Protected Speech and Job Promotion

640 F.3d 550, (4th Cir. 2012)

By Lawrence F. Rossow

University of Houston,  Victoria, TX

and

Laural Logan-Fain

Our Lady of the Lake University, San Antonio, TX

In Adams v. The Trustees of the University of North Carolina-Wilmington, 640 F.3d 550, (4th Cir. 2011), the United States Circuit Court of Appeals for the Fourth Circuit decided that an associate professor’s otherwise protected speech could not be “transformed” into unprotected speech once it was considered as part of an application for promotion.However, the associate professor could not show that the consideration of religiously based speech resulted in discrimination.

Facts

Michael S. Adams, an associate professor of criminology at the University of North Carolina-Wilmington, sued the university for denying him a promotion to full professor, claiming that he was discriminated against for his views on religion and his conservative speech.In 1993, the university hired Adams as an assistant professor, and over the next five years, Adams received strong teacher evaluations from his students and peers, received faculty awards, published several articles, participated in university service activities, and was promoted to associate professor in 1998.

In 2000, Adams became a Christian and grew increasingly vocal about religious issues, writing nationally syndicated opinion columns, appearing on radio and television as a commentator, and publishing a book based on his experiences as a conservative college professor. During this time, Adams continued to receive strong teaching reviews, but he was criticized by some university employees for his public and conservative Christian views. In 2004, Adams applied for a promotion to become a full professor.

The criteria for such a promotion included the evaluation of four areas: 1) teaching, 2) research, 3) service, and 4) scholarship. Adams’ application included general information that addressed each of the four criteria (such as courses taught, awards received, etc.). As part of his research and scholarship, he included a list of peer-reviewed journals that he had published. He also included citations to non-refereed external writings and appearances he had made after he converted to Christianity in 2000, including his book, Welcome to the Ivory Tower of Babel: Confessions of a Conservative College Professor, and another book he had co-authored that was under consideration for publication entitled Indoctri-Nation: How Universities Are Destroying America.

The faculty that met to review Adams’ application had difficulty appraising the external writings, as they were not the traditional peer-reviewed, academic articles related to his discipline. In a 7-2 vote the faculty recommended that Adams not be promoted, ultimately stating that although his teaching was strong, his scholarly research was limited and inadequate. The district court granted summary judgment for the university. On appeal, the Fourth Circuit affirmed in part and reversed in part. It noted that courts are hesitant to interfere with local educational institutions, especially regarding decisions that rely heavily on expert evaluations and opinions. Instead, the court focused on whether the promotion was denied based on discrimination.

The court determined that Adams had failed to show that religion was a “motivating factor” in the decision and instead noted that the state university defendants had provided legitimate and nondiscriminatory reasons—including the limited number of peer-reviewed publications—for not promoting Adams. DISCUSSION The Garcetti Standard In the Adams decision, the Fourth Circuit made an important contribution to jurisprudence in the area of protected speech for government employees.Since Garcetti v. Ceballos, 547 U.S. 410 (2006), the question of whether a public employee’s speech was protected under the First Amendment turned on whether that speech was made in connection with the employee’s job duties.The public employee in Garcetti was a deputy district attorney named Ceballos. He sent a disposition memorandum to his supervisor recommending the dismissal of an active case on which he was working.

The district attorney’s office proceeded with the case. In the aftermath of the trial, Ceballos claimed that he was subjected to a series of retaliatory employment actions.He argued that the adverse actions were directly related to his memorandum, which claimed to be protected speech. In ruling for the employer, the court held that the Connick standard (speech dealing with matters of public concern) only applies to government employees speaking as private citizens.When Ceballos wrote his memorandum, his speech was not protected under the First Amendment because Ceballos was speaking “as part of his duties” as a public employee.

The Garcetti standard was not applied to higher education employment speech until two years later in Renken v. Gregory,541 F.3d 769 (7th Cir. 2008). Protected under Connick but unprotected under Garcetti? In Renken, a University of Wisconsin-Milwaukee engineering professor sent a number of complaining communications to the dean of the academic college. The communications were both in letter and email modes. Renken complained that the administration was not handling project grant activities correctly. The exchanges lead to a university grievance being filed against the dean by the professor.

The grievance was followed by First Amendment litigation. Renken argued that the university had retaliated against him for complaining.The district court granted summary judgment in favor of the university. On appeal, Renken opined that Garcetti did not control in his situation. He argued that his expressions were protected under the First Amendment because his grant activities were not part of his official duties as a professor.Renken said that the tasks he conducted in relation to the grant were implemented at his discretion “while in the course of his job and not as a requirement of his job.” He went on to assert that unless an employee is performing "core job functions," typically teaching, research and service, the employee was not acting in the capacity of an official government employee. Therefore, the professor argued, his complaints about grant activity were made as a private citizen and he was protected by the Connick standard not

Garcetti. In rejecting this argument, the Seventh Circuit said that Renken was applying Garcetti too narrowly.It noted that Garcetti asked only whether an employee’s expressions were made pursuant to official responsibilities.University grant complaints were made as an employee and not as a private citizen. Therefore, First Amendment protection was not available to Renken. Adam’s Speech is not Garcetti Speech In the featured case, Adams claimed that the university did not promote him because of his vocal beliefs. He stated that his Christian conservative views were widely known by faculty and that faculty members had made comments about his publications.

Furthermore, he maintained, he was the only professor with his credentials to be denied such a promotion in 25 years. Adams went on to argue that he was more qualified than individuals who had been promoted in the past. He also claimed that he was the only conservative Christian in the department. While rejecting the argument that Adams was discriminated on the basis of his religion,the Fourth Circuit did support the possibility that Adams' speeches and columns on public concern were protected by the First Amendment as speech of a private citizen.

The lower court applied the rationale from the Supreme Court decision in Garcetti,which held that when public employees speak in their official capacities, they do not receive First Amendment protection. However, the Fourth Circuit held that Garcetti was incorrectly applied in this case, as Adams' speech was a matter of public concern and was not communicated in his capacity as a public employee at the time it was given. The speech in question was presented as scholarship for his application for promotion.Contrary to the university’s defense, the public concern speech could not be "transformed" into private speech once it appeared in the application.In other words, it could not be considered protected speech when given and then change to unprotected speech after it was submitted in Adams' application. Protected speech cannot lose its First Amendment protected status based on a later reading of the speech. Therefore, the correct standard to be applied in the Adam’s case is Connick v. Myers, 461 U.S. 138 (1983), not Garcetti.

The case was remanded on the issue of protected speech. A simple rule coming from this line of cases might be as follows:Public higher education employees are not protected under the speech clause for expressions in connection with their jobs. Jobs are interpreted broadly and go beyond core duties. Expressions as a private citizen that could be protected under Connick do not get transformed into unprotected Garcetti speech just because that expression becomes part of an employment decision made by the university.