarding academic freedom,

which is of transcendent value to all of us and not

merely to the teachers involved,” matters that implicate the speech of public university faculty require

particular judicial attention and care. Keyishian v.

Bd. of Regents, 385 U.S. 589, 603 (1967).

Academic freedom—the right of university faculty

to speak freely about matters related to scholarship

and teaching—requires vigilant protection. “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.” Sweezy v. New Hampshire, 354 U.S. 234, 250

(1957). Accordingly, this Court has previously recognized the particular need to account for the academic

freedom rights of public university faculty when addressing the expressive rights of government employees. In Garcetti v. Ceballos, this Court reserved the

question of whether its holding “would apply in the

same manner to a case involving speech related to

scholarship or teaching.” 547 U.S. 410, 425 (2006).

Several circuits have since answered that question

outright in favor of protecting academic freedom. The

United States Courts of Appeals for the Fourth, Fifth,

Sixth, and Ninth Circuits have explicitly declined to

apply Garcetti’s broad rule to the academic expression

of public university faculty. See infra Section I.C.

But here, the Ninth Circuit’s ruling intrudes upon

the expressive rights of government employees by conflating Coach Kennedy’s expressions of faith with the

official performance of his job duties. If allowed to

stand, the Ninth Circuit’s willingness to convert the

3

coach’s prayer into government speech—i.e., speech

that the government could prohibit and punish—

would set a dangerous precedent not only for gradeschool teachers, but even more for professors at our

public institutions of higher education. Because public

university faculty make their living by engaging students and colleagues in discussion, they necessarily

engage in job-related expression that may not communicate the views or bear the endorsement of their

government employer. Allowing punishment for a professor’s momentary asides or brief expressions of personal opinion, for example, would sound the death

knell for academic freedom.

Compounding the threat posed by the decision below, courts often misapply this Court’s rulings involving expression by K–12 teachers—who in the years

since Garcetti have seen their expressive rights curtailed in the classroom—to cases concerning higher

education. See infra Section II.A. And amicus FIRE’s

work demonstrates that university faculty already

face regular discipline and censorship for controversial classroom expression. If allowed to stand, the

Ninth Circuit’s ruling would worsen the problem, giving public universities a freer hand to punish faculty

for the exercise of their academic freedom and expressive rights.

The Ninth Circuit further erred by suggesting that

Coach Kennedy’s “pugilistic” defense of his First

Amendment rights rendered his private expression

more susceptible to misinterpretation as the speech of

his employer, and thus more readily subject to censorship and punishment. Courts must not allow government employers to penalize employees for publicly

4

advocating for their First Amendment rights. In amicus FIRE’s experience defending public university faculty, vindication of rights often relies upon vocal criticism in the court of public opinion. After all, colleges

and universities are loath to publicly defend censorship. This Court must make clear that government

employees, and particularly public university faculty,

do not imperil their First Amendment rights by seeking to vindicate them.

ARGUMENT

I.

Academic freedom is “a special concern of

the First Amendment”—and it requires

breathing room.

While this case concerns an assistant football

coach at a public high school, its resolution requires

the Court to revisit the First Amendment’s protection

of the expressive rights of all government employees—

including public university faculty. In so doing, the

Court must take care to recognize that when faculty

members speak about matters related to scholarship

and teaching, their speech is protected by academic

freedom, “a special concern of the First Amendment.”

Keyishian, 385 U.S. at 603.

A. This Court has long recognized the

importance of protecting academic

freedom.

Academic freedom protects the rights of public university faculty members to speak freely about matters

related to scholarship and teaching—and this Court

has recognized the importance of protecting it in decisions dating back more than sixty years. “To impose

5

any strait jacket upon the intellectual leaders in our

colleges and universities,” the Sweezy Court wrote in

1957, “would imperil the future of our Nation.” 354

U.S. at 250. Indeed, “[t]he Nation’s future depends

upon leaders trained through wide exposure to [a] robust exchange of ideas,” and the college classroom is

“peculiarly the ‘marketplace of ideas.’” Keyishian, 385

U.S. at 603.

Protecting the rights of scholars and professors to

speak freely ensures the continued vibrancy of “the vital centers for the Nation’s intellectual life, its college

and university campuses.” Rosenberger v. Rector &

Visitors of the Univ. of Va., 515 U.S. 819, 836 (1995).

This Court has consistently recognized “[o]ur national

commitment to the safeguarding of these freedoms

within university communities.” Regents of the Univ.

of Cal. v. Bakke, 438 U.S. 265, 312 (1978).

Preserving this commitment to academic freedom

requires particular judicial care. “Because First

Amendment freedoms need breathing space to survive,” NAACP v. Button, 371 U.S. 415, 433 (1963), the

Court must account for academic freedom when deciding cases that might not immediately seem to implicate it—for example, cases involving assistant high

school football coaches, like here, or deputy district attorneys, like in Garcetti.

6

B. In Garcetti, this Court recognized

its public-employee speech exception to the First Amendment can imperil academic freedom of public

university faculty.

In Garcetti, this Court carved out an exception to

First Amendment protection for public-employee

speech, and recognized that exception can imperil the

academic freedom of public university faculty. 547

U.S. at 425. The plaintiff was a deputy district attorney who alleged that he was terminated for writing a

memorandum concerning inaccuracies in an affidavit

used to obtain a search warrant. Id. at 413–15. The

Court held “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.” Id. at 421.

The Court’s holding in Garcetti impacts approximately twenty million public employees in the United

States, ranging from desk clerks to microbiologists,

from police officers to agency administrators. See

United States Census Bureau, Annual Survey of Public Employment & Payroll, About, https://www.census.gov/programs-surveys/apes/about.html (last visited Feb. 28, 2022). But of this varied and sprawling

workforce, the Garcetti Court recognized only one set

of employees that merited careful consideration under

the First Amendment: public college and university

professors. 547 U.S. at 425.

In dissent, Justice Souter warned that Garcetti’s

holding could “imperil First Amendment protection of

academic freedom in public colleges and universities,

7

whose teachers necessarily speak and write ‘pursuant

to . . . official duties.’” Id. at 438 (Souter, J., dissenting) (quoting Grutter v. Bollinger, 539 U.S. 306, 329

(2003)). Responding to Justice Souter’s concern, the

Garcetti majority explicitly acknowledged that its

holding “may have important ramifications for academic freedom, at least as a constitutional value,” and

thus chose not to “decide whether the analysis we conduct today would apply in the same manner to a case

involving speech related to scholarship or teaching.”

Id. at 425.

The Court reserved the question of whether Garcetti’s analysis properly applies to public university

faculty, but several circuits have since answered it

outright in favor of protecting academic freedom.

C. Four circuits have declined to apply

Garcetti’s exception to public-faculty speech that implicates academic freedom.

Recognizing the incompatibility of Garcetti’s “official duties” rule with the First Amendment’s protection of academic freedom, the Fourth, Fifth, Sixth, and

Ninth Circuits have held that Garcetti does not apply

to public-faculty speech related to scholarship or

teaching.

In Adams v. Trustees of the University of North

Carolina-Wilmington, the Fourth Circuit held that

“Garcetti would not apply” because the facts concerned “the academic context of a public university.”

640 F.3d 550, 562 (4th Cir. 2011). In Adams, the plaintiff was a professor who alleged he was retaliated

against for the views he expressed in his scholarship

8

and teaching. Id. at 556. The Fourth Circuit explained

that “[a]pplying Garcetti to the academic work of a

public university faculty member under the facts of

this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment.”

Id. at 564. Accordingly, the Fourth Circuit held that

Garcetti did not apply, and it analyzed the plaintiff’s

speech under Pickering v. Board of Education, 391

U.S. 563 (1968). Id.

Similarly, in Demers v. Austin, the Ninth Circuit

held that Garcetti does not apply to speech related to

scholarship or teaching. 746 F.3d 402, 406 (9th Cir.

2014). In Demers, the plaintiff was a professor who alleged retaliation for distributing a “pamphlet and

drafts from an in-progress book.” Id. The Ninth Circuit observed that applying Garcetti to the professor’s

speech “would directly conflict with the important

First Amendment values previously articulated by the

Supreme Court.” Id. at 411. Following the Fourth Circuit’s approach in Adams, the Ninth Circuit held that

“academic employee speech not covered by Garcetti is

protected under the First Amendment, using the analysis established in Pickering.” Id. at 412.

The Fifth Circuit followed suit in Buchanan v. Alexander, recognizing that “[t]he Supreme Court has

established that academic freedom is ‘a special concern of the First Amendment, which does not tolerate

laws that cast a pall of orthodoxy over the classroom.’”

919 F.3d 847, 852 (5th Cir. 2019) (quoting Keyishian,

385 U.S. at 603). In Buchanan, the plaintiff was a professor who alleged retaliation after being terminated

for using profanity and making jokes while teaching.

Id. at 851. Like the Fourth and Ninth Circuits, the

9

Fifth Circuit applied the Pickering analysis to determine whether the professor’s speech was protected.

Id. at 853.

Most recently, in Meriwether v. Hartop, the Sixth

Circuit declared that “the academic-freedom exception to Garcetti covers all classroom speech related to

matters of public concern, whether that speech is germane to the contents of the lecture or not.” 992 F.3d

492, 507 (6th Cir. 2021). In Meriwether, a public university professor alleged that his discipline for refusing to use a student’s preferred pronouns violated the

First Amendment. The Sixth Circuit reasoned that

the “need for the free exchange of ideas in the college

classroom is unlike that in other public workplace settings,” concluding that “a professor’s in-class speech

to his students is anything but speech by an ordinary

government employee.” Id. at 507. Accordingly, the

Sixth Circuit analyzed the professor’s claim under

Pickering. Id.

Recognizing that academic freedom requires specific judicial protection, the Fourth, Fifth, Sixth, and

Ninth Circuits each concluded that Garcetti was inapplicable to the academic speech of public university

faculty. Although the instant case does not involve

public university faculty, its resolution will implicate

their expressive rights, just as Garcetti did. To

properly account for academic freedom and resolve the

question reserved by the Garcetti majority, this Court

should take the opportunity presented by this case to

follow the circuits’ lead, clarifying that Garcetti does

not apply to speech related to scholarship or teaching

in higher education.

10

II. If the Ninth Circuit’s ruling is allowed to

stand, amicus FIRE’s experience demonstrates that public university faculty will be

censored.

Courts often misapply this Court’s rulings involving expression in the K–12 context to cases arising in

colleges and universities. Amicus FIRE’s work demonstrates that college and university faculty already regularly face discipline for controversial classroom expression. If allowed to stand, the Ninth Circuit’s ruling would worsen the problem, giving public universities greater latitude to censor faculty, or punish them

for exercising their academic freedom and expressive

rights.

A. Restrictions

on

grade-school

speech risk misapplication to

higher education.

Despite this longstanding recognition of the importance of academic freedom in higher education,

some federal circuit courts have misapplied K–12

precedent to First Amendment claims involving

speech in the university setting. See, e.g., Doe v. Valencia Coll. Bd. of Trs., 838 F.3d 1207, 1211–12 (11th

Cir. 2016) (applying K–12 precedents to First Amendment claim involving college student speech); Ward v.

Polite, 667 F.3d 727, 733 (6th Cir. 2012) (same); Hosty

v. Carter, 412 F.3d 731, 735 (7th Cir. 2005) (same).

But recently in Mahanoy Area School District v.

B. L., Justice Alito noted that university students differ from K–12 students for “several reasons,” including their “age, independence, and living arrangements” and therefore “regulation of their speech may

11

raise very different questions” from those presented

by that case, which involved the off-campus speech of

a high-school student. 141 S. Ct. 2038, 2049 n.2 (2021)

(Alito, J., concurring).

The Court should here follow Justice Alito’s note

regarding the differences between the university and

K–12 settings, as the conditions that permit grade

schools leeway to restrict First Amendment expression do not pertain to higher education. As the Ninth

Circuit conceded, grade schools represent a uniquely

coercive setting due to “mandatory attendance requirements, and because of the students’ emulation of

teachers as role models and the children’s susceptibility to peer pressure.” Kennedy v. Bremerton Sch. Dist.,

991 F.3d 1004, 1017 (9th Cir. 2021) (“Kennedy II”)

(quoting Edwards v. Aguillard, 482 U.S. 578, 583–84

(1987)).

As this Court noted in Edwards, “[t]he potential

for undue influence is far less significant with regard

to college students who voluntarily enroll in courses.”

482 U.S. at 584 n.5. College students, not subject to

the same coercive pressures as children in grade

schools, do not need protection from their teachers’

ideas—to the contrary, the college classroom is “peculiarly the ‘marketplace of ideas.’” Keyishian, 385 U.S.

at 603.

But in the years since this Court decided Garcetti,

grade school teachers have seen their expressive

rights curtailed in the classroom, even for fleeting

comments made under circumstances where there is

no reasonable risk of coercion of susceptible young

minds. The test that the lower courts have fashioned

out of Garcetti in the grade-school setting asks, in

12

essence, whether the speech occured in the classroom

or other under circumstances where teachers are

speaking to students. If yes, the courts have sided

with the school districts over the teachers, no matter

how fleeting their proscribed expression may have

been.

For example, an elementary school student asked

a teacher if she had ever participated in political

demonstrations. The teacher told the students that

while driving past a demonstration against war in

Iraq, she saw someone holding a “honk for peace” sign,

so she honked her horn. Mayer v. Monroe Cnty. Cmty.

Sch. Corp., 474 F.3d 477, 478 (7th Cir. 2007). The Seventh Circuit held that the school district did not violate her First Amendment rights when it refused to

renew her contract, as her speech occurred in the

classroom. Id. at 478–80. Apparently, grade school

teachers must be prevented from admitting to their

students that they honked for peace.

A teacher of a high school creative writing class led

a discussion of a curriculum-approved essay that described a Dutch holiday tradition of dressing up as

Zwarte Piete, “a black man, who accompanies Santa

Claus.” Melynk v. Teaneck Bd. of Educ., No. 16-0188,

2016 WL 6892077, at *1 (D.N.J. Nov. 22, 2016). The

teacher—herself of Dutch ancestry with family then

living in the Netherlands—mentioned the tradition

persisted to that day and showed students photos

from her phone of her relatives in blackface, inadvertently causing offense. Id. The school initiated an investigation into the teacher’s conduct, and ultimately

placed a letter of reprimand in her file. Id. The court

13

held that the teacher’s expression failed the Garcetti

test because it occurred in the classroom. Id. at *4.

As these examples demonstrate, under Garcetti,

courts too easily misattribute to the school-district

employer the speech of grade-school teachers. The

speech is thus subject to restriction—and the employee to discipline. It would be one thing if these

cases demarcated a bright line between the lack of academic freedom rights for grade school teachers on the

one side and the enjoyment of such rights for university faculty on the other. But amicus FIRE’s experience defending faculty speech, including in the university classroom, demonstrates the risk of allowing

the Ninth Circuit’s decision below to stand.

B. Amicus FIRE’s experience demonstrates that faculty members face

punishment for controversial or

challenging classroom expression,

properly protected by academic

freedom.

Amicus FIRE’s experience over more than twenty

years demonstrates that professors across the country

face discipline from their own colleges and universities for speech the institutions or their constituents

find disagreeable, offensive, or merely uncomfortable.

Recent controversies illustrate the ongoing problem.

In October 2020, Marshall University administrators fired a professor over a comment she made while

students were still entering class.2 While microbiology

2 Daniel Burnett, A Marshall University professor criticized

unmasked Trump supporters. Then censorship spread., FIRE

14

professor Jennifer Mosher waited for students to log

in to her online lecture about COVID-19, one student

made an offhand comment about “thinning the gene

pool.” Mosher replied, “without getting into politics,

all the large gatherings of certain groups of people

holding rallies [. . .] I’m like yeah, let Darwin [. . .] do

its job [. . .] and hopefully they’ll all be dead by the

election. [laughing] I’m sorry, that’s horrible.” Shortly

thereafter, Mosher began her lecture and the class

proceeded without incident. However, someone had

recorded that initial exchange, and the video found its

way to Twitter. Two days later, after public backlash

online, Marshall suspended Mosher pending an investigation. After half of the West Virginia state Senate

signed a letter complaining that Marshall was using

taxpayer dollars to fund “hate speech,” the university

fired her.

In January 2022, Ferris State University placed a

professor on leave over a course introduction that interwove profane television references with syllabus

topics.3 History professor Barry Mehler had taught at

Ferris State for thirty years, and given many an irreverent introductory lecture, at times with administrators in attendance and supportive of his colorful

(Jan. 13, 2022), https://www.thefire.org/a-marshall-universityprofessor-criticized-unmasked-trump-supporters-then-censorship-spread [https://perma.cc/27Y3-MRQP].

3 Sabrina Conza, Ferris State cannot punish professor for comedic — and now viral — video jokingly referring to students as

‘cocksuckers’ and ‘vectors of disease’, FIRE (Jan. 17, 2022),

https://www.thefire.org/ferris-state-cannot-punish-professor-forcomedic-and-now-viral-video-jokingly-referring-to-students-ascocksuckers-and-vectors-of-disease

[https://perma.cc/9G57NJVE].

15

rhetoric.4 Nevertheless, after an out-of-context video

clip—that included Mehler calling students “vectors of

disease” with reference to school policies addressing

the ongoing COVID-19 pandemic—made its way

online, the university removed the professor from the

classroom for the remainder of the school year. To justify Mehler’s removal, the administration cited a university policy requiring “all students and employees to

conduct themselves with dignity and respect.”5

In April 2021, Cypress Community College cancelled Faryha Salim’s online communications class,

simply for arguing against lionizing the police in response to a student’s “persuasive presentation” assignment in a communications class.6 Online backlash

to a video recording of the exchange prompted Cypress

to publicly announce Salim’s involuntary leave of absence. The college cited public safety concerns, but its

failure to explain how cancelling Salim’s online class

made its community safer suggests it had capitulated

to a heckler’s veto.

4 Adam Steinbaugh, SAVE FERRIS PROF: Before it suspended tenured professor over profane syllabus skit, Ferris State

praised it, FIRE (Jan. 20, 2022), https://www.thefire.org/beforeit-suspended-professor-over-profane-syllabus-skit-ferris-statepraised-it [https://perma.cc/MA8W-SSWE].

5 Ferris State Univ., Employee Dignity/Harassment/Discrimination, Sec. 8-701, https://www.ferris.edu/administration/president/DiversityOffice/employee.htm

[https://perma.cc/NYB77L67] (last visited Feb. 28, 2022).

6 Sabrina Conza, FIRE demands answers from Cypress College

over

cancelled

professor,

FIRE

(May 14, 2021),

https://www.thefire.org/fire-demands-answers-from-cypress-college-over-cancelled-professor [https://perma.cc/9G8Z-YM6J].

16

As the above cases demonstrate, professors, like

Kennedy, cannot escape observation by the public. See

Kennedy II, 991 F.3d at 1010 (“Kennedy further

acknowledged that, as a football coach, he was ‘constantly being observed by others.’”). Some may react

negatively to speech that is offensive, vituperative,

provocative, or pedagogically challenging. Even so,

the academic freedom necessary for a thriving system

of higher education requires that faculty be free to engage in pedagogy as they see fit. As this Court correctly recognized, “[s]cholarship cannot flourish in an

atmosphere of suspicion and distrust.” Sweezy, 354

U.S. at 250.

III. Public university faculty must be able to

vindicate their rights by exposing censorship to public scrutiny.

In dismissing Coach Kennedy’s First Amendment

claims, the Ninth Circuit panel relied, in part, on Kennedy’s efforts to plead his case in the court of public

opinion. The panel concluded that Kennedy’s “pugilistic” public defense of his expression, and the ensuing

public interest he generated, justified the Bremerton

School District’s decision to discipline him, holding

that failing to do so would have been interpreted by

observers as an institutional endorsement of his

speech. Kennedy II, 991 F.3d at 1017.

The Ninth Circuit’s rationale sends a dangerous

message to government employees whose First

Amendment rights are violated: Either suffer in silence, or risk discipline by daring to cast sunlight on

censorship. Government employees—including the

public university faculty that amicus FIRE defends—

rely on public support to expose illiberal institutional

17

censorship and to vindicate their rights. If allowed to

stand, the Ninth Circuit’s reasoning will render that

public support a liability, allowing administrators to

argue that censorship was necessary to avoid public

confusion about institutional endorsement of faculty

speech.

A. The Ninth Circuit dangerously

suggested that a vigorous public

defense of First Amendment rights

may justify discipline.

Censorship is newsworthy. When fellow citizens

face punishment for the apparent exercise of their

First Amendment rights, the public wants to know

more.7 Indeed, public scrutiny is a powerful antidote

to rights violations that might otherwise have gone

undetected and unanswered. Troublingly, however,

the Ninth Circuit’s decision effectively punished

Coach Kennedy for the public’s interest in his ordeal.

7 As one commentator observed: “What’s the best way to make

sure a message gets heard? Try to muzzle it.” Catherine Rampell,

What Milo Yiannopoulos and Elizabeth Warren have in common,

Wash. Post (Feb. 9, 2017), https://www.washingtonpost.com/

opinions/what-milo-yiannopoulos-and-elizabeth-warren-havein-common/2017/02/09/ee5da942-ef0e-11e6-96626eedf1627882_story.html [https://perma.cc/4FEN-QNP5]. Generally speaking, Americans do not like censorship, trusting instead in the free exchange of ideas. See, e.g., Emily Ekins, The

State of Free Speech and Tolerance in America: Attitudes about

Free Speech, Campus Speech, Religious Liberty, and Tolerance of

Political Expression, Cato Institute (Oct. 31, 2017),

https://www.cato.org/survey-reports/state-free-speech-toleranceamerica [https://perma.cc/9JZJ-XTE5 ] (“Americans provide a

strong endorsement of free speech with 67% who agree that ‘free

speech ensures the truth will ultimately win out.’”).

18

The Ninth Circuit found that Kennedy spoke as a

government employee, and not a citizen, in his postgame prayer. Kennedy II, 991 F.3d at 1016. Even assuming arguendo that Kennedy had spoken as a private citizen, the Ninth Circuit concluded that the

school district’s decision to treat him differently from

other members of the general public was adequately

justified by its compelling interest in avoiding an Establishment Clause violation. Id. at 1016–19. Due in

significant part to the widespread attention Kennedy’s expression had attracted, the Ninth Circuit

found “no doubt” that his expression would be misinterpreted as bearing the school’s imprimatur. Id. at

1019.

In other words, the Ninth Circuit held Kennedy’s

efforts to garner public attention against him. In the

panel’s telling, Kennedy wasn’t standing up for his

First Amendment rights; rather, he was engaging in

“pugilistic efforts to generate publicity in order to gain

approval” of his speech. Id. at 1017. Kennedy wasn’t

appealing to the court of public opinion; he “engaged

in a media blitz.” Id. Because Kennedy “actively

sought support from the community” when attempting to vindicate his contested right to engage in a brief

expression of faith, the Ninth Circuit found that the

school district had all the more justification to take

action. Id. at 1019. Had it not censored Kennedy, “an

objective observer could reach no other conclusion”

than that the school district actually “endorsed” his

beliefs. Id.

By suggesting that a vigorous defense of First

Amendment rights justifies a proportional administrative response, the Ninth Circuit’s analysis

19

encourages heavy-handed censorship as a prophylactic measure: Censorship is warranted, lest an outside

observer conclude that the speech has the institution’s

approval. It also discourages those censored from

fighting back, as the more attention those threatened

with censorship draw to their efforts to continue

speaking, the greater the justification for institutional

censorship to avoid the appearance of endorsement.

Not only does the Ninth Circuit’s reasoning punish

government employees who seek to marshal support

for their expressive rights, it suggests that public institutions that decline to censor may be at risk of liability. But this Court noted three decades ago that

“[t]he proposition that schools do not endorse everything they fail to censor is not complicated.” Bd. of

Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S.

226, 250 (1990). The panel’s ruling thus has our

longstanding national commitment to freedom of expression exactly backwards. As Circuit Judge Ryan D.

Nelson asked, in dissenting from the denial of Kennedy’s petition for rehearing en banc: “[W]ould we

ever pejoratively refer to members of various civil

rights movements as ‘pugilistic’ when they publicly,

peacefully, and vocally tried to vindicate their

rights? Absolutely not.” Kennedy v. Bremerton Sch.

Dist., 4 F.4th 910, 953 n.10 (9th Cir. 2021) (“Kennedy

I”) (R. Nelson, J., dissenting from denial of rehearing

en banc).

The Ninth Circuit’s misguided emphasis on Coach

Kennedy’s “pugilistic” defense of his rights and the accompanying public attention is part of its Establishment Clause analysis. But if allowed to stand, it is unlikely to stay cabined to matters involving religious

20

expression. Amicus FIRE knows too well that colleges

and universities regularly field demands to censor faculty members after their expression draws public attention—and regularly acquiesce. In the past year

alone, academics have faced investigations and discipline for criticizing President Biden’s criteria for a

forthcoming Supreme Court nomination;8 criticizing

their institution’s response to COVID-19 and former

Vice President Mike Pence’s debate performance;9

criticizing their institution’s response to allegations of

8 Neil Vigdor, Georgetown Suspends Lecturer Who Criticized

Vow to Put Black Woman on Court, N.Y. Times (Jan. 31, 2022),

https://www.nytimes.com/2022/01/31/us/ilya-shapirogeorgetown-biden-scotus.html [https://perma.cc/JJ7P-YBUL].

9 Talia Richman, Collin College again pushes out professor critical of administration’s handling of COVID-19, free speech, Dall.

Morning News (Feb. 26, 2021), https://www.dallasnews.com/

news/education/2021/02/26/collin-college-again-pushes-out-professor-critical-of-administrations-handling-of-covid-19-freespeech [https://perma.cc/KD2D-PNWM]; see also Talia Richman,

Former Collin College professor who claimed retaliation over

tweets resolves lawsuit with school, Dall. Morning News (Jan. 25,

2022), https://www.dallasnews.com/news/education/2022/01/25/

former-collin-college-professor-who-claimed-retaliation-overtweets-resolves-lawsuit-with-school

[https://perma.cc/2GS4QAUP] (“A former Collin College professor – who lost her job after tweeting messages critical of the school’s COVID-19 protocols

and of then-Vice President Mike Pence – resolved her lawsuit

with the school Tuesday. Lora Burnett, who taught history, accepted the school’s $70,000 offer to end the dispute.”).

21

sexual abuse and anti-Semitism;10 and criticizing the

Chinese government.11

These faculty members—representing just a small

sample of recent faculty speech controversies—faced

repercussions because their speech garnered public

attention. In each instance, the precipitating speech

was protected by either the First Amendment or institutional promises of free expression.

But if, following the Ninth Circuit’s ruling, colleges

and universities may in the future cite unwanted public attention as a justification for punishing faculty

speakers—positing censorship as a necessary measure to avoid misunderstandings about institutional

endorsement of faculty expression—then academic

freedom will be a dead letter. Neither faculty nor students can meaningfully engage in “that continual and

fearless sifting and winnowing by which alone the

truth can be found,”12 in the University of Wisconsin’s

famously apt phrasing, if the fear of mistaken

10 Michael Levenson, Linfield University Fires Professor Who

Spoke Out About Misconduct Cases, N.Y. Times (May 1, 2021),

https://www.nytimes.com/2021/05/01/us/Linfield-university-professor-fired.html [https://perma.cc/E2GZ-YKB6].

11 Eugene Volokh, Univ. of San Diego Law School Investigating Professor for Post Critical of China, Reason (March 20, 2021),

https://reason.com/volokh/2021/03/20/univ-of-san-diego-lawschool-investigating-professor-for-post-critical-of-china

[https://perma.cc/7SKN-C8YA].

12 See Käri Knutson, Sifting and winnowing turns 125: The

tumultuous story of three little words, Univ. of Wisconsin–Madison News (Sept. 17, 2019), https://news.wisc.edu/sifting-and-winnowing-turns-125 [https://perma.cc/A6PN-ZWJH].

22

institutional attribution is allowed to justify censorship of challenging, dissenting, or simply unpopular

faculty speech.13 As this Court has warned, the “danger” posed by “the chilling of individual thought and

expression” is “especially real in the University setting, where the State acts against a background and

tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” Rosenberger, 515 U.S. at 835.

Just as troublingly, by rendering public attention

secured by the vigorous defense of one’s rights a justification for censorship, the Ninth Circuit’s decision denies to the faculty members amicus FIRE defends

their most effective means of combating censorship.

B. In defending public university faculty, amicus FIRE relies on public

attention to vindicate speech rights.

Since 1999, amicus FIRE has successfully vindicated the expressive rights of faculty at institutions

nationwide by relying on the truth of Justice

Brandeis’s classic observation: Sunlight is “the best of

disinfectants.”14 In FIRE’s experience, the power of

13 Such a fear would be unfounded, too. Just as allowing a religious student organization to use public campus facilities on

equal footing with secular groups does not violate the Establishment Clause because “an open forum in a public university does

not confer any imprimatur of state approval on religious sects or

practices,” Widmar v. Vincent, 454 U.S. 263, 276 (1981), neither

does the speech of public university faculty as private citizens

reasonably bear the presumption of institutional endorsement.

14 Louis D. Brandeis, What Publicity Can Do, Harper’s

Weekly (Dec. 20, 1913),

https://www.thefire.org/presentation/

23

public opinion is just as reliable a guarantor of faculty

rights as the judiciary, and arguably more so.15

A recent controversy at the University of Florida

offers an illustration of the immense value of public

attention for faculty seeking to remedy a violation of

First Amendment freedoms. On May 17, 2021, voting

rights advocates filed a lawsuit against various Florida state election officials to block implementation of

Senate Bill 90, a statute imposing new restrictions on

voting in the state.16 The plaintiffs’ lawyers sought to

hire three University of Florida political science professors as expert witnesses. Pursuant to the university’s policy, all three faculty members filed disclosure

forms with the institution concerning their planned

participation in the lawsuit. But upon review, and despite having previously allowed one of the professors

to testify in two voting rights lawsuits against Florida

wp-content/uploads/2021/08/31120554/1913_12_20_What

_Publicity_Ca.pdf [https://perma.cc/YH7A-5NK7].

15 Fighting rights violations by going public, FIRE,

https://www.thefire.org/resources/submit-a-case/frequentlyasked-questions-about-case-submissions/fighting-rights-violations-by-going-public/ [https://perma.cc/FSK2-QWL8] (“But after

successfully defending campus rights for more than two decades,

we have found that telling the story of how rights are being violated is usually the most effective way to encourage an institution to comply with its legal and moral obligation to protect student and faculty rights.”).

16 Class Action Compl. for Injunctive and Declaratory Relief,

Fla. Rising Together v. Lee, No. 4:21-cv-00201-AW-MJF (N.D.

Fla. filed May 17, 2021), available at https://www.demos.org/sites/default/files/2021-05/FRT%20v.%20Lee%20%20Complaint.pdf [https://perma.cc/YL3S-892Z].

24

in 2018, the university denied the faculty members’

requests.

On October 29, 2021, The New York Times reported that the University of Florida was prohibiting

three professors from testifying in a voting rights lawsuit brought against the state.17 The denial quickly

generated intense public interest and media attention.18 On October 30, 2021, the university issued a

statement in response, arguing that it had not violated the First Amendment rights of the professors.19

In a subsequent statement, a university spokesperson

said that “if the professors wish to do so pro bono on

their own time without using university resources,

they would be free to do so.”20

17 Michael Wines, Florida Bars State Professors From Testifying in Voting Rights Case, N.Y. Times (Oct. 29, 2021),

https://www.nytimes.com/2021/10/29/us/florida-professors-voting-rights-lawsuit.html [https://perma.cc/F4FV-4HFN].

18 See, e.g., Mike Schneider, University of Florida prohibits

professors from testifying, Associated Press (Oct. 30, 2021),

https://apnews.com/article/lawsuits-florida-ron-desantis-votingrights-university-of-floridaf3b88f128a3175586fdc21b56a0a7132

[https://perma.cc/A97KZUHP].

19 University Statement on Academic Freedom and Free

Speech,

Univ.

of

Fla.,

http://statements.ufl.edu/statements/2021/october/university-statement-on-academic-freedomand-free-speech.html [https://perma.cc/ZP83-RFW4].

20 Danielle Ivanov, UF professors could testify in voting rights

case if they are unpaid, spokeswoman says, Gainesville Sun

(Oct. 31, 2021), https://www.gainesville.com/story/news/education/campus/2021/10/31/university-of-florida-spokeswomanthree-professors-could-testify-if-unpaid/6223947001.

25

On November 1, FIRE wrote to the University of

Florida, explaining that prohibiting professors from

testifying in lawsuits as citizens speaking on matters

of public concern violates the First Amendment.21

Days later, following “blistering criticism”22 and a “national outcry,”23 the university reversed course,

“[a]cceding to a storm of protest” and announcing it

would allow the professors to testify—regardless of

whether they received compensation.24

A subsequent First Amendment lawsuit filed by

the professors against the University of Florida has

resulted in a preliminary injunction barring the university from enforcing its revised conflict-of-interests

policy against faculty seeking to provide expert testimony or consulting in litigation involving the State of

Florida. Austin v. Univ. of Fla. Bd. of Trs.,

21 Letter from Aaron Terr, Program Officer, FIRE, to Dr. W.

Kent Fuchs, President, University of Florida (Nov. 1, 2021),

available at https://www.thefire.org/fire-letter-to-the-universityof-florida-november-1-2021 [https://perma.cc/T8H3-FGLQ].

22 John Henderson, Protest on the street and in writing show

continued concern at UF over academic freedom, Gainesville Sun

(Nov. 12, 2021), https://www.gainesville.com/story/news/2021/11

/12/university-florida-protest-professors-write-fuchs-over-freespeech-concerns/8589858002 [https://perma.cc/3YXC-47DK].

23 Keith E. Whittington, The intellectual freedom that made

public colleges great is under threat, Wash. Post (Dec. 15, 2021),

https://www.washingtonpost.com/outlook/2021/12/15/academicfreedom-crt-public-universities [https://perma.cc/7GQF-VBAW].

24 Michael Wines, University of Florida Reverses Course to Allow Professors to Testify Against State, N.Y. Times (Nov. 5, 2021),

https://www.nytimes.com/2021/11/05/us/voting-rights-floridaprofessors-testify.html [https://perma.cc/HYG7-Z9LZ].

26

No. 1:21cv184-MW/GRJ, 2022 U.S. Dist. LEXIS

11733 (N.D. Fla. Jan. 21, 2022). But the immediate

impact of the public scrutiny placed on the university’s initial decision is undeniable. For faculty facing

rights violations, public attention is invaluable.

Further examples abound.

As of July 1, 2021, Iowa state law required the

state’s public institutions of higher education to ensure that “any mandatory staff or student training

provided by an employee of the institution or by a contractor hired by the institution does not teach, advocate, act upon, or promote specific defined concepts,”

including, for example, the notion that “the United

States of America and the state of Iowa are fundamentally or systemically racist or sexist.” Iowa Code

§ 261H.8. Both as written and as indicated by state

lawmakers during legislative debate,25 the law does

not implicate classroom instruction.

While the University of Iowa made clear to faculty

that the law has “zero impact within the classroom as

academic instruction is specifically exempted from the

legislation,”26 Iowa State University incorrectly told

25 FIRE, Iowa Rep. Mary Lynn Wolfe Comments on HF802,

March 16, 2021, YouTube (July 27, 2021), https://www.youtube

.com/watch?v=py3aWX_gC08&t=53s (explaining that bill “just

affects diversity training” in higher education, and only reaches

what teachers are “allowed to teach and curriculum” in K–12

classes).

26 House File (HF) 802 Information, Univ. of Iowa (July 27,

2021), https://diversity.uiowa.edu/house-file-hf-802-information

[https://perma.cc/7AJE-62MU].

27

its faculty that the law required the university to police regular class instruction, including discussions,

course materials, and invited speakers.27 After faculty

voiced concern, FIRE wrote Iowa State and issued a

press release, explaining the threat to academic freedom and the First Amendment rights presented by

Iowa State’s erroneous warning to its faculty.28 Only

after the ensuing public scrutiny29 did Iowa State reverse course and revise its guidance to better account

for faculty rights.30

In September 2021, a visiting artist at Coastal

Carolina University was working with two students of

color after class when one student expressed that she

27 Iowa House File 802 – Requirements Related to Racism and

Sexism

Trainings,

Iowa

State

Univ.

(Aug. 5, 2021),

https://www.provost.iastate.edu/policies/iowa-house-file-802--requirements-related-to-racism-and-sexism-trainings

[https://perma.cc/M8AL-E7EP].

28 FIRE calls on Iowa State to reverse unconstitutional implementation of critical race theory law, FIRE (July 27, 2021),

https://www.thefire.org/fire-calls-on-iowa-state-to-reverse-unconstitutional-implementation-of-critical-race-theory-law

[https://perma.cc/792H-ALNT].

29 See, e.g., Phillip Sitter, Free speech advocacy group critiques

ISU guidance on divisive concepts law as too broad — and it's not

alone, Ames Trib. (Aug. 4, 2021), https://www.amestrib.com

/story/news/education/2021/08/04/iowa-state-university-criticalrace-theory-foundation-individual-rights-education-critiquesisu/5415113001 [https://perma.cc/D5PD-VGWX].

30 After FIRE turns up the heat, Iowa State revises unconstitutional guidance for instructors to self-censor, FIRE

(Aug. 11, 2021), https://www.thefire.org/after-fire-turns-up-theheat-iowa-state-revises-unconstitutional-guidance-for-instructors-to-self-censor [https://perma.cc/B6D9-4F94].

28

felt isolated and would like to get to know other nonwhite students in the department. The instructor and

students wrote names of other students of color on the

classroom whiteboard while brainstorming ideas. Students who later entered the classroom and saw the

names protested what they interpreted to be the singling-out of non-white students.

After both a theater department committee and

the visiting artist issued apologies over email, professor Steven Earnest suggested in reply that the protesting students were being overly sensitive.31 Following student protests, Earnest was suspended. After

FIRE alerted the media to Earnest’s discipline,32

31 The professor wrote: “Sorry but I dont [sic] think its [sic] a

big deal. Im [sic] just sad people get their feelings hurt so easily.

And they are going into Theatre?” Eugene Volokh, Theater Prof

Facing Possible Firing for Not Being Sufficiently Outraged, Reason (Nov. 9, 2021), https://reason.com/volokh/2021/11/09/theaterprof-facing-possible-firing-for-not-being-sufficiently-outraged

[https://perma.cc/M7RX-F5RR] (quoting FIRE’s letter).

32 A theater professor wasn’t sufficiently outraged about a list

of names on a whiteboard. The college’s next act: probable termination., FIRE (Oct. 20, 2021), https://www.thefire.org/a-theaterprofessor-wasnt-sufficiently-outraged-about-a-list-of-names-ona-whiteboard-the-colleges-next-act-probable-termination

[https://perma.cc/4R83-XYMX].

29

garnering national attention,33 the university reversed course.34

In 2017, Laurie Sheck, a professor at The New

School, was charged with racial discrimination after

quoting James Baldwin during a graduate seminar

discussion of his 1962 essay “The Creative Process.”

Sheck noted how the title of an Oscar-nominated 2016

documentary based on Baldwin’s writings, “I Am Not

Your Negro,” intentionally altered its quoted source,

Baldwin’s use of a racial slur as a guest on “The Dick

Cavett Show.” She asked her students what this

change may reveal about Americans’ ability to reckon

with what Baldwin identified in his essay as “the

darker forces of history.”35

Months later, The New School notified Sheck that

she was under investigation for allegedly violating the

institution’s discrimination policy in her classroom

discussion, but provided her with no further details.

After The New School failed to substantively respond

to a letter from FIRE voicing concern about the investigation’s violation of the academic freedom promised

Sheck in institutional policy, FIRE issued a press release calling on the university to end the

33 See, e.g., Brittany Bernstein, A Theater Professor Suggested

Students Should Have Thicker Skins, So They Demanded He Be

Fired, Nat’l Rev. (Nov. 7, 2021), https://www.nationalreview.com/news/a-theatre-professor-suggested-students-shouldhave-thicker-skins-so-they-demanded-he-be-fired

[https://perma.cc/V849-MQQ6].

34 FIRE, supra note 32.

35 James Baldwin, The Creative Process, in Creative America

(1962).

30

investigation.36 Days later—and only after public

scrutiny37—it finally did so.38

These controversies represent just a small sample

of amicus FIRE’s reliance on the power of public attention to vindicate faculty rights. To ensure that sunlight remains the best of disinfectants, this Court

must reject the Ninth Circuit’s flawed reasoning and

make clear that a “pugilistic” defense of faculty rights

may not justify censorship and punishment. This

Court must make clear that faculty do not imperil

their First Amendment rights by seeking to vindicate

them.

36 Academic freedom at The New School? Not if you quote an

iconic

black

writer.,

FIRE

(Aug. 7, 2019),

https://www.thefire.org/academic-freedom-at-the-new-schoolnot-if-you-quote-an-iconic-black-writer [https://perma.cc/UJ9C6DWR].

37 See, e.g., Colleen Flaherty, N-Word at the New School, Inside Higher Ed (Aug. 7, 2019), https://www.insidehighered.com/news/2019/08/07/another-professor-under-fire-using-nword-class-while-discussing-james-baldwin

[https://perma.cc/CAY4-AYFA].

38 VICTORY: Professor exonerated for quoting iconic black

writer

at

The

New

School,

FIRE (Aug. 16, 2019),

https://www.thefire.org/victory-professor-exonerated-for-quoting-iconic-black-writer-at-the-new-school

[https://perma.cc/BJ5S-S8Z5].

31

CONCLUSION

For the above reasons, this Court should reverse.

March 2, 2022

Respectfully submitted,

DARPANA M. SHETH

Counsel of Record

WILL CREELEY

FOUNDATION FOR

INDIVIDUAL RIGHTS IN

EDUCATION

510 Walnut Street

Suite 1250

Philadelphia, PA 19106

(215) 717-3473

darpana.sheth@thefire.org

will@thefire.org

GABRIEL WALTERS

FOUNDATION FOR

INDIVIDUAL RIGHTS IN

EDUCATION

700 Pennsylvania Ave., SE

Suite 340

Washington, DC 20003

(215) 717-3473

gabe.walters@thefire.org

Counsel for Amicus Curiae