Wetherbe v. Texas Tech University System

Summary

James C. Wetherbe—a distinguished professor at Texas Tech University’s Rawls College of Business—often published high-profile op-eds speaking critically of the practice of tenure at universities. Allegedly, these opinions caused Texas Tech University (“TTU”) to undertake several punitive measures against Mr. Wetherbe such as removing him from his position as an Associate Dean. Although Mr. Wetherbe filed an ultimately unsuccessful First Amendment lawsuit in 2012 against several university administrators, he continued to maintain that the school had taken several adverse employment decisions against him in retaliation for his public views on tenure. In 2015, Mr. Wetherbe filed another lawsuit against TTU, and several of its administrators, in the Northern District of Texas. This suit claimed that he had experienced a number of new adverse employment events that were motivated by his first lawsuit and by his anti-tenure publications, but the district court dismissed for failure to state a claim. Specifically, the court found that Mr. Wetherbe’s speech was not protected by the First Amendment because it did not involve a matter of public concern. The court pointed out that matters of public concern usually include “areas that concern the public at large, such as racial discrimination, political speech, and the like.” In the court’s view, tenure did not qualify since “[t]enure is a benefit that owes its existence to, and is generally found only in the context of, government employment.” Mr. Wetherbe promptly appealed this decision to the Fifth Circuit which reversed the district court’s dismissal with respect to specific defendants. The Fifth Circuit first noted that Mr. Wetherbe’s speech consisted of multiple articles that mainly addressed what Mr. Wetherbe perceived to be the systemic problems with tenure, rather than his personal struggles against the tenure system. The court held that “[b]ecause these articles focus on the systemic impact of tenure, not Wetherbe’s own job conditions, the content of the speech indicates that the speech involves a matter of public concern.” Ultimately, the court held that Mr. Wetherbe had plausibly alleged that his speech was on a matter of public concern, and therefore remanded the case to the district court for further proceedings. Since the Fifth Circuit’s ruling, Mr. Wetherbe has amended his complaint twice and the lawsuit is ongoing.