Demers v. Austin

Summary

David Demers, a professor at Washington State University (“WSU”), filed a First Amendment retaliation claim against university administrators alleging that they had been displeased with portions of a book Demers was in the process of writing as well as the contents of a published pamphlet. The pamphlet specifically argued several issues regarding the structure of the faculties in two divisions of the Edward R. Murrow College of Communication, a newly integrated part of WSU. Demers distributed the pamphlet while he was serving on the Murrow School’s “Structure Committee,” which was actively debating some of the issues addressed by the pamphlet. At the same time, Demers also distributed parts of a book he was writing that were, admittedly, critical of events that had taken place at WSU. In his Complaint, Demers alleged that in response to the distribution of the pamphlet and book excerpts, university administrators took multiple retaliatory acts against him. Namely, that university administrators allegedly used incorrect information to lower Demers’s performance review scores for 2006, 2007, and 2008, spied on his classes, prevented him from serving on certain committees, prevented him from teaching basic Communications courses, instigated two internal audits, sent him an official disciplinary warning, and excluded him from heading the journalism sequence at the Murrow School at WSU. Demers filed suit in the Eastern District of Washington, which held under Garcetti v. Ceballos, 547 U.S. 410 (2006) that the pamphlet and book excerpts were written and distributed in the performance of Demers’s official duties as a faculty member of WSU, and were therefore not protected under the First Amendment. The district court held, alternatively, that the pamphlet did not address a matter of public concern—and therefore was not protected by the First Amendment. On appeal, the Ninth Circuit held that Demers’s writings were related to “scholarship or teaching.” Therefore, whether or not the writings were protected by the First Amendment was governed by the standards in Pickering v. Board of Education, 391 U.S. 563 (1968) rather than Garcetti. Using the Pickering standard, the Ninth Circuit held that the writings addressed a matter of public concern but remanded for further fact-finding proceedings. The court also found that the university administrators were immune from damages in this suit under the doctrine of qualified immunity. After this decision, Demers agreed to a settlement of $120,000 despite spending $350,000 in legal fees and filing for bankruptcy during the pendency of this litigation.