The plaintiff was a tenured associate professor at WSU. ?He brought a First Amendment retaliation claim? for distributing a pamphlet? and chapters? from an in progress book. Demers had written the pamphlet while he was on a school committee and related to separating the School of Communications from the College of Liberal Arts. He sent the pamphlet to the Administration but signed his name as publisher of a book company that he owned asking for donations.?? He had also sent the pamphlet to the broadcast and print media. He also sent in support of his application for a sabbatical chapters of a book critical of the Administration.? ?The alleged retaliation consisted of negative performance reviews, subjecting him to internal audits, and entering a notice of discipline. The district court dismissed under Garcetti on the grounds that that pamphlet and the chapters were distributed pursuant to his job duties.?? The district ?court ?also ?held ?the? pamphlet ?did ?not address a matter of public concern.
The Ninth Circuit? reversed and held that Pickering alone governed First Amendment claims by publicly employed teachers. ?The panel agreed with the district court that Demers?s actions in submitting the pamphlet to the Administration and the media were pursuant to his official job duties as a WSU professor despite the fact that he signed it ?as ?a? private ?publisher. ?The ?court ?held ?that Garcetti did not apply to academic speech. The court refused to consider whether the book chapters were protected speech because the plaintiff did not include the chapters in the record. The court held the pamphlet did address a matter of broad public concern to the WSU community. The panel remanded to the district court whether the Administration had a sufficient interest in controlling the circulation of the pamphlet and whether the pamphlet had caused the adverse actions. The panel upheld the district court?s grant of qualified immunity because the Ninth Circuit had not previously considered Garcetti?s application to academic speech.
Demers ?v. ?Austin, ?– ?F.3d ?— ?(9th? ?Cir. 9/4/13) (Fletcher, Fisher, Quist (W.D. Mich.))