Petition for Writ of Certiorari — Stephen R. Porter, Petitioner v. Board of Trustees of North Carolina State University, et al.

i

APPENDIX TABLE OF CONTENTS

Page

United States Court of Appeals for the Fourth

Circuit, Opinion, July 6, 2023 .......................... App. 1

United States District Court for the Eastern

District of North Carolina, Western Division,

Order, June 17, 2022 ...................................... App. 50

App. 1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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No. 22-1712

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STEPHEN R. PORTER, PH.D.,

Plaintiff - Appellant,

v.

BOARD OF TRUSTEES OF NORTH CAROLINA

STATE UNIVERSITY; W. RANDOLPH WOODSON, in

his official capacity; MARY ANN DANOWITZ, in both

her official and individual capacities; JOHN K. LEE, in

both his official and individual capacities; PENNY A.

PASQUE, in both her official and individual capacities;

JOY GASTON GAYLES, in both her official and individual capacities,

Defendants - Appellees,

---------------------------ELIZABETH WEISS; PACIFIC LEGAL FOUNDATION; FOUNDATION FOR INDIVIDUAL RIGHTS

AND EXPRESSION,

Amici Supporting Appellant.

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Appeal from the United States District Court for the

Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:21-cv-00365-BO)

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Argued: January 27, 2023

Decided: July 6, 2023

App. 2

Before WYNN, THACKER, and RICHARDSON, Circuit Judges.

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Affirmed by published opinion. Judge Thacker wrote

the opinion in which Judge Wynn joined. Judge Richardson wrote an opinion dissenting.

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ARGUED: Samantha K. Harris, ALLEN HARRIS

PLLC, Narberth, Pennsylvania, for Appellant. Eric M.

David, BROOKS, PIERCE, McLENDON, HUMPHREY & LEONARD, LLP, Raleigh, North Carolina, for

Appellees. ON BRIEF: Jonathan A. Vogel, VOGEL

LAW FIRM PLLC, Charlotte, North Carolina, for Appellant. Joshua H. Stein, Attorney General, Kari R.

Johnson, Special Deputy Attorney General, Vanessa N.

Totten, Special Deputy Attorney General, NORTH

CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Appellees. Kathryn D. Valois, Palm

Beach Gardens, Florida, Ethan W. Blevins, Daniel M.

Ortner, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amici Elizabeth Weiss and Pacific Legal Foundation. Darpana M. Sheth, Jeffrey D.

Zeman, Philadelphia, Pennsylvania, JT Morris,

FOUNDATION FOR INDIVIDUAL RIGHTS AND

EXPRESSION, Washington, D.C., for Amicus Foundation for Individual Rights and Expression.

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App. 3

THACKER, Circuit Judge.

Stephen Porter (“Appellant”) filed suit alleging

that he suffered adverse employment action in retaliation for unpopular protected speech. The district

court dismissed Appellant’s complaint. Upon review,

we affirm the dismissal because we find that Appellant

has failed to allege a causal connection between the

only communication that is arguably protected under

the First Amendment and the alleged adverse employment action.

I.

A.

Appellant has been a tenured professor at North

Carolina State University (“NCSU”) since 2011. He

teaches courses in graduate-level statistics and research methods in the Department of Educational

Leadership, Policy, and Human Development (“the Department”), within the College of Education. At the

time Appellant was hired, he joined the Department’s

Higher Education Program Area (“HEPA”). The HEPA

is one of several degree programs within the Department. The Department offers both a master’s degree

and a doctoral (“Ph.D.”) program. There are no undergraduate students in the Department. Appellant has

limited involvement with the master’s degree program; no master’s degree advisees; and does not attend

events related solely to the master’s degree. Instead,

Appellant alleges that, prior to suffering adverse employment action, he spent considerable time on Higher

App. 4

Education Ph.D. activities, including advising HEPA

Ph.D. students; serving on HEPA Ph.D. committees;

and actively recruiting prospective Ph.D. students.

In 2015, the College of Education created a

Scholar Leader Ph.D. program. As part of this change,

each Ph.D. program within the College of Education

became part of the Ph.D. Program Area of Study, which

is distinct from a Program Area. Appellant alleges that

the change created, “in theory . . . two separate tracks,

with [m]aster’s degrees and certificates located within

the . . . Program Areas, and all Ph.D. programs located

within the new Ph.D. Program Areas of Study.” J.A.

11.1 But Appellant alleges that, in practice, the new

distinctions were ignored and both master’s degree

and Ph.D. program matters continued to fall within

the parameters of the original Program Areas.

B.

Appellant’s Complaint alleges that he has been

outspoken in recent years concerning the focus on “socalled ‘social justice’ affecting academia in general”

and “his concern that the field of higher education

study is abandoning rigorous methodological analysis

in favor of results-driven work aimed at furthering a

highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’ ” J.A. 11. In this vein, Appellant identifies three

statements or communications he made between 2016

and 2018 which, in his view, are protected speech.

1

Citations to the J.A. refer to the Joint Appendix filed by the

parties in this appeal.

App. 5

According to Appellant, he was eventually subject to

adverse employment actions in retaliation for these

three communications. Appellant brings his claims

against the Board of Trustees of NCSU; the Chancellor

of NCSU; Mary Ann Danowitz, former Dean of the

College of Education; John K. Lee, current head of the

Department; Penny A. Pasque, former head of the Department; and Joy Gaston Gayles, Professor in the

Department and Program Coordinator (collectively,

“Appellees”).

The first communication occurred in spring 2016.

Appellant attended a Department meeting regarding

a proposal to add a question about diversity to student

course evaluations. Appellant expressed his concern

about the proposed question (the “survey question incident”) and suggested that the proposal had been

made without proper research. According to Appellant,

the discussion “was amicable in tone, although perhaps embarrassing” to the presenter. J.A. 12. In May

2017, NCSU’s Office of Institutional Equity and Diversity issued a report which referenced the survey question incident and labeled Appellant as a “bully.” Id.

Appellee Pasque became head of the Department at

the beginning of 2017–2018 academic year and discussed the report with Appellant during a meeting in

November 2017. In January 2018, Appellee Pasque

emailed Appellant to restate her concerns regarding

“bullying” and invited Appellant to respond. Appellee

Pasque’s email was later included in Appellant’s personnel file without his knowledge.

App. 6

The second communication relates to an April

2018 article published in the journal Inside Higher Ed.

See Colleen Flaherty, Questions About Job Candidate’s

Past, Inside Higher Ed (Apr. 11, 2018), https://perma.

cc/U22C-NKKB; https://www.insidehighered.com/news/

2018/04/11/anonymous-faculty-members-nc-state-objectjob-candidate-who-was-ousted-ohio-state (last visited

July 5, 2023). The article criticized a faculty search

committee at NCSU chaired by Alyssa Rockenbach,

one of Appellant’s colleagues in the Department. The

day the article was published, Appellant sent an email

(the “faculty hiring email”) to all of the Department

faculty. The email linked the article and said, “Did you

all see this? . . . This kind of publicity will make sure

we rocket to number 1 in the rankings. Keep up the

good work, Alyssa!” Id. at 15.

Appellee Pasque met with Appellant about the faculty hiring email the next week and asked him about

his intent in sending the email. Appellant alleges he

was concerned that Rockenbach had “cut corners” in

vetting a candidate “out of a desire to hire a Black

scholar whose work focused on racial issues.” J.A. 14.

Appellant later learned that Appellee Gayles had forwarded the faculty hiring email to Appellee Pasque

and expressed her dissatisfaction. Appellant also

learned that Rockenbach had forwarded the faculty

hiring email to Appellees Pasque and Danowitz, as

well as to the Associate Vice Provost for Equal Opportunity and Equity. During a follow up meeting with Appellee Pasque on April 24, 2018, Appellant alleges

Appellee Pasque told him “she had spoken with the

App. 7

administration to find ways to exclude [Appellant]

from critical aspects of his job. Specifically, she inquired whether [Appellant] had to remain a member of

the [HEPA] or whether he could be a member of the

department without a Program Area.” J.A. 15. Nonetheless, Appellant received a good annual evaluation

that year, albeit with a notation that he, and all faculty,

were expected to be collegial.

The final communication occurred on September

3, 2018, when Appellant published a post on his personal blog entitled “ASHE Has Become a Woke Joke.”2

J.A. 17. Appellant’s “Woke Joke” post mentioned research his colleague had gathered about the topics for

discussion at an upcoming ASHE conference. According to Appellant, this research demonstrated that the

focus of the conference had shifted from general, postsecondary research to social justice. Appellant’s post

concluded with his commentary, “I prefer conferences

where 1) the attendees and presenters are smarter

than me and 2) I constantly learn new things. That’s

why I stopped attending ASHE several years ago . . . ”

Id. at 38. Appellant’s blog post generated controversy

on social media.

As the 2018-2019 academic year began, Appellee

Danowitz met with the HEPA faculty about potentially

hiring a new faculty member. Instead of discussing the

candidate as planned at a HEPA faculty meeting, Appellee Pasque invited Appellant to a virtual meeting on

2

"ASHE” refers to the Association for the Study of Higher

Education.

App. 8

October 15, 2018, with herself, Appellee Gayles, and

two others. In that meeting, Appellee Pasque proposed

that Appellant leave the HEPA and join a new program area, the Higher Education Policy Program Area,

where Appellee Pasque, Appellant, and the new hire

would be the only faculty members. Taken together

with their April 24, 2018 meeting, Appellant alleges

this was the second time in six months that Appellee

Pasque had suggested he leave the HEPA. Appellant

asserts that the meeting then focused on his refusal to

leave the HEPA and the impact it had on [the Department’s] ability to bring in the new faculty member. “In

frustration at this apparent ambush, [Appellant] said

‘Give me a f***ing break, folks. I was the one who said

[the potential hire] should come. And now I’m the bad

guy because I don’t want to leave Higher Ed for a nonexistent program area.’ ” J.A. 19-20. Appellant received

a letter from Appellee Pasque on October 18, 2018,

chastising him for his use of profanity and expression

of frustration at the meeting.

On November 7, 2018, Appellant received another

letter from Appellee Pasque expressing concerns about

Appellant’s collegiality. The letter highlighted three

things: (1) the 2017 report that referenced the survey

question incident and labeled Appellant a bully; (2) the

faculty hiring email; and (3) Appellant’s use of profanity in response to being asked to leave the HEPA. The

letter made no mention of Appellant’s “Woke Joke” blog

post. Rather, Appellee Pasque’s letter indicated that if

Appellant “fail[s] to repair the relationships among

faculty in the Higher Education program” or displays

App. 9

a “lack of collegiality” again, Appellant would be removed from the HEPA. J.A. 20.

One week later, Appellant learned that his “Woke

Joke” blog post had been criticized by the president of

ASHE during her keynote address at the ASHE conference. On November 19, 2018, Appellant received an

email from Appellee Pasque informing him that students in the Department “were having ‘strong reactions’ to the keynote and that the department ‘need[ed]

to pay attention to’ them.” J.A. 21. Appellee Pasque

proposed a “community conversation about ASHE”

where Appellant would be expected to address students’ concerns about his blog. Id. The purpose of the

meeting would be “to help graduate students reconcile

the ‘great teacher’ they knew from NCSU with what

they had heard about [Appellant] from the president of

ASHE.” Id. According to Appellant, Appellee Pasque

eventually stated that “only two out of about 60 doctoral students spoke with her about the matter.” Id.

On February 19, 2019, Appellant met with Appellee

Pasque to discuss the issue further. During that meeting, Appellee Pasque “repeatedly expressed her frustration that [Appellant] had not proactively addressed

student and faculty concerns about ‘what happened at

ASHE.’ ” Id. at 22. Appellee Pasque indicated that this

failure to act was another example of Appellant’s lack

of collegiality.

On July 5, 2019, Appellant received his annual

evaluation which notified him that Appellee Pasque

had removed him from the HEPA because “the Higher

Education faculty were not able to make concerted

App. 10

progress” on resolving issues within the Program Area.

J.A. 23. And because being removed from the HEPA

“reduced [Appellant’s] departmental workload,” Appellant was notified that he “would be expected to teach a

fifth course.” Id.

In July 2019, Appellee Pasque left NCSU and was

replaced by Appellee Lee. After Appellant filed an internal grievance on August 28, 2019 regarding his

removal from the HEPA and the added course requirement, Appellee Lee informed Appellant that he would

not be required to teach the extra course. But the requirement was not removed from Appellant’s personnel file. Appellant alleges that, as a consequence of

being removed from the HEPA, he was barred from attending the HEPA orientation for new Ph.D. students,

the HEPA welcome cookout, and the HEPA retreat. Appellant also alleges that he was excluded from the Diagnostic Advisement Procedure (“DAP”) process for

second-year Ph.D. students, including for his own advisees.3 According to Appellant, this exclusion negatively impacted his ability to advise his students.

In October 2019, Appellant met with Appellee Lee

to discuss his ongoing concerns about his exclusion

from HEPA Ph.D. activities. Appellant was told he could

continue to advise Ph.D. students, but that because of

his removal from the HEPA, he would likely not be able

3

NCSU’s Higher Education Student Handbook provides that

a student’s advisor should be one of two readers reviewing writing

samples submitted by student candidates for the DAP and that

after those reviews, there should be a meeting of all HEPA faculty

members to discuss the students going through the DAP.

App. 11

to participate in meetings concerning the DAP process

or in reviewing his students’ dissertation prospectuses.

Appellant expressed concern that students would not

choose him as their advisor if he could not participate

in the DAP process or review prospectuses. Appellee

Lee responded that this was something Appellant

would have to talk to students about. Appellant also

voiced concern that “the process is being set up so that

when I go up for my post-tenure review a couple of

years from now, I’m not going to have any advisees.

And then you and Dean Danowitz can say well, we

need to strip [Appellant] of tenure and fire him because

he’s not fulfilling his job duties.” J.A. 26. Appellee Lee

replied, “Right, I hear you.” Id.

In December 2019, Appellant was prohibited from

attending the Ph.D. program admissions meeting,

which is when advisees are assigned. And in Spring

2020, Appellant was barred from attending a Ph.D.

student recruitment weekend. Finally, in October

2020, some faculty in the Department proposed a new

Ph.D. Program Area of Study in Higher Education Access, Equity, and Justice. Appellant was not asked

whether he would be interested in participating in this

new Program Area of Study, and all faculty members

with the exception of Appellant were invited to join.

One faculty member who was invited declined to join

the new Program Area of Study and remained in the

Higher Education Program Area of Study with Appellant. Appellant and the other faculty member were informed in March 2021 that they could make offers of

admission to doctoral candidates they wanted to advise

App. 12

but that those candidates would be encouraged to

switch to the new Program Area of Study once they arrived.

C.

Appellant filed his Complaint on September 14,

2021. The Complaint alleges, pursuant to 42 U.S.C.

§ 1983, Appellant’s First and Fourteenth Amendment

rights were violated when Appellees removed him from

the HEPA, excluded him from HEPA events, and did

not invite him to join the new Program Area of Study

in Higher Education Access, Equity, and Justice. In Appellant’s view, the survey question incident, the faculty

hiring email, and the “Woke Joke” blog post were all

protected speech. He argues that Appellees unlawfully

retaliated against him for those communications.

Appellant claims that, with the creation of the new

Program Area of Study in Higher Education Access,

Equity, and Justice – from which he was excluded – he

has been effectively siloed into a Program Area of

Study that is drained of students and resources. According to Appellant, this has severely compromised

his ability to perform critical job duties, such as advising Ph.D. students, leaving his future at NCSU in jeopardy. Appellees moved to dismiss the complaint in its

entirety for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure.

App. 13

The district court held – and Appellant does not

dispute – that his claims for damages against the Board

of Trustees and the individual defendants in their official capacities are barred by sovereign and Eleventh

Amendment immunity. The court also determined that

Appellant’s “requests for injunctive relief regarding

his permission to join the new Higher Education Opportunity, Equity, and Justice Program Area of Study

and the removal of the requirement that he teach a

fifth course are not prospective, and Ex Parte Young4

does not provide an exception to Eleventh Amendment

immunity.” J.A. 47. Finally, the district court held that

while Appellant’s request for reinstatement may state

a claim for prospective injunctive relief, Appellant has

failed to state a First Amendment retaliation claim.

And, even if Appellant had plausibly alleged a First

Amendment retaliation claim, the district court held

that the individual defendants would be entitled to

qualified immunity.

II.

We review a dismissal pursuant to Federal Rule of

Civil Procedure 12(b)(1) de novo. See Balfour Beatty Infrastructure, Inc., v. Mayor and City Council of Baltimore, 855 F.3d 247, 251 (4th Cir. 2017). Likewise, “[w]e

review de novo a district court’s grant of dismissal under Federal Rule of Civil Procedure 12(b)(6).” LaurentWorkman v. Wormuth, 54 F.4th 201, 210 (4th Cir. 2022).

“To survive a motion to dismiss, a complaint must

4

Ex Parte Young, 209 U.S. 123 (1908).

App. 14

contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’ ”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also

Fed. R. Civ. P. 12(b)(6).

We review “a qualified immunity-based grant of a

motion to dismiss de novo.” Ray v. Roane, 948 F.3d 222,

226 (4th Cir. 2020). “To determine whether a complaint

should survive a qualified immunity-based motion to

dismiss, we exercise ‘sound discretion’ in following the

two-prong inquiry set forth by the Supreme Court, analyzing (1) whether a constitutional violation occurred

and (2) whether the right violated was clearly established.” Id. (quoting Pearson v. Callahan, 555 U.S. 223,

236 (2009)).

III.

We begin with the district court’s determination

that Appellant’s complaint failed to state a claim for

First Amendment retaliation.

“When a government employee claims that he was

disciplined because of his speech, we use a three-prong

test to determine if the employee’s rights under the

First Amendment were violated.” Crouse v. Town of

Moncks Corner, 848 F.3d 576, 583 (4th Cir. 2017) (citing

McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998)). “The

first prong asks whether the employee ‘was speaking

as a citizen upon a matter of public concern or as an

employee about a matter of personal interest.’ ” Id. The

first prong can be further “divided into two inquiries:

App. 15

whether the speech was made as a citizen or pursuant

to the employee’s duties, Garcetti [v. Ceballos, 547 U.S.

410, 421 (2006)], and whether the content of the speech

addressed ‘a matter of interest to the community’ rather than ‘complaints over internal office affairs.’ Connick [v. Myers, 461 U.S. 138, 149 (1983)].” Crouse, 848

F.3d at 583.

The general rule is that “[w]hen public employees

make statements pursuant to their official duties,

the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421. But when it comes to

public employees who, as here, are public university

professors, the analysis is more nuanced. As this Court

has repeatedly recognized, the Garcetti rule does not

extend to speech by public university faculty members,

acting in their official capacity, that is “related to scholarship or teaching.” Id. at 425; see Adams v. Trustees of

the Univ. of North Carolina-Wilmington, 640 F.3d 550

(4th Cir. 2011); see also Lee v. York Cnty. Sch. Div., 484

F.3d 687, 694 n.11 (4th Cir. 2007) (explaining that the

Supreme Court “did not decide whether [its] analysis

would apply in the same manner to a case involving

speech related to teaching”). Thus, if we determine that

Appellant was speaking as a public employee, we must

then determine whether his speech related to “scholarship or teaching.” Adams, 640 F.3d at 563. If it did not,

then it is unprotected pursuant to Garcetti.

On the other hand, “[i]f the speech was made as a

citizen and addressed a matter of public concern, the

App. 16

second prong of the test requires a court to balance the

interest of the employee in speaking freely with the interest of the government in providing efficient services.” Id. (citing Pickering v. Bd. of Educ. of Twp. High

Sch. Dist. 205, Will Cnty. Ill., 391 U.S. 563, 568 (1968)).

Thereafter, if the “court determines that the employee’s

interest outweighed the government employer’s interest, the third prong requires a determination that

the employee’s speech caused the disciplinary action.”

Crouse, 848 F.3d at 583 (citing McVey, 157 F.3d at 27778). “In order to establish this causal connection, a

plaintiff in a retaliation case must show, at the very

least, that the defendant was aware of her engaging in

protected activity.” Constantine v. Rectors & Visitors of

George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005).

“Knowledge alone, however, does not establish a causal

connection.” Price v. Thompson, 380 F.3d 209, 213 (4th

Cir. 2004). Though not necessarily required, temporal

proximity may create the inference of causation. See

Penley v. McDowell Cnty., Bd. of Educ., 876 F.3d 646,

656 (4th Cir. 2017). “[G]enerally the passage of time

. . . tends to negate the inference of [causation]” and

“[w]here a plaintiff rests his case on temporal proximity alone, the temporal proximity must be very close.”

Id. (internal quotation marks and citations omitted).

In any event, the “causal requirement is ‘rigorous.’ ”

Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015)

(quoting Huang v. Bd. Of Governors of the Univ. of N.C.,

902 F.2d 1134, 1140 (4th Cir. 1990)). “ ‘[I]t is not enough

that the protected expression played a role or was a

motivating factor in the retaliation; claimant must

show that ‘but for’ the protected expression the [state

App. 17

actor] would not have taken the alleged retaliatory action.’ ” Id. (alterations in original) (emphasis supplied).

The district court held Appellant “failed to plausibly allege a First Amendment retaliation claim”

because he failed to “plausibly allege that he ha[d] suffered adverse action or that any allegedly protected

speech was the ‘but for’ cause of any alleged adverse

employment action.” J.A. 51. In doing so, the district

court assumed, but did not decide, that the three communications identified by Appellant were protected.

Upon review, we have no trouble concluding that at

least the survey question incident and the faculty hiring email were unprotected speech.

As to the survey question incident, Appellant’s

complaint gives no detail as to the content of the

speech. Rather, it only alleges that “[c]iting the validity

standards of the American Educational Research Association, [Appellant] asked [the presenter] about

what work had gone into the design of the question.

Survey methodology is one of [Appellant’s] areas of research, and he was concerned that . . . [the question]

might be harmful to faculty without yielding useful information.” J.A. 12. This amounts to a description of

Appellant’s perspective as to his duties as an employee. Indeed, Appellant himself describes the survey

question incident as “nothing more than doing his job.”

Id. at 13. This clearly does not equate to a matter of

public concern. Therefore, because Appellant was

speaking as an employee, we must determine whether

his speech related to scholarship and teaching. We

readily conclude that it did not. Appellant was not

App. 18

teaching a class nor was he discussing topics he may

teach or write about as part of his employment.

Though Appellant mentioned that survey methodology

was his personal area of study, this is not enough to

convert the speech, in the context of merely “doing his

job,” into a matter of scholarship. In excluding “speech

related to scholarship and teaching,” the court recognized a concern that “the teaching of a public university professor” could become the basis for adverse

action if it was unprotected pursuant to the general

rule. See Garcetti, 547 U.S. at 425, 438. While Appellant’s speech here was in his capacity as an employee,

it was not a product of his teaching or scholarship.

Therefore, it is unprotected.

The same is true for the faculty hiring email.

There, Appellant’s speech consisted of asking, “Did you

all see this,” linking the Inside Higher Ed article, and

sarcastically saying, “This kind of publicity will make

sure we rocket to number 1 in the rankings. Keep up

the good work Alyssa!” J.A. 15. The faculty hiring email

expressed no viewpoint and made no mention of policy

or anything else that might be of public concern. Instead, it was an unprofessional attack on one of Appellant’s colleagues, sent only to other faculty members

within the Department. And it plainly was unrelated

to Appellant’s teaching or scholarship.

On these facts, we are convinced that both the survey question incident and the faculty hiring email are

not protected speech. Both instances were wholly internal communications and the facts as Appellant alleges them demonstrate that he was speaking “as an

App. 19

employee” rather than a citizen. Crouse, 848 F.3d at

583 (citing McVey, 157 F.3d at 277). Appellant’s communications addressed “matter[s] of personal interest”

and “complaints over internal office affairs,” rather

than matters of public concern. Id. (citations omitted).

And, Appellant’s speech was not related to his scholarship or teaching. Therefore, neither the survey question incident nor the faculty hiring email are protected

speech.

As to the “Woke Joke” blog post, even assuming, as

the district court did, that it amounted to protected

speech, Appellant fails to allege a sufficient causal

connection to state a claim for retaliation. As to temporal proximity, Appellant published the blog post on

September 3, 2018. NCSU made no mention of the

post until November 19, 2018, when Appellee Pasque

emailed Appellant about students’ reactions to the

ASHE conference. And Appellant was not removed

from the HEPA until July 5, 2019 – ten months after

the blog post was published and nearly eight months

after Appellee Pasque first emailed Appellant regarding the post. Under these circumstances, temporal

proximity is lacking.

Beyond this, the complaint itself fails to allege

that the blog post was the “but for” cause of the alleged

adverse employment action. See Raub, 785 F.3d at 885.

Appellant’s complaint makes clear that he was removed from the HEPA because of his ongoing lack of

collegiality – not because of the content of his blog post.

For example, Appellant was labeled as a bully because

of the survey question incident. And the complaint

App. 20

admits that Appellee Pasque “implied there were other

claims about [Appellant] in the [2017 report]” beyond

the survey question incident. J.A. 13. The complaint

also alleges that in the meeting where Appellant was

asked to join a new Program Area, he became “frustrated” and said “Give me a f***ing break, folks. . . .”

Id. at 19. The complaint alleges that after this meeting,

Appellant received letters from Appellee Pasque “chastising him for his use of profanity and his expressions

of frustration” and again “expressing concern about his

‘collegiality.’ ” Id. at 20. Continuing on, the complaint

admits that Appellant was warned that if he “ ‘fail[ed]

to repair the relationships among faculty in the Higher

Education program’ or display[ed] a ‘lack of collegiality’ again,” he would be removed from the HEPA. Id.

Even as to the “Woke Joke” blog post, the complaint makes clear that Appellee Pasque’s concerns

were not with the content of the post, but rather with

Appellant’s failure to “proactively address[ ] student

and faculty concerns about ‘what happened at ASHE.’ ”

J.A. at 22. And finally, the complaint alleges that Appellant was removed from the HEPA “because ‘the

Higher Education faculty were not able to make concerted progress’ on resolving issues within the Program Area.” Id. at 23.

Taking all of this together, we cannot conclude

that Appellant has sufficiently alleged that the “Woke

Joke” blog post was a “but for” cause of his removal

from the HEPA.

App. 21

IV.

Appellant’s complaint fails to sufficiently allege a

First Amendment retaliation claim. We hold that the

survey question incident and the faculty hiring email

were not protected speech. Even assuming the “Woke

Joke” blog post was protected speech, Appellant has

failed to allege that it was a “but for” cause for any alleged adverse employment action. Therefore, the district court’s order dismissing Appellant’s complaint for

failure to state a claim is

AFFIRMED.

RICHARDSON, Circuit Judge, dissenting:

Over a century ago, a Massachusetts policeman

filed suit, claiming that he was fired for speaking his

mind. In dismissing his suit, Justice Holmes famously

quipped: “The petitioner may have a constitutional

right to talk politics, but he has no constitutional

right to be a policeman.” McAuliffe v. Mayor of New

Bedford, 29 N.E. 517, 517 (Mass. 1892). Yet—like many

Holmesian aphorisms—that is no longer our law. It is

now well-settled that “citizens do not surrender their

First Amendment rights by accepting public employment.” Lane v. Franks, 573 U.S. 228, 231 (2014). Today,

when a state employer retaliates against its employee

for speaking as a citizen on a matter of public concern,

the First Amendment demands that the state justify

its action.

App. 22

Stephen Porter, a professor at North Carolina

State University, says that the University retaliated

against him for his protected speech. My friends in the

majority say otherwise. They hold that much of Porter’s speech was not protected at all, and that—for his

speech that was protected—Porter has not drawn a

plausible link to the adverse action that he suffered.

My friends err at both steps. Porter was indeed

speaking as a citizen on a matter of public concern.

And—based on his complaint’s allegations—it is

plausible that the University retaliated against him

because of it. The University thus must put forth evidence to justify its action. But, at this early stage of

litigation, the government has not made that showing.

So we should allow Porter’s suit to proceed.

I.

Background

Stephen Porter has been a tenured professor at

North Carolina State University for over a decade.

His home within the University is the College of Education—specifically, the Department of Educational

Leadership, Policy, and Human Development—where

he advises doctoral students and teaches graduatelevel research-methods courses.

Over the past several years, Porter has been increasingly critical of the direction that his academic

field has taken. And his criticisms, he says, have not

endeared him to the University’s administrators. This

case specifically is about three instances when Porter

says that he engaged in protected speech, for which he

App. 23

claims that the University retaliated against him: (1)

comments that he made at a faculty meeting, (2) an

email that he sent to fellow faculty members, and (3) a

blog post that he wrote.1

A. Porter’s speech

Our story begins in the spring of 2016, at a faculty

meeting.2 During the meeting, a Department member

proposed adding a question about diversity to student

course evaluations. Porter, however, was concerned and

made it known. He thought that “the department

was rushing to include a question that had not been

properly designed and thus might be harmful to faculty without yielding useful information.” J.A. 12. So,

citing “validity standards,” he pressed the presenter on

what work went into the design of the question. J.A.

12. Porter describes the resulting discussion as “amicable in tone.” J.A. 12. But he admits that it was “perhaps embarrassing” for the presenter, because her lack

of “consideration or testing for validity and reliability”

“became apparent.” J.A. 12. Porter’s comments at the

faculty meeting are the first instance of speech at issue.

1

Porter named a coterie of administrators—along with the

University’s Board of Trustees—as defendants in his suit. For

simplicity’s sake, I will refer to defendants collectively as the

“University.”

2

Because this case is at the Rule 12(b)(6) stage, I take the

facts as Porter’s complaint presents them, drawing all reasonable

inferences in his favor.

App. 24

The second instance came two years later, near

the end of the academic year in April 2018. Then, Porter emailed other faculty members a link to a news

article about a Department colleague, Alyssa Rockenbach. The article was critical of Rockenbach’s search

process for a new faculty member. In particular, it criticized her for conducting the search with “unusual secrecy,” and for focusing on a professor who had recently

been terminated from another university for alleged

professional misconduct (including an inappropriate

relationship with a student). J.A. 14. To Porter, Rockenbach had “cut corners” in “vetting” the professor because she had a “desire to hire a Black scholar whose

work focused on racial issues.” J.A. 14. So he emailed

the article to other Department faculty, with his own

sarcastic commentary included: “Did you all see this?

. . . This kind of publicity will make sure we rocket to

number 1 in the rankings. Keep up the good work,

Alyssa!” J.A. 15.

The third speech instance occurred after school

had resumed the following fall, when Porter published

a post on his personal blog in September 2018. His

post, titled “ASHE Has Become a Woke Joke,” criticized an upcoming conference hosted by “ASHE”—the

Association for the Study of Higher Education. J.A. 17.

In Porter’s view, “the focus of the conference had

shifted from general post-secondary research to a focus

on social justice.” J.A. 17. So his blog post cited a colleague’s research on the conference’s topics, which—to

his eyes—suggested a lack of academic rigor. The research found that terms like “qualitative,” “identity,”

App. 25

“diversity,” “inclusion,” “oppress,” and “privilege” came

up more often than terms like “quantitative,” “regression,” “propensity score,” and “quantile.” J.A. 37–38.

Porter ended his blog post by making his position on

attendance clear: “I prefer conferences where 1) the attendees and presenters are smarter than me and 2) I

constantly learn new things. That’s why I stopped attending ASHE several years ago.” J.A. 38.

B. The University’s response.

Porter’s blog post immediately created a stir

online. And the University’s own reaction to it would

come soon enough. But that was just the tipping point.

By that time, the University had already responded at

each step along the way.

Unbeknownst to Porter, his faculty-meeting comments earned him a demerit in the University’s 2016–

2017 academic year report, which had labeled him a

“bully” based on his comments. J.A. 12. That accusation

came up again during the fall semester of the 2017–

2018 academic year, when the new Department head—

Penny Pasque—came by Porter’s office under the guise

of a get-to-know-you meeting. During the meeting, she

accused Porter of “bullying” his colleagues—a charge

that she repeated in an email that she sent him a few

months later. J.A. 13. When Porter asked for examples

of his alleged “bullying,” she cited only his facultymeeting comments.

Porter’s faculty-hiring email from that spring engendered a similar response. Both Rockenbach—the

App. 26

email’s subject—and another of Porter’s colleagues forwarded Pasque a copy. The next week, Pasque again

requested to meet with him. At the meeting, she “repeatedly asked him” why he sent his email. J.A. 15.

And it was only two weeks later, at a follow-up meeting, when she first suggested that Porter leave his

program area within the Department. Porter was

“dismayed” and “disturbed,” as he thought that being

removed from his program area would “severely marginalize” him from the other faculty and his Ph.D. advisees. J.A. 16. Though his annual evaluation that year

was good, it cautioned Porter to be “collegial.” J.A. 17.

Things came to a head the following fall after Porter’s blog post. A little over a month after the post—

and in the wake of the controversy that it generated—

Pasque once again suggested removing him from his

program area, this time in front of his colleagues at another faculty meeting in October. This was the second

time in six months that she’d made this suggestion:

first, after Porter’s email, and second, after Porter’s

blog post. Although the meeting was ostensibly about

whether to hire a new professor, Porter says that its

focus quickly shifted to why he would not leave his program area. In frustration, Porter responded: “Give me

a fucking break folks. I was the one who said [the

new professor] should come. And now I’m the bad guy

because I don’t want to leave Higher Ed for a nonexistent program area.” J.A. 19–20.

Pasque sent Porter a letter a few days later, “chastising” him “for his use of profanity” during the meeting. J.A. 20. And the next month, in November, she sent

App. 27

him another letter, once again criticizing Porter’s “collegiality.” J.A. 20. According to Porter, as evidence of his

“collegiality” problem, Pasque’s November letter specifically cited his faculty-meeting comment and his

email, along with his “response to being asked to leave

[his program area]” a month earlier. J.A. 20. Pasque

concluded her letter by saying that, if Porter did not

“repair the relationships among faculty,” then she

would remove him from the program area against his

will. J.A. 20.

She followed through on this promise at the end of

the school year. In Porter’s annual evaluation that

summer, Pasque said that she was removing him from

the program area because “ ‘the Higher Education faculty were not able to make concerted progress’ on resolving issues.” J.A. 23.

This decision followed a long disagreement about

how Porter ought to respond to the controversy that his

blog post had generated. A week after Pasque sent her

November letter criticizing Porter’s “collegiality,” she

suggested that he conduct a “community conversation”

about his blog post since it had supposedly provoked

“strong reactions” from the graduate students. J.A. 21.

When Porter pressed her on how many students had

concerns, she told him that it was only two out of the

sixty doctoral students. So he demurred on having a

public event, but offered to speak privately with any

students who had concerns. And he suggested that the

Department’s faculty discuss further whether a public

event was warranted when they met after the holidays.

App. 28

But the topic did not make the agenda. Instead,

Pasque met privately with Porter in February, where

she “repeatedly expressed her frustration that [he] had

not proactively addressed student and faculty concerns

about ‘what happened at ASHE’ ”—the conference that

Porter’s blog post had criticized—and “cited [Porter’s]

lack of proactive action as a further example of ” the

“lack of collegiality” that she had described in her November letter. J.A. 22.

C. Porter’s lawsuit.

After the University removed Porter from his program area, his worst fears were realized. For the following school year, he found that his removal resulted

in his “near-total exclusion from Ph.D. activities,”

which meant that he could not recruit, or be assigned,

any new doctoral advisees. J.A. 27. And he was even

prohibited from participating in key evaluations of his

then-existing advisees.

Porter’s exclusion continued the next year when

the Department formed a new program area for doctoral students. All the previous program area’s members were invited to join except for Porter. He saw this

as yet another impediment to getting new Ph.D. advisees. And the University confirmed his suspicions

when the Department head told Porter that he “could

make offers of admission to doctoral candidates,” but

that “those candidates would be encouraged to switch

away from [him] . . . to the new [program area].” J.A.

29. By then, it was clear to Porter that recruiting new

App. 29

doctoral advisees would be nearly impossible. Since advising doctoral candidates was one of the “core requirements of his job,” this jeopardized his tenure. See J.A.

29.

So Porter sued the University, seeking damages

and injunctive relief. After the University moved to

dismiss, the district court sided with the University

and dismissed Porter’s claims. Porter timely appealed.

II.

Discussion

The First Amendment famously provides that

“Congress shall make no law . . . abridging the freedom

of speech.” U.S. Const. amend. I. But its protection

doesn’t end at Congress’s laws. Through the Fourteenth

Amendment, this guarantee also ensures against intrusion by the states. See Gitlow v. New York, 268 U.S.

652, 666 (1925). And it extends to times when, rather

than directly prohibiting speech, the government retaliates against a citizen for engaging in it—including by

taking an adverse employment action against a public

employee. See, e.g., Perry v. Sindermann, 408 U.S. 593,

596–97 (1972).

Most free speech cases follow essentially the same

path. The first step is to figure out whether the citizen

engaged in protected speech. See, e.g., Virginia v. Black,

538 U.S. 343, 358–59 (2003) (discussing unprotectedspeech categories, including fighting words, incitement,

and true threats). Next, a court must determine whether

the government restricted the citizen’s ability to engage in that speech. See, e.g., United States v. O’Brien,

App. 30

391 U.S. 367, 376 (1968) (noting that laws regulating

conduct may also have “incidental limitations” on expression). If a claim survives these two steps, then we

proceed to a third: The government bears the burden

to produce evidence showing that its speech restriction

was nonetheless justified under the appropriate level

of means-end scrutiny. See, e.g., Sharpe v. Winterville

Police Dep’t, 59 F.4th 674, 681 & n.7 (4th Cir. 2023).

When a public employee asserts that his employer has retaliated against him in violation of the

First Amendment, we apply three winding steps that

roughly conform to these contours. See McVey v. Stacy,

157 F.3d 271, 277–79 (4th Cir. 1998); Adams v. Trustees

of the Univ. of N. Carolina-Wilmington, 640 F.3d 550,

560–64 (4th Cir. 2011).

First, we must make a “threshold inquiry” into

whether the employee engaged in protected speech.

Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000)

(en banc). Although the majority blurs the lines, this

initial inquiry involves two distinct questions: (1) was

the plaintiff speaking as an employee; and (2) was he

speaking about a matter of public concern? Garcetti,

547 U.S. at 421–22. The first question—whether he

was speaking as an employee—boils down to whether

the plaintiff made his speech pursuant to his “official duties.” Id. at 421. If so, then he was acting as a

governmental mouthpiece and is not entitled to First

Amendment protection.3 See id.; Crouse v. Town of

3

As the majority recognizes, see Majority Op. at 13–14, our

precedent suggests that Garcetti’s rule—which withdraws First

App. 31

Moncks Corner, 848 F.3d 576, 583 (4th Cir. 2017). Such

speech was effectively the government’s speech, and

the government may “exercise . . . control over what [it]

itself has commissioned or created.” Garcetti, 547 U.S.

at 422. But, if the plaintiff did not speak pursuant to

his official duties, then he spoke as a citizen and we

must ask the second question: whether the content of

his speech addressed “matters of public concern.” See

Grutzmacher v. Howard Cnty., 851 F.3d 332, 343 (4th

Cir. 2017) (noting that “a matter of public concern” includes “an issue of social, political, or other interest to

a community” (quoting Urofsky, 216 F.3d at 406)).

If the answer to both questions is yes—i.e., the

plaintiff spoke as a citizen upon a matter of public concern, and thus engaged in protected speech—then we

move on to the second step: did the government restrict

that speech? In other contexts, this question is easy.

For example, prior restraint obviously restricts speech.

See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 711–

13 (1931). But retaliation is more nuanced, since the

government is not regulating speech directly. Instead,

Amendment protection from speech made pursuant to a state employee’s official duties—does not apply to speech that public university professors make as part of their “scholarship or teaching.”

See Adams, 640 F.3d at 562–64. Such teaching or scholarship,

even if nominally part of a professor’s official duties, is not attributable to the government as Garcetti intended. Id. In other

words, though professors’ official duties may involve producing

scholarship and teaching students, their speech while doing so is

still protected. See Meriwether v. Hartop, 992 F.3d 492, 504–07

(6th Cir. 2021). Because I find that Porter was not speaking pursuant to his official duties, I need not consider the scope of any

exception for duties related to scholarship or teaching.

App. 32

the censorship is indirect. The employee can speak, but

only under threat of government punishment. So the

employee often chooses not to speak at all. See Rankin

v. McPherson, 483 U.S. 378, 384 (1987) (“[T]he threat

of dismissal from public employment is . . . a potent

means of inhibiting speech.” (cleaned up)).

Thus, in the public employment retaliation context, indirect censorship takes the form of an adverse

employment action. And, to show that their speech

has been indirectly censored, employee-plaintiffs must

demonstrate “a sufficient causal nexus between the

protected speech and the retaliatory employment action.” Ridpath v. Bd. of Governors, 447 F.3d 292, 316

(4th Cir. 2006); see also McVey, 157 F.3d at 278 (explaining that speech must be a “substantial factor” in

an adverse employment action to make out a retaliation claim). Generally, such a plaintiff must show that,

“but for” his protected speech, he would not have suffered the adverse action.4 See Ridpath, 447 F.3d at 316

n.26 (citing Huang v. Bd. of Governors, 902 F.2d 1134,

1140 (4th Cir. 1990)).

4

A plaintiff may make this showing by relying on the burden-shifting framework from Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 286–87 (1977). That framework allows us to presume but-for cause where the plaintiff establishes

that his protected speech was a “motivating factor” in his adverse

action, unless the government proves “by a preponderance of the

evidence that it would have reached the same decision” absent

that speech. Id. at 287; see also Penley v. McDowell Cnty. Bd. of

Educ., 876 F.3d 646, 654 (4th Cir. 2017) (discussing the relationship between Mt. Healthy’s burden-shifting framework and the

but-for causation requirement).

App. 33

If the plaintiff ’s claim passes these two steps, then

we proceed to the third and final step, where the government must justify its restriction using means-end

scrutiny. See Smith v. Gilchrist, 749 F.3d 302, 309 (4th

Cir. 2014) (citing Rankin, 483 U.S. at 388). The form of

scrutiny that we use to evaluate retaliation claims by

public employees is the so-called Pickering-Connick interest balancing. See Pickering v. Bd. of Educ., 391 U.S.

563, 548 (1968); Connick v. Myers, 461 U.S. 138, 149–

50 (1983). That test requires us to weigh three interests. On one side of the ledger are the employee’s interest in speaking and the “public interest in having

free and unhindered debate on matters of public importance.” Pickering, 391 U.S. at 573; see also Brickey

v. Hall, 828 F.3d 298, 304 (4th Cir. 2016). We weigh

those interests against the university’s interest as an

employer in “promoting the efficiency of the public services it performs through” that employee. Pickering,

391 U.S. at 568; see also Connick, 461 U.S. at 150.

Throughout our three-step inquiry, we cannot forget that Porter’s suit was dismissed at the pleading

stage. We thus must take all the facts that he alleged

in his complaint as true, drawing all reasonable inferences in his favor. See Mays v. Sprinkle, 992 F.3d 295,

299 (4th Cir. 2021). And, in the end, our question is

simply whether his claims can plausibly survive at

each step. See id.

App. 34

A. Porter engaged in protected speech.

Contrary to the majority’s terse conclusions, each

one of Porter’s three speech instances—his facultymeeting comments, his faculty-hiring email, and his

blog post—constitutes protected speech. That is because, in each instance, he was speaking as a citizen

on a matter of public concern.

Start with what’s easiest: Porter’s blog post. The

majority wisely does not contest that it is protected

speech under McVey. Writing a post in your own time,

on your personal blog, is speaking as a citizen rather

than pursuant to your official duties as an employee.

And the blog post’s subject was doubtless a matter of

public concern. After all, Porter alleged that the blog

post generated controversy on Twitter, at the conference that it criticized, and at the University itself.

That’s little surprise. Just searching the terms “woke

college” on Google would confirm that Porter’s blog

post fell well within a lively public debate.

Porter’s faculty-meeting comments and his faculty-hiring email are slightly closer calls. But only

slightly. As to the former, it is true that Porter made

his comments at an internal faculty meeting where the

public was not present. Yet the mere fact that a plaintiff chooses to speak “inside his office, rather than

publicly,” does not mean that he is speaking as an employee instead of a private citizen. Garcetti, 547 U.S. at

420; Givan v. Western Line Consol. Sch. Dist., 439 U.S.

410, 413–16 (1979). And, though Porter’s question had

to do with a topic within his professional expertise—

App. 35

survey design—it is also irrelevant that the “subject

matter” of his speech was “related to [his] job.” Garcetti, 547 U.S. at 421.

Instead, the “critical question” in distinguishing

speech made as an employee from speech made as a

citizen is “whether the speech at issue is itself ordinarily within the scope of an employee’s duties.” Lane, 573

U.S. at 240. In other words, we ask whether Porter

“was fulfilling a responsibility imposed by his employment” when he objected to the diversity question that

a colleague proposed adding to student surveys. See

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2425

(2022). And it is hard to believe that Porter had a duty

or a responsibility to make his objection.

Indeed, “[t]he majority engages in no meaningful

inquiry into [Porter’s] official duties” as a professor. See

Crouse, 848 F.3d at 588 (Motz, J., concurring in the

judgment). If my friends claim that Porter was acting

pursuant to his official duties, then “there must have

been some job duty” that he was “supposedly carrying

out.” See id. Yet the majority points to none. The closest

that they get is by noting that Porter, in his complaint,

described his faculty-meeting comment as “nothing

more than doing his job.” Majority Op. at 16 (quoting

J.A. 13). But this is a common figure of speech. Superman deflects praise by saying that he’s “just doing his

job,” even though the citizens of Metropolis never cut

him a paycheck. Reading Porter’s complaint in the

light most favorable to him—as we are required to do

at this stage—it is plausible that he had no official responsibility to lodge his objection. See Andrew v. Clark,

App. 36

561 F.3d 261, 267 (4th Cir. 2009). Accordingly, when he

did so, he was speaking as a citizen, not as an employee.5

Moving to the next question at this threshold step,

Porter’s faculty-meeting comment also addressed a

matter of public concern. Again, he made it in response

to a colleague’s proposal to “add a question on diversity

to student course evaluations.” J.A. 12. Porter’s worry

was that, “in response to social pressure, the department was rushing to include a question that had not

been properly designed.” J.A. 12. So he asked about the

testing that went into the diversity question.

Unquestionably there has been a growing, and

wide-ranging, public debate about how colleges ought

to emphasize diversity, equity, and inclusion. Cf. Adams, 640 F.3d at 565. Though the exact words Porter

used in the faculty meeting are not in the record, reading his complaint in the light most favorable to him

shows that its subject matter was well within the realm

of this public debate. And anything that “involves an

5

The majority in Crouse perhaps suggests that—even when

a state employee did not have an actual duty to undertake the

speech—if a reasonable member of the public observing the speech

may have imputed it to the government, then that might alone

render his speech unprotected under Garcetti’s “official duties”

rule. See Crouse, 848 F.3d at 585 (noting that the plaintiffs “were

clearly identified as police officers” to the public).

I tend to agree with Judge Motz that, to the extent that we’ve

hinted at such a rule, it deviates from Garcetti and its progeny at

the Supreme Court. But, even if we did have such a rule, it would

not apply to Porter’s faculty-meeting comment, which the public

never heard.

App. 37

issue of social, political, or other interest to a community” involves a matter of public concern. Kirby v. City

of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004).

Thus, because Porter made his faculty-meeting comment as a citizen, and because it was on a matter of

public concern, it is protected speech.

The same is true of Porter’s faculty-hiring email.

This time, we do have the exact words that he used. He

linked to an article criticizing a colleague’s hiring decisions, saying, “Did you all see this,” before sarcastically adding: “This kind of publicity will make sure

we rocket to number 1 in the rankings. Keep up the

good work, Alyssa!” J.A. 15. As with his faculty-meeting

comment, there are no grounds to think that he had a

duty to send this email; the very notion strains credulity. So, as with the faculty-meeting comment, he sent

his email in his capacity as a citizen, not as an employee.

His email, like his faculty-meeting comment, was

also on a matter of public concern. The article that he

linked to apparently criticized his colleague for conducting her hiring process with “unusual secrecy,” and

for including among the finalists a former professor

who was fired from his previous job after allegations

emerged that he was misusing the university’s staff for

personal business, and that he had “an inappropriate

relationship with a student.” J.A. 14.

Even were we to set aside Porter’s concern that his

colleague “cut corners [in] vetting” the finalist “out of a

desire to hire a Black scholar whose work focused on

App. 38

racial issues,” J.A. 14, news that the University almost

hired someone who faced these serious allegations

would alone interest the public. Cf. Lane, 573 U.S. at

240 (“The importance of public employee speech is especially evident in the context of this case: a public corruption scandal.”). And the public has also increasingly

scrutinized relationships between two parties who are

subject to a power imbalance (like a professor and a

student). Indeed, the very fact that the topic of Porter’s

speech was the subject of a news article may alone render it a matter of public concern—after all, what media

company would publish a news article about something that wasn’t newsworthy? Cf. City of San Diego v.

Roe, 543 U.S. 77, 83–84 (2004) (“[P]ublic concern is

something that is a subject of legitimate news interest.”).

The majority counters with two retorts: Porter’s

email (1) was “sent only to other faculty members” and

(2) “was an unprofessional attack on one of [his] colleagues.” Majority Op. at 15–16. Both are irrelevant.

As discussed above, when asking whether a person

spoke as an employee or as a citizen, it makes no difference whether the speech reached the public. See

Givhan, 439 U.S. at 413–15. And that question is also

inapposite to deciding whether the speech’s subject

matter addressed the sort of thing that the public

would find interesting. While the venue might be relevant when we balance the interests at stake, it does

not bear on the threshold inquiry of whether Porter

was speaking as a citizen on a matter of public concern.

See Ufrosky, 216 F.3d at 407 (“[T]he place where the

App. 39

speech occurs is irrelevant: An employee may speak as

a citizen on a matter of public concern at the workplace.” (cleaned up)).

So too with the charge that Porter’s email was an

“unprofessional attack.” The Supreme Court has been

clear: “The inappropriate or controversial character of

a statement is irrelevant to the question whether it

deals with a matter of public concern.” Rankin, 483

U.S. at 387. Instead, it is canon that “debate on public

issues . . . may well include vehement, caustic, and

sometimes unpleasantly sharp attacks.” New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The

Court went so far as to hold in Snyder v. Phelps, 562

U.S. 443 (2011), that picketing a military funeral with

signs reading “Thank God for 9/11,” “God Hates Fags,”

and “You’re Going to Hell” was still speaking on a matter of public concern. See id. at 454. To call those messages “particularly hurtful,” as the Court did, id. at

456, is a gross understatement. And Porter’s sardonic

email does not come remotely close to those messages.

See Muller v. Fairfax Cnty. Sch. Bd., 878 F.2d 1578,

1583 (4th Cir. 1989) (“[The] use of satire to comment

on a matter of public concern d[oes] not deprive [an individual] of the protection afforded by the first amendment.”). But even if it did, it would not matter at this

stage. A message’s form is distinct from its subject

matter. In Snyder, the protestors’ vitriol made no difference to the fact that their message addressed a matter of public concern. The same is true here.

App. 40

B. Porter plausibly alleged that he suffered retaliation because of that speech

Since Porter engaged in protected speech, we turn

to whether he suffered retaliation because of it. The retaliatory act, Porter says, was removing him from his

old program area, and then refusing to admit him to

the new one, thus interfering with his ability to interact with his current advisees, making it almost impossible to recruit new ones, and putting his tenure in

jeopardy. And he easily satisfies the causation requirement, since—according to his complaint—Pasque explicitly mentioned both his faculty-meeting comment

and his faculty-hiring email in her November letter

threatening to remove him. So when she followed

through on her threat the following summer, it’s reasonable to conclude that the reasons that she listed in

her initial letter—which included two instances of protected speech—were all but-for causes of her later decision. See Ridpath, 447 F.3d at 318–19.

For much the same reason, Porter’s blog post was

also a but-for cause of his removal from the program

area, even if the connection is somewhat more attenuated. When Pasque made her November threat, she

cited his “collegiality” as her concern, and said that she

would remove him if he did not “repair relationships

among faculty” in the Department. J.A. 20. After her

November letter, there was—at least, according to the

complaint—only one other instance of “un-collegiality”

that Pasque cited: Porter’s hesitation to hold a “community conversation” discussing his blog post. J.A. 21.

In February, she met with Porter and “expressed her

App. 41

frustration that [he] had not proactively addressed

student and faculty concerns” about the controversy

that his post had caused at ASHE, the conference that

it had criticized. J.A. 22. So, taking Porter’s complaint

at its word, and drawing all reasonable inferences in

his favor: But for his blog post, Pasque would not have

asked Porter to hold a “community conversation,” and

but for his hesitation to do so, she would not have

removed him from his program area. That’s but-for

cause, even with the blog post standing alone.6

6

The majority, of course, disagrees that the faculty-meeting

comment and the faculty-hiring email are protected speech. So

they only ask whether Porter showed that his blog post was, plausibly, a but-for cause of his removal from his program area. And

they conclude that he has not made an adequate showing. Their

analysis focuses on the “temporal proximity” between his blog

post and his removal, which they say was “lacking,” since Porter

was not removed until ten months after he published his post.

Majority Op. at 17. But even if I accept the majority’s premises

(and I do not), their conclusion does not follow.

Let’s review the timeline. Porter published his blog post in

September. Pasque suggested that he leave his program area at

the October faculty meeting, and formally threatened to remove

him in her November letter. Finally, she followed through on her

threat in July, when she gave Porter his annual evaluation. It is

true that ten months elapsed between the post and the removal.

But we have found a similar gap to be sufficient at the motion-todismiss stage where a plaintiff shows that the employer “knew of

the protected activity” and then took the adverse action “at the

first available opportunity.” See Price v. Thompson, 380 F.3d 209,

213 (4th Cir. 2004). And here, it’s plausible that, although Pasque

learned of Porter’s blog post in the fall, she waited until the summer to remove him from his program area, perhaps because it

would not have been practicable to remove him in the middle of

the school year.

App. 42

C. The University has not produced sufficient evidence to justify its action

Having concluded (1) that all three instances of

Porter’s speech were protected, and (2) that the University restricted his speech by retaliating against him

because of it, the University must show (3) that its decision to remove him from his old program area (and to

bar him from the new program area) was justified under Pickering-Connick interest balancing. Again, that

balancing test requires us to weigh Porter’s interest in

speaking (alongside the public’s interest in his speech)

against the government’s interest in restricting it. See

Garcetti, 547 U.S. at 417–19.

Consider first the government’s interest in providing efficient services to the public. In doing so we

recognize that the government’s “interests as an employer” differ from its interests in regulating “the citizenry in general.” Pickering, 391 U.S. at 568. When

acting as an employer, the government must have “discretion and control over the management of its personnel and internal affairs,” including “the prerogative

to remove employees whose conduct hinders efficient

More critically, the majority focuses on the wrong period.

Though Pasque did not actually remove Porter until July, she first

threatened to do so in November: only two months after he published his blog post. And she suggested that he leave the program

area even earlier, at the October meeting: only one month after

the post. So the temporal proximity between his post and her

threats was actually quite close. Cf. Constantine v. Rectors and

Visitors, 411 F.3d 474, 501 (4th Cir. 2005) (concluding that a fourmonth gap was sufficiently close temporal proximity to allow a

retaliation claim to survive a motion to dismiss).

App. 43

operation.” Connick, 461 U.S. at 151 (quoting Arnett v.

Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring)). To evaluate this interest, we have pointed to an

array of potentially relevant factors. See McVey, 157

F.3d at 278.7

Critically, the government’s interest as an employer varies with context: A police department has

different interests in controlling its employes than a

public university does. See Ridpath, 447 F.3d at 317

(noting that “we must take into account the context of

the employee’s speech and the extent to which it disrupts the operation and mission of the institution”

(cleaned up)); Jurgensen v. Fairfax Cnty., 745 F.2d 868,

880 (4th Cir. 1984) (analyzing the state’s interest in

“discipline” “on a spectrum,” with “university professors at one end” and “police on the other”). So here we

must look through the lens of a university and its mission. A police force is “paramilitary,” so “discipline is

demanded, and freedom must be correspondingly denied.” Maciariello v. Sumner, 973 F.2d 295, 300 (4th

Cir. 1992) (cleaned up). But dispute and disagreement

7

These factors include “whether the employee’s speech (1)

‘impairs discipline by superiors’; (2) impairs ‘harmony among

co-workers’; (3) ‘has a detrimental impact on close working relationships’; (4) impedes the performance of the public employee’s

duties; (5) interferes with the operation of the agency; (6) undermines the mission of the agency; (7) is communicated to the public

or to co-workers in private; (8) conflicts with the ‘responsibilities

of the employee within the agency’; and (9) makes use of the ‘authority and public accountability the employee’s role entails.’ ” Id.

(quoting Rankin, 483 U.S. at 388–91).

App. 44

are integral, not antithetical, to a university’s mission.

Cf. Jurgensen, 745 F.2d at 880.

In any event, we need not conduct a full contextual

analysis of the government’s asserted interests at this

stage. Whenever the government restricts protected

speech, it must justify those restrictions with evidence that they furthered its legitimate interests. See

Sharpe, 59 F.4th at 681–82 & n.8 (allowing a First

Amendment challenge to proceed past the motion-todismiss stage because the government had not demonstrated how the restriction at issue was tailored to its

legitimate interests). The University can point to “common sense and caselaw to establish . . . a valid interest,” but “ ‘mere conjecture’ is inadequate.” Id. at 681

(quoting Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,

392 (2000)); see also Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 508 (1969) (noting that “undifferentiated fear or apprehension of disturbance is not

enough to overcome the right to freedom of expression”

in schools).

Here, there is scant evidence to support the University’s asserted interest. See Durham v. Jones, 737

F.3d 291, 302 (4th Cir. 2013) (rejecting mere “lip service

to ostensible damage to office morale, relationships

between colleagues, and the function of the office generally” without “articulat[ing] any way in which the

[environment] would have been different or was actually different due to [a plaintiff ’s] statements”). That

is unsurprising, since we are at the Rule 12(b)(6) stage,

and so are limited to the allegations in Porter’s complaint. And we must read those factual allegations in a

App. 45

light most favorable to him, drawing all inferences in

his favor. After doing so, the University’s interest in

regulating his speech seems limited.

Take Porter’s blog post. From his allegations, we

can only identify two of the sixty doctoral students who

expressed concerns with his blog post. Without more,

it’s hard to see how that post could have impeded the

University’s operations so much that it outweighed his

interest in speaking freely about these matters of public concern (and the public’s interest in hearing his

views).

The same goes for Porter’s other protected speech.

Reading his complaint in a light most favorable to him,

perhaps a single faculty member complained on the departmental climate survey about his faculty-meeting

comment, while—a whole two years later—two of his

colleagues were upset enough by his faculty-hiring

email to forward it to Pasque. But occasional discord or

even outright hostility among a few professors does

not itself establish a strong governmental interest. Cf.

Street v. New York, 394 U.S. 576, 592 (1969) (“It is

firmly settled that under our Constitution the public

expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of

their hearers.”). That is especially true in the context

of a university, where disagreement between professors should be the norm.

Against whatever governmental interest we can

glean from this record, we must weigh Porter’s and the

public’s interest in his speech. Again, the university

App. 46

setting forms the stage on which we perform this balancing. And, at the university, the scales are tipped in

favor of more speech: “Our Nation is deeply committed

to safeguarding academic freedom.” Keyishian v. Bd. of

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

Why? Because the freedom for professors to discuss or investigate controversial problems without

interference or penalty plays a “vital role in [our] democracy.” Sweezy v. New Hampshire, 354 U.S. 234,

250 (1957) (plurality). “It is the purpose of the First

Amendment to preserve an uninhibited marketplace of

ideas in which truth will ultimately prevail.” Red Lion

Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). A robust

marketplace of ideas in our society requires an even

more robust marketplace in our schools. See Adler v.

Bd. of Educ., 342 U.S. 485, 508 (1952) (Douglas, J., dissenting) (“The Constitution guarantees freedom of

thought and expression to everyone in our society. All

are entitled to it; and none needs it more than the

teacher. The public school is in most respects the cradle of our democracy.”).8 And professors have valuable

8

This principle—that a democratic society requires schools

to foster a robust debate of controversial views—is deeply woven

into our civilizational fabric. See University of Chicago, Report of

the Committee on Freedom of Expression (2015) (“[W]ithout a vibrant commitment to free and open inquiry, a university ceases

to be a university.”); Letter from Thomas Jefferson to William

Roscoe (Dec. 27, 1820), in 15 The Writings of Thomas Jefferson

302, 303 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1904)

(The University of Virginia would be founded on “the illimitable

freedom of the human mind. For here we are not afraid to follow

truth wherever it may lead, nor to tolerate any error so long as

reason is left free to combat it.”); Plato, The Apology, in Dialogues

App. 47

perspectives on how a university should foster that

marketplace. See Pickering, 391 U.S. at 571–72 (noting

that teachers are likely to have informed opinions

about school operations). While discovery may shed

light on how these constitutional truths apply to Porter

and his specific university, Porter has surely alleged a

weighty interest in his speech.

Accordingly, the University must do more to

show, in this instance, that its interests justified silencing Porter’s concerns. Discovery might produce

evidence to show just that.9 “But on this record”—at

this nascent stage of litigation—“we cannot yet tell.”

Sharpe, 59 F.4th at 682; see also Ridpath, 447 F.3d at

318; McVey, 157 F.3d at 279. Porter’s claims should

thus proceed.10

of Plato 342–68 (Aldine ed., B. Jowett trans., 1898) (Socrates defending his right to discuss controversial topics with students).

9

For example, the University might demonstrate its strong

interest in collegiality and harmony by showing that it has fired

all professors who used profanity or sarcasm. In contrast, the evidence might show that any claimed reliance on collegiality is pretextual. But, in the end, the University bears the burden of

showing that Porter’s speech so disrupted its operations and mission that it justifies infringing on the weighty First Amendment

interests in Porter’s speech.

10

A note on remedies. The district court held, in the alternative, that Porter’s claims for damages against the University’s

administrators in their personal capacities were barred by

qualified immunity, because—even if their actions violated the

First Amendment—any violation was not “clearly established.”

J.A. 51–52. Perhaps. But see Adams, 640 F.3d at 566. But, either

way, that would not dispose of his case, because Porter also sued

for injunctive relief, which is “prospective” under Ex parte Young,

209 U.S. 123 (1908).

App. 48

*

*

*

“Flaws are not always best laid bare by pallid

speech.” Manning v. Caldwell, 930 F.3d 264, 305 (4th

Cir. 2019) (en banc) (Wilkinson, J., dissenting specially). While “civil discourse is often the best antidote

to a coarsening culture,” civility’s dictates “may also be

used as a censoring mechanism to drain and dilute dissenting voices.” Id. For those who disagree with Stephen Porter’s message, he might indeed sound like an

unpleasant agitator, disturbing the peace. But transgressions of tone tend to ring loudest when we disagree

with the speaker’s views.

Our job, however, is not to appraise the value of

Porter’s speech or his personal virtue. It’s to take the

facts as alleged in the complaint, read them in a light

most favorable to Porter, and then decide whether he’s

plausibly stated a claim for relief. And, drawing all reasonable inferences in Porter’s favor, the University

threatened his tenure by removing him from his program area because of his protected speech. The University has not yet produced evidence to justify its

decision. And no such evidence springs forth from the

face of the complaint. So Porter’s claims ought to survive, and the district court’s contrary decision ought to

be reversed. This is not a close call.

My friends in the majority apparently seek to return to the days of Justice Holmes. But only for certain

plaintiffs. In doing so, they have developed a new “bad

man” theory of the law: identify the bad man; he loses.

But see Oliver Wendell Holmes, The Path of the Law,

App. 49

10 Harv. L. Rev. 457 (1897). The majority’s threadbare analysis willfully abandons both our precedent

and the facts in search of its desired result. Even for a

Holmesian, that cynicism breaks new ground.

I thus respectfully dissent.

App. 50

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF NORTH CAROLINA

WESTERN DIVISION

No. 5:21-CV-365-BO

STEPHEN R. PORTER, PH.D., )

)

Plaintiff,

)

v.

)

ORDER

)

BOARD OF TRUSTEES OF

(Filed Jun. 17, 2022)

NORTH CAROLINA STATE )

UNIVERSITY, W. RANDOLPH )

WOODSON, MARY ANN

)

DANOWITZ, JOY GASTON

)

GAYLES, JOHN K. LEE, and )

PENNY A. PASQUE, individually)

and in their official capacities, )

)

Defendants.

This cause comes before the Court on defendants’

motion to dismiss. Plaintiff has responded, defendants

have replied, and in this posture the matter is ripe for

ruling. Plaintiff has also sought leave to file a sur-reply

in opposition to the motion to dismiss, which defendants oppose. For the reasons that follow, defendants’

motion to dismiss is granted and this action is dismissed.

BACKGROUND

Plaintiff initiated this action by filing a complaint

on September 14, 2021. Plaintiff alleges claims against

App. 51

the Board of Trustees of North Carolina State University, the Chancellor of North Carolina State University

(NCSU), the Dean of NCSU’s College of Education, a

professor and program coordinator in the Department

of Educational Leadership, Policy, and Human Development (Dept. of Educational Leadership) at NCSU,

and the current and prior heads of the Dept. of Educational Leadership. Plaintiff alleges that defendants violated plaintiff ’s right to free speech under the First

and Fourteenth Amendments and seeks damages, a

declaratory judgment, and a permanent injunction.

See 42 U.S.C. § 1983; 22 U.S.C. § 2201.

Plaintiff alleges as follows in his complaint. [DE

1]. Plaintiff was hired by NCSU in 2011 as a tenured

professor in the Dept. of Educational Leadership. Id.

¶ 13. Plaintiff was hired to teach courses in graduatelevel statistics and research methods in the College of

Education, of which the Dept. of Educational Leadership is a part. Id. When plaintiff was hired he joined

the Higher Education Program Area within the Dept.

of Educational leadership. Id. The Dept. of Educational Leadership offers both a master’s degree and a

Ph.D. and does not offer degrees to undergraduate students. Id. ¶ 14. While at NCSU plaintiff has had “limited involvement” with the master’s degree program,

has no master’s degree advisees, and does not attend

events which are related only to the master’s degree.

Id. ¶ 15.

In 2015, the College of Education faculty voted to

create the Scholar Leader Ph.D. program. Id. ¶ 16. As

a part of this change, each Ph.D. program within the

App. 52

College of Education continues to have its own program-specific courses, but all College of Education

Ph.D. students take common research methods and

Scholar Leader courses. Id. All Ph.D. programs are located within a Program Area of Study, which is distinct

from a Program Area. Id. ¶ 17. In essence, separate

tracks were created for master’s degree and Ph.D.

students, but plaintiff alleges that the Dept. of Educational Leadership ignored these distinctions and continued to address both master’s and Ph.D. matters

within the original Program Areas. Id.

Plaintiff alleges that, prior to suffering adverse

employment action, he spent “considerable time” on

Higher Education Ph.D. activities, including advising

Higher Education Ph.D. students, serving on Higher

Education Ph.D. committees, and actively recruiting

prospective Ph.D. students. Id. ¶ 18. Plaintiff further

alleges that he has been outspoken in recent years

about his concern regarding the focus on “so-called

‘social-justice’ affecting academia in general” and “his

concern that the field of higher education study is

abandoning rigorous methodological analysis in favor

of results-driven work aimed at furthering a highly

dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’ ”

Id. ¶ 19.

Plaintiff alleges that defendants retaliated against

him for exercising his right to free speech, specifically

identifying three statements or communications that

he made in 2016-2018.

App. 53

In the spring of 2016, plaintiff alleges that he expressed concerns at a department meeting about a proposal to add a question about diversity on student

course evaluations. Id. ¶ 20. Plaintiff describes the discussion as amicable but notes that the incident was

later referenced in a May 2017 departmental report by

NCSU’s Office of Institutional Equity and Diversity

wherein plaintiff was labeled as a “bully.” Id. ¶¶ 23-24.

Defendant Pasque became head of the Dept. of Educational Leadership at the beginning of academic year

2017-18 and discussed the report with plaintiff during

a meeting in November 2017. Id. ¶¶ 25-26. In January

2018, defendant Pasque emailed plaintiff restating the

concern regarding “bullying” and invited plaintiff to respond. Id. ¶ 29. Pasque’s email was later included in

plaintiff ’s personnel file without his knowledge. ¶ 32.

In April 2018, the journal Inside Higher Ed published an article about a faculty search committee at

NCSU, which was chaired by one of plaintiff ’s colleagues, Alyssa Rockenbach. The search committee had

included as a finalist for a faculty position a professor

from another university who had been terminated by

that university after the professor allegedly ran a side

business which he staffed with university staff members, neglected his professorial duties, and had an inappropriate relationship with a student. Id. ¶¶ 33-34.

Plaintiff was concerned that his NCSU colleague had

“cut corners” in vetting the candidate “out of a desire

to hire a Black scholar whose work focused on racial

issues”. Id. ¶ 36. After the article was published plaintiff sent an email to the Higher Education faculty

App. 54

linking to the article and stating: “Did you all see this?

. . . This kind of publicity will make sure we rocket to

number 1 in the rankings. Keep up the good work,

Alyssa!” Id. ¶ 37.

Defendant Pasque met with plaintiff about the

email a week later, asking plaintiff about his intent in

sending the email. Id. ¶ 38. Plaintiff later learned that

defendant Gayles had forwarded plaintiff ’s email to

Pasque with a message “NOT COOL!!! I am so mad

about all of this I could scream!! I can’t stay silent

about this. It’s maddening!” Id. ¶ 40. Plaintiff also

learned that Rockenbach had forwarded plaintiff ’s

email to defendants Pasque and Danowitz as well as

the Associate Vice Provost for Equal Opportunity and

Equity. Id. During a follow up meeting with defendant

Pasque on April 24, 2018, plaintiff alleges that Pasque

inquired as to whether plaintiff had to remain a member of the Higher Education Program Area or whether

he could be a member of the department without a program area. Id. ¶ 41. Plaintiff received a good annual

evaluation that year, with a notation that plaintiff, and

all faculty, were expected to be collegial. Id. ¶ 46.

Plaintiff alleges that on September 3, 2018, he

once again exercised his right to free speech when he

published a post on his personal blog entitled “ASHE

Has Become a Woke Joke.” Id. ¶ 47. Plaintiff ’s post

commented on research a colleague of his had gathered

about topics for discussion at the upcoming ASHE (Association for the Study of Higher Education) conference; this research demonstrated that the focus of the

conference had shifted from general, post-secondary

App. 55

research to social justice. Id. Plaintiff ’s blog post generated controversy on social media. Id. ¶§ 48-52.

At the start of the 2018-2019 academic year, defendant Danowitz met with Higher Education Program Area faculty, including plaintiff, alerting them to

the possibility of a spousal hire.1 Id. ¶ 53. The spousal

candidate was a well-known post-secondary researcher

interested in an NCSU position. Id. Instead of discussing the candidate as planned at a Higher Education

Program Area faculty meeting, defendant Pasque invited plaintiff to a Google Hangout meeting on October

15, 2018, to which defendant Gayles and two other people were also invited. Id. ¶ 55. Pasque proposed that

plaintiff leave the Higher Education Program Area

and join a new Higher Education Policy Program Area

with plaintiff, the potential spousal hire, and Pasque

as the members. Id. ¶ 56. Plaintiff alleges that this was

the second time in six months that Pasque had suggested plaintiff leave the Higher Education Program

Area and that it was in retaliation for plaintiff ’s unpopular speech. Id. ¶¶ 56-57. Plaintiff alleges that the

Google meeting focused on plaintiff ’s refusal to leave

the Higher Education Program Area and the impact on

the ability to bring in the spousal hire. Id. ¶ 58. Plaintiff stated “Give me a f****** break, folks. I was the

one who said [the potential spousal hire] should come.

And now I’m the bad guy because I don’t want to leave

1

A spousal hire is described by plaintiff as an informal

agreement among universities in the area to help place one member of an academic couple when there is an interest in hiring the

other member. Id. ¶ 53.

App. 56

Higher Ed for a non-existent program area.” Id. ¶ 60.

Plaintiff received a letter from Pasque on October 18,

2018, chastising him for his use of profanity and expression of frustration at the meeting. Id. ¶ 62.

Plaintiff received another letter from Pasque on

November 7, 2018, expressing concern about plaintiff ’s

collegiality. Id. ¶ 63. The letter highlighted the 2017

climate study which labeled plaintiff as a bully, plaintiff ’s circulation of the Inside Higher Ed article, and

plaintiff ’s use of profanity during the October 2018

meeting. Id. ¶¶ 63. Pasque’s letter indicated that if

plaintiff did not repair the relationship among Higher

Education Program Area faculty or continued to display a lack collegiality he would be removed from the

Higher Education Program Area. Id. ¶ 64.

On November 19, 2018, plaintiff received an email

from Pasque about student reactions to the ASHE conference keynote address, which addressed plaintiff ’s

“woke joke” blog post. Id. ¶ 66-67. Pasque proposed a

community conversation during which plaintiff would

be expected to address graduate students’ concerns to

help students reconcile the “great teacher” they knew

with what they had heard about plaintiff from the

ASHE address. Id. ¶¶ 67-69. Plaintiff later discovered

that only two of approximately sixty students had spoken with Pasque about the ASHE matter and that an

informal discussion regarding the matter had taken

place with Dept. of Educational Leadership faculty after an evening social with students. Id. ¶ 71. Plaintiff

sought to have the issue added to a January 2019

Higher Education Program Area meeting but it was

App. 57

not. Id. ¶ 72. However, in February 2019, plaintiff and

Pasque again met and Pasque repeatedly expressed

her frustration that plaintiff had not addressed the

ASHE matter. Id. ¶ 73-74.

On July 5, 2019, plaintiff received his annual

evaluation letter and was informed that he had been

removed from the Higher Education Program Area because Higher Education faculty had not been able to

make “concerted progress” on resolving issues within

the Program Area. Id. ¶ 78. Plaintiff would also be expected to teach an extra, fifth course. In July 2019,

Pasque left NCSU and was replaced by Defendant Lee.

Id. ¶ 81. Lee informed plaintiff he would not be required to teach an extra course following plaintiff’s

filing of an internal grievance on August 28, 2019, contesting his removal from the Higher Education Program Area and the addition of an extra course to his

workload. Id. ¶ 82-83. The requirement that plaintiff

teach a fifth course was not, however, removed from

plaintiff ’s personnel file. Id. ¶ 83.

Plaintiff alleges that as a consequence of being removed from the Higher Education Program Area, he

was barred from attending the Higher Education Orientation for new Ph.D. students, the Higher Education

welcome cookout, and the Higher Education retreat;

plaintiff also alleges that he was excluded from the Diagnostic Advisement Procedure process for secondyear Ph.D. students, including for his own advisees. Id.

¶¶ 85-92.

App. 58

Plaintiff later expressed concern to defendant Lee

that he was being set up so that when he was up for

post-tenure review in a few years, he would not have

any advisees and could be stripped of tenure and fired

for not fulfilling his job duties. Id. ¶ 101. Plaintiff alleges that in December 2019 he was prohibited from

attending a Ph.D. admissions meeting, which is when

advisees are assigned, and was further barred from

attending a Spring 2020 Ph.D. recruitment weekend.

Id. ¶ 104. Plaintiff ’s internal grievance was denied in

June 2020. Id. ¶ 105.

Finally, in October 2020, some Dept. of Educational Leadership faculty proposed a new Ph.D. Program Area of Study in Higher Education Access,

Equity, and Justice. Id. ¶ 107. Plaintiff was not asked

whether he would be interested in participating in this

new Program Area of Study and all faculty members

with the exception of plaintiff were invited to join. Id.

¶¶ 108-110. Plaintiff and one other faculty member did

not join the new Program Area and remained in the

Higher Education Program Area of Study. Id. ¶ 110.

They were informed in March 2021 that they could

make offers of admission to doctoral candidates but

that those candidates would be encouraged to switch

to the new Program Area of Study once they arrived.

Id. ¶ 114.

DISCUSSION

Defendants have moved to dismiss plaintiff’s

complaint in its entirety for lack of subject matter

App. 59

jurisdiction and for failure to state a claim upon which

relief can be granted pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure.2

Federal Rule of Civil Procedure 12(b)(1) authorizes

dismissal of a claim for lack of subject matter jurisdiction. “Subject-matter jurisdiction cannot be forfeited or

waived and should be considered when fairly in doubt.”

Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citation

omitted). When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co.,

166 F.3d 642, 647-50 (4th Cir. 1999). When a facial

challenge to subject-matter jurisdiction is raised, the

facts alleged by the plaintiff in the complaint are taken

as true, “and the motion must be denied if the complaint alleges sufficient facts to invoke subject-matter

jurisdiction.” Kerns v. United States, 585 F.3d 187, 192

(4th Cir. 2009). The Court can consider evidence outside the pleadings without converting the motion into

one for summary judgment. See, e.g., Evans, 166 F.3d

at 647.

A Rule 12(b)(6) motion tests the legal sufficiency

of the complaint. Papasan v. Allain, 478 U.S. 265, 283

(1986). When acting on a motion to dismiss under Rule

12(b)(6), “the court should accept as true all wellpleaded allegations and should view the complaint in

a light most favorable to the plaintiff.” Mylan Labs.,

2

The Court, in its discretion, allows plaintiff ’s motion for

leave to file a sur-reply. [DE 24]. The proposed sur-reply filed at

[DE 24-1] is deemed filed.

App. 60

Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A

complaint must allege enough facts to state a claim

for relief that is facially plausible. Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled “allow[ ] the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged,” and mere recitals of the

elements of a cause of action supported by conclusory

statements do not suffice. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). A complaint must be dismissed if

the factual allegations do not nudge the plaintiff ’s

claims “across the line from conceivable to plausible.”

Twombly, 550 U.S. at 570.

A. Board of Trustees and official capacity claims

Plaintiff does not appear to dispute that his

claims for damages against the Board of Trustees

and the individual defendants in their official capacities are barred by sovereign and Eleventh Amendment

immunity. See Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001); Huang v. Bd. of Governors of Univ. of N. Carolina, 902 F.2d 1134, 1138 (4th

Cir. 1990); see also Ballenger v. Owens, 352 F.3d 842,

845 (4th Cir. 2003). In his response to the motion to

dismiss, however, plaintiff argues that he may nonetheless obtain prospective relief against the defendants under Ex Parte Young, 209 U.S. 123 (1908). Under

Ex Parte Young, “federal courts may exercise jurisdiction over claims against state officials by persons at

risk of or suffering from violations by those officials of

federally protected rights, if (1) the violation for which

App. 61

relief is sought is an ongoing one, and (2) the relief

sought is only prospective.” Republic of Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998).

With one exception, the relief plaintiff seeks is not

prospective. In his complaint, plaintiff seeks, in addition to damages and attorney fees, (1) a declaration

that defendants’ actions violated his First Amendment

right to speak on matters of public concern and (2) a

permanent injunction requiring defendants to reinstate plaintiff to the Higher Education Program Area;

allow him to join the Higher Education Opportunity,

Equity, and Justice Program Area of Study; and remove the requirement that he teach a fifth course from

his personnel file. [DE 1].

Where the effect of a declaratory judgment and injunction would be to “undo accomplished state action[,]” the Ex Parte Young exception does not apply.

Paraguay, 134 F.3d at 628. In his sur-reply, plaintiff

clarifies that he seeks “prospective relief against the

continuation of the past violation.” [DE 24-1]. However,

“even though the consequences of any past violation

may persist, invoking those effects does not transform

past state action into an ongoing violation.” Jemsek v.

Rhyne, 662 F. App’x 206, 211 (4th Cir. 2016). Accordingly, plaintiff ’s requests for injunctive relief regarding his permission to join the new Higher Education

Opportunity, Equity, and Justice Program Area of

Study and the removal of the requirement that he

teach a fifth course are not prospective, and Ex Parte

Young does not provide an exception to Eleventh

Amendment immunity.

App. 62

Plaintiff ’s request for ‘reinstatement’, however, to

the Higher Education Program Area may well state a

claim for prospective injunctive relief. “[R]einstatement is a form of prospective relief, [and] the refusal to

provide that relief when it is requested can constitute

an ongoing violation of federal law such that the Ex

parte Young exception applies.” Bland v. Roberts, 730

F.3d 368, 390 (4th Cir. 2013); see also Biggs v. N. Carolina Dep’t of Pub. Safety, 953 F.3d 236, 243 (4th Cir.

2020) (whether in the context of termination or demotion “claims for reinstatement to previous employment

meet the Ex Parte Young exception.”). However, as discussed below, plaintiff has failed to state a First

Amendment retaliation claim.

B. First Amendment retaliation

“The First Amendment protects not only the affirmative right to speak, but also the ‘right to be free

from retaliation by a public official for the exercise of

that right.’ ” Adams v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (citation

omitted). Retaliation in violation of the First Amendment is actionable because it tends to chill the exercise

of constitutional rights. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir.

2005). However, “[w]here there is no impairment of the

plaintiff ’s rights, there is no need for the protection

provided by a cause of action for retaliation. Thus, a

showing of adversity is essential to any retaliation

claim.” Am. C.L. Union of Maryland, Inc. v. Wicomico

Cnty., Md., 999 F.2d 780, 785 (4th Cir. 1993). If a

App. 63

plaintiff has alleged adverse employment action, the

following must be determined in order for a public employee to prove a claim for First Amendment retaliation:

(1) whether the public employee was speaking

as a citizen upon a matter of public concern or

as an employee about a matter of personal interest; (2) whether the employee’s interest in

speaking upon the matter of public concern

outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was

a substantial factor in the employee’s [adverse employment action].

McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998); see

also Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d

646, 654 (4th Cir. 2017). “The causation requirement is

‘rigorous’ in that the protected expression must have

been the ‘but for’ cause of the adverse employment action alleged.” Ridpath v. Bd. of Governors Marshall

Univ., 447 F.3d 292, 318 (4th Cir. 2006)

What constitutes a materially adverse action for

a Title VII retaliation claim is “similar to the standard for demonstrating an adverse action in the First

Amendment retaliation context.” Feminist Majority

Found. v. Hurley, 911 F.3d 674, 697 n.12 (4th Cir. 2018),

Whether an action is adverse is an objective standard,

which will be satisfied if the retaliatory conduct would

“deter a person of ordinary firmness from the exercise

of First Amendment rights.” Constantine, 411 F.3d at

500.

App. 64

Termination, demotion, loss of compensation, and

loss of opportunity for promotion are well-settled materially adverse employment actions. See Ridpath, 447

F.3d at 316; Boone v. Goldwin, 178 F.3d 253, 256-57

(4th Cir. 1999). The denial of opportunity for professional advancement may also constitute materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 69 (2006). The adverse actions about which

plaintiff complains are his removal from the Higher

Education Program Area, being told he would have to

teach a fifth course (without actually being required to

teach a fifth course), and not being invited to join a recently formed Ph.D. Program Area of Study.

Plaintiff remains a tenured professor in the NCSU

College of Education and a member of the Higher Education Ph.D. Program Area of Study. He has not alleged he has suffered any diminution in pay or

responsibility or that he has lost the opportunity for

promotion. At bottom, plaintiff alleges that the decision to remove him from the Higher Education Program Area will, in the future, result in his being unable

to obtain advisees which will leave his future at NCSU

in doubt. Such adverse consequence, however, is speculative. Plaintiff has not alleged that he does not currently have any advisees or that his tenure status is

now at risk. Accordingly, he has failed to plausibly allege that any defendant took materially adverse action

against him in retaliation for any protected speech.

Moreover, plaintiff has failed to plausibly allege

that retaliation for engaging in protected speech was

the proximate cause of any allegedly adverse action by

App. 65

defendants. Plaintiff identifies three instances of speech

for which he was allegedly retaliated against. The last

instance took place eleven months prior to his removal

from the Higher Education Program Area in July 2019,

which is too long to demonstrate that temporal proximity would tend to show that the protected activity

was “the substantial motivating factor in the adverse

action.” Penley, 876 F.3d at 657 (eight to nine months

between speech and adverse action is insufficient to

demonstrate causation based on temporal proximity).

The complaint further fails to otherwise show a

causal connection between the allegedly protected

speech and any adverse action. As argued by defendants, the complaint reveals that plaintiff had been

described as a bully in a department Climate Study

completed in 2017 and that plaintiff made comments

about and to other faculty members which could be

perceived as unprofessional or disrespectful. See [DE 1

¶¶ 24, 37, 60]. Finally, plaintiff ’s complaint alleges

that defendant Pasque had repeatedly expressed concern regarding plaintiff ’s collegiality and his failure to

repair relationships among faculty. Id. ¶¶ 46, 61, 62,

75. Even construing the facts and inferences in the

light most favorable to plaintiff, the complaint fails to

plausibly allege that any protected speech identified by

plaintiff was the substantial motivating factor in the

decision to remove him from the Higher Education

Program Area or any other allegedly adverse action.

Because plaintiff has failed to plausibly allege

that he has suffered adverse action or that any allegedly protected speech was the ‘but for’ cause of any

App. 66

alleged adverse employment action, he cannot state a

claim for retaliation in violation of the First Amendment.3

The defendants named in their individual capacity

further contend they are entitled to qualified immunity. Qualified immunity shields government officials

from liability for statutory or constitutional violations

so long as they can reasonably believe that their conduct does not violate clearly established law. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). A

court employs a two-step procedure for determining

whether qualified immunity applies that “asks first

whether a constitutional violation occurred and second

whether the right violated was clearly established.”

Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). A

court may exercise its discretion to decide which step

of the analysis to decide first based on the circumstances presented. Pearson v. Callahan, 555 U.S. 223,

236 (2009).

As discussed above, the Court first holds that

plaintiff has failed to plausibly allege a First Amendment retaliation claim, and thus has failed to allege

that a constitutional violation occurred. However, even

assuming, without deciding, that plaintiff has sufficiently alleged such a claim, the individual defendants

would be entitled to qualified immunity.

3

The Court thus declines to address whether plaintiff was

speaking as a citizen upon a matter of public concern and whether

plaintiff ’s interest in speaking outweighed the NCSU’s interest.

App. 67

A clearly established right requires existing precedent which places “the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (noting a case on point is not required).

Moreover, the right must not be defined at a high level

of generality and must instead focus on the particular

conduct at issue. Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(citing al-Kidd, 563 U.S. at 742).

Although “the right to of a public employee to

speak as a citizen on matters of public concern – is

clearly established and something a reasonable person in the Defendants’ position should have known

was protected[,]” Adams, 640 F.3d at 566, “only infrequently will it be ‘clearly established’ that a public

employee’s speech on a matter of public concern is constitutionally protected, because the relevant inquiry

requires a ‘particularized balancing’ that is subtle, yet

difficult to apply, and not yet well defined.” Pike v.

Osborne, 301 F.3d 182, 185 (4th Cir. 2002) (citing

DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995); and

McVey, 157 F.3d at 277).

Adams, the sole case on which plaintiff relies to

oppose qualified immunity, involved an assistant professor’s denial of promotion to full professor because of

his views which were published in books and stated on

television and radio programs. Here, plaintiff ’s speech

for which he alleges he was retaliated against included

his expression of concern about the inclusion of a diversity question on student course evaluations during a faculty meeting, his email to faculty regarding

the school’s rankings, and a personal blog post titled

App. 68

“ASHE Has Become a Woke Joke”. Plaintiff has identified no case, nor is the Court aware of any, where on

similar facts a court concluded that the constitutional

or statutory right was clearly established. Accordingly,

the Court concludes that the right to be free from First

Amendment retaliation based upon these facts was not

clearly established, and the individual defendants are

alternatively entitled to qualified immunity for claims

against them in their individual capacity.

In sum, plaintiff has failed to sufficiently allege an

adverse action which would support his First Amendment retaliation claim, in large part because any harm

he allegedly will suffer is speculative. Plaintiff has further failed to sufficiently allege that the speech identified in his complaint was the “but for” cause of any

alleged retaliation, and the individual defendants are

otherwise entitled to qualified immunity.

CONCLUSION

Accordingly, for the foregoing reasons, defendants’

motion to dismiss [DE 15] is GRANTED and plaintiff ’s

complaint is DISMISSED in its entirety. Plaintiff’s motion for leave to file a sur-reply [DE 24] is GRANTED.

The clerk is directed to close the case.

SO ORDERED, this 15 day of June 2022.

/s/ Terrence Boyle

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE