Lowery v. Mills

On February 8, 2023, Richard Lowery, a finance professor at the University of Texas at Austin, filed a federal lawsuit alleging that administrators in the McCombs School of Business violated his First Amendment rights. The complaint named the business school dean, a senior associate dean, and the finance department chair, and later added the university’s president in their official capacities. Lowery alleged that after he publicly criticized university leadership and policies, including diversity, equity, and inclusion initiatives and governance issues, administrators warned that his statements were causing problems for the school and suggested that continued criticism could affect his salary, research opportunities, and affiliation with the Salem Center for Public Policy. He sought declaratory and injunctive relief under 42 U.S.C. § 1983, asserting that the officials’ conduct chilled his speech and led him to limit his public commentary and social media activity.

Shortly after filing the suit, Lowery also moved for a preliminary injunction seeking to prevent university officials from continuing the alleged efforts to chill his speech. The district court denied the request while the case proceeded. In March 2024, Lowery filed an amended complaint that added the university’s president as a defendant and included an additional claim alleging that administrators maintained an unwritten speech code discouraging uncivil speech.

University officials denied wrongdoing and argued that Lowery had not suffered a constitutionally cognizable injury. They maintained that he remained employed as a tenured professor, received salary increases and renewals of his Salem Center affiliation, and was never formally disciplined. According to the university, internal criticism or warnings about professional conduct did not amount to unconstitutional retaliation.

On October 2, 2024, the U.S. District Court for the Western District of Texas entered judgment dismissing Lowery’s claims. On October 31, 2025, the U.S. Court of Appeals for the Fifth Circuit affirmed. The court concluded that Lowery had not plausibly alleged a materially adverse employment action and held that the alleged threats and internal discussions, without any implemented punishment, were insufficient to sustain a First Amendment retaliation claim.

On February 3, 2026, Lowery filed a petition for a writ of certiorari with the Supreme Court of the United States asking the Court to decide whether government employer threats that would deter a reasonable employee from speaking can constitute actionable First Amendment retaliation even when the threatened punishment is never carried out, arguing that the Fifth Circuit’s ruling allows public employers to chill employee speech through credible threats without triggering constitutional liability.