Demers v. Austin

Garcetti does not apply to teaching and academic writing. Instead, the Pickering test should be applied which requires the employee to show that his or her speech addressed matters of public concern and that interest in voicing those concerns outweigh the State’s interest in promoting efficient public services.

David Demers was a tenured associate professor at Washington State University. He brought suit alleging that after distributing a short pamphlet and drafts of an in-progress book, the university retaliated against him in violation of the First Amendment. The district court granted summary judgment for the defendants by applying Garcetti v. Ceballos, and found that the drafts were distributed pursuant to Demers’s employment duties and therefore not protected under the First Amendment. Demers contended that the retaliation consisted of negative annual performance reviews with false information, conducting two internal affair audits, serving formal notice of discipline, preventing him from serving on committees. Demers argued that writing and distributing of the Plan was not done as an official duty, and even if it was, Garcetti does not extend to activity by a public teacher. The Ninth Circuit disagreed with the first argument, but agreed that Garcetti does not apply to this case. Garcetti held that “when 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.” If this holding applied to academic writing, then it would directly conflict with First Amendment values which include academic freedom. Instead, teaching and academic writing is governed by Pickering v. Board of Education, requiring the employee to show that his or her speech addressed matters of public concern and that interest in voicing those concerns outweighed the State’s interest in promoting efficient public services. The panel concluded that the pamphlet did address a matter of public concern under Pickering, but that there was insufficient evidence to prove retaliation. Additionally, defendants were entitled to qualified immunity because of the uncertainty of Garcetti. AFFIRMED in part, REVERSED in part, and REMANDED.