David K. Demers, Plaintiff-Appellant,
Erica Austin; Erich Lear; Warwick M. Bayly; Frances McSweeney, Defendants-Appellees.
Argued and Submitted November 7, 2012 —Seattle, Washington
Appeal from the United States District Court for the Eastern District of Washington D.C. No. 2:09-cv-00334-RHW Robert H. Whaley, Senior District Judge, Presiding
Judith A. Endejan (argued), Graham & Dunn, PC, Seattle, Washington, for Plaintiff-Appellant.
Kathryn M. Battuello (argued) and Catherine Hendricks, Office of the Washington Attorney General, Seattle, Washington, for Defendants-Appellees.
John Joshua Wheeler, Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Virginia, for Amici Curiae American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression.
Before: William A. Fletcher and Raymond C. Fisher, Circuit Judges, and Gordon J. Quist, Senior District Judge. [*]
The panel affirmed in part and reversed in part the district court's summary judgment and remanded in an action brought pursuant to 42 U.S.C. § 1983 by a tenured associate university professor who alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled "The Ivory Tower of Babel."
The panel held that Garcetti v. Ceballos, 547 U.S. 410 (2006), does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968). The panel affirmed the district court's determination that plaintiff prepared and circulated the pamphlet pursuant to official duties, but reversed the district court's determination that the pamphlet did not address matters of public concern under Pickering. The panel concluded, further, that there was insufficient evidence in the record to show that the in-progress book triggered retaliation against plaintiff. Finally, the panel concluded that defendants were entitled to qualified immunity from damages, given the uncertain state of the law in the wake of Garcetti.
W. FLETCHER, Circuit Judge
David Demers is a tenured associate professor at Washington State University. He brought suit alleging that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book. The district court granted summary judgment for the defendants, finding that the pamphlet and draft were distributed pursuant to Demers's employment duties under Garcetti v. Ceballos, 547 U.S. 410 (2006). Alternatively, the court held that the pamphlet was not protected under the First Amendment because its content did not address a matter of public concern.
We hold that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968). In Demers's case, we conclude that the short pamphlet addressed a matter of public concern under Pickering and remand for further proceedings. We conclude, further, that there is insufficient evidence in the record to show that the in-progress book triggered retaliation against Demers. Finally, we conclude that defendants are entitled to qualified immunity, given the uncertain state of the law in the wake of Garcetti.
David Demers is a member of the faculty in the Edward R. Murrow College of Communication ("Murrow School" or "Murrow College") at Washington State University ("WSU"). He joined the faculty in 1996. He was granted tenure as an associate professor in 1999. Demers also owns and operates Marquette Books, an independent publishing company.
Demers brought suit alleging First Amendment violations by WSU Interim Director of the Murrow School Erica Austin, Vice Provost for Faculty Affairs Frances McSweeney, Dean of the College of Liberal Arts Erich Lear, and Interim WSU Provost and Executive Vice President Warwick Bayly. Demers contends that defendants retaliated against him, in violation of his First Amendment rights, for distributing a pamphlet called "The 7-Step Plan" ("The Plan") and for distributing a draft introduction and draft chapters of an in-progress book titled "The Ivory Tower of Babel" ("Ivory Tower"). Demers contends that defendants retaliated by giving him negative annual performance reviews that contained falsehoods, by conducting two internal audits, and by entering a formal notice of discipline. Demers contends in his brief that over a three-year period he "went from being a popular teacher and scholar with high evaluations to a target for termination" due to the actions of defendants.
The Plan is a two-page pamphlet Demers wrote in late 2006 and distributed in early 2007. Demers distributed the Plan while he was serving on the Murrow School's "Structure Committee, " which was actively debating some of the issues addressed by the Plan. At that time, the Murrow School was part of the College of Liberal Arts at WSU, but the faculty had voted unanimously in favor of becoming a free-standing College. (It became a College in July 2008.) The Murrow School had two faculties. One faculty was Mass
Communications, which had a professional and practical orientation. The other was Communications Studies, which had a more traditional academic orientation. Faculty members held appointments in either Mass. Communications or Communications Studies. The Structure Committee was considering whether to recommend, as part of the restructuring of the Murrow School, that the two faculties of the School be separated. There was serious disagreement at the Murrow School on that question.
Demers is a member of the Mass. Communications faculty. Demers's Plan proposed separating the two faculties. It proposed strengthening the Mass. Communications faculty by appointing a director with a strong professional background and giving more prominent roles to faculty members with professional backgrounds. For four years, early in his career, Demers had himself been a professional reporter.
On January 16, 2007, Demers sent the Plan to the Provost of WSU. In his cover letter, he stated that the purpose of the Plan is to show how WSU "can turn the Edward R. Murrow School of Communication into a revenue-generating center for the university and, at the same time, improve the quality of the program itself." Demers's letter also stated, "To initiate a fund-raising campaign to achieve this goal, my company and I would like to donate $50, 000 in unrestricted funds to the university." Demers signed the letter "Dr. David Demers, Publisher/ Marquette Books LLC." A footnote appended to the signature line specified, "Demers also is associate professor of communications at Washington State University. Marquette Books LLC is a book/journal publishing company that he operates in his spare time. It has no ties with nor does it use any of the resources at Washington State University." The cover of the Plan states that it was "prepared by Marquette Books LLC." The Provost did not respond to Demers's letter and Plan. On March 29, 2007, Demers sent the Plan to the President of WSU. The cover letter was identical to the letter he had sent to the Provost, except that he increased the offered donation to $100, 000.
In his declaration, Demers states that he sent the Plan "to members of the print and broadcast media in Washington state, to administrators at WSU, to some of my colleagues, to the Murrow Professional Advisory Board, and others." Demers also posted the Plan on the Marquette Books website. In his deposition, Demers stated that he could not remember the names of the individuals to whom he had sent the Plan. Demers did not submit the Plan to the Structure Committee or to Interim Director Austin. In her deposition, Austin stated that alumni and members of the professional community contacted faculty members to ask about the Plan.
During the period relevant to his suit, Demers had completed drafts of parts of what would eventually become "Ivory Tower." The book was not published until after the actions about which Demers complains took place. In his self-prepared 2006 "Faculty Annual Report, " submitted in early 2007, Demers described the in-progress book as "partly autobiographical and partly empirical. It will involve national probability surveys of social scientists, governmental officials and journalists." Demers attached a copy of the draft introduction and the first chapter to his November 2007 application for a sabbatical. In his application, he described the planned book as follows:
[T]he book examines the role and function of social science research in society. . . . Today most social scientists believe very strongly that the research they conduct is important for solving social problems, or at least has some impact on public policy. However, empirical research in political science and public policy shows just the opposite. Social scientific research generally has little impact on public policy decisions and almost never ...