A Nevada Math Professor Who Was Disciplined for Criticizing Curriculum Changes Will Get His Day in Court
The 9th Circuit revived a First Amendment lawsuit by Lars Jensen, who says his community college punished him for complaining about dumbed-down courses.
In 2019, the Nevada System of Higher Education decided that students who needed remedial math instruction could receive it at the same time they were taking college-level math courses instead of completing it as a prerequisite. In response to that new "co-requisite" policy, the math department at Truckee Meadows Community College (TMMC) decided to make its courses less rigorous. Those changes did not sit well with math professor Lars Jensen, who criticized them in two emails to TMCC faculty members and in a handout he distributed at a January 2020 "Math Summit" where "the community" was invited to discuss the curriculum revision.
Because of that criticism, Jensen complained in a federal lawsuit, he received a letter of reprimand and two "unsatisfactory" performance reviews, which triggered a termination hearing. Those disciplinary actions, he argued, violated his First Amendment rights by punishing him for constitutionally protected speech. Although a federal judge dismissed Jensen's lawsuit with prejudice in September 2023, the U.S. Court of Appeals for the 9th Circuit revived his claims on Monday, ruling that the alleged conduct of TMMC administrators violated "clearly established" law, meaning they were not shielded by qualified immunity.
The 9th Circuit panel's unanimous ruling in Jensen v. Brown "is a major victory for the free speech rights of academics," Daniel Ortner, an attorney at the Foundation for Individual Rights and Expression (FIRE) who argued Jensen's case before the appeals court last November, said in a press release. "This decision will protect professors from investigation or threats of termination for their speech, and promote accountability for administrators who violate the First Amendment."
In a December 2019 email to other math department faculty members, Jensen expressed concerns about the curriculum changes. The following month, Julie Ellsworth, TMCC's dean of sciences, convened a meeting aimed at discussing the "co-requisite" policy "with the community." But when Jensen tried to lay out his critique during a question-and-answer session, she cut him off.
Jensen responded by returning to his office, where he prepared a one-page handout arguing that the decision to "lower the academic level of Math 120 so students will be able to complete the course at current rates" would undermine the value of the college's certificates and degrees. He noted that local businesses, which subsidize the school through their taxes, expect that graduates they hire will be qualified for jobs that require math proficiency.
When Jensen returned to the meeting and began handing out his flyer, Ellsworth collected the copies and told him to cut it out. After Jensen "reminded Ellsworth
that it was break time and that he was not being disruptive or disturbing anyone," she reiterated her command, which he disregarded. She warned him that he had "made an error by defying her."
A week after that encounter, Ellsworth delivered on her threat by notifying Jensen that she planned to write him a letter of reprimand for his "insubordination," which was ultimately placed in his personnel file. Undaunted, Jensen reiterated his criticism of the "co-requisite" policy in an email to the entire TMMC faculty.
The repercussions for Jensen's outspokenness continued. During Jensen's May 2020 performance review, the math department's chair recommended a rating of "excellent." Ellsworth instead rated Jensen's performance as "unsatisfactory," again citing his "insubordination." The following year, the department chair still thought Jensen's performance had been "excellent." But Anne Flesher, TMMC's dean of math and physical sciences, deemed it "unsatisfactory." She "identified minor issues with Jensen's performance, based on criteria that Jensen asserts were not equally applied to other faculty." Those two consecutive "unsatisfactory" ratings resulted in a disciplinary investigation by another administrator, Natalie Brown, and a termination hearing, although Jensen ultimately kept his job.
Jensen sued Ellsworth, Flesher, and Brown in their personal and official capacities, arguing that they had retaliated against him for speech protected by the First Amendment. Assessing the viability of those claims, the 9th Circuit applied the criteria established by a line of cases beginning with the Supreme Court's 1968 decision in Pickering v. Board of Education, which involved a public school teacher who was fired for publicly criticizing the school board's allocation of funds.
The 9th Circuit concluded that Jensen's criticism of dumbed-down math standards addressed "a matter of public concern." And even if he was speaking as a "public employee" rather than a "private citizen," it said, his speech was "related to scholarship or teaching," meaning it was protected under the 9th Circuit's 2014 ruling in Demers v. Austin. The appeals court also thought Jensen had plausibly alleged that his protected speech was a "motivating factor" in the disciplinary actions against him.
Those considerations are not necessarily decisive, the 9th Circuit noted, because "a public employee's right to speak is not absolute and may be outweighed by the state's interest 'as an employer, in promoting the efficiency of the public services it performs
through its employees.'" But in this case, the appeals court said, the defendants had failed to demonstrate any such countervailing interest. In particular, they could not point to any significant disruption of the college's operation caused by Jensen's speech.
By itself, the appeals court ruled, Ellsworth's complaint about "insubordination" was not enough to override Jensen's First Amendment interests, especially since it hinged on her disapproval of what he was saying. "The state's interest in punishing a disobedient employee for speaking in violation of their supervisor's orders cannot automatically trump the employee's interest in speaking," the 9th Circuit said. "In assessing the state interest, there is good reason for focusing on the disruptive impact of the employee's speech, rather than simply disobedience to an order to stop speaking. If we were instead to allow an employer to prevail solely on the basis that the employee disobeyed the employer's order not to speak, employers would have carte blanche to 'stifl[e] legitimate speech or penalize[e] public employees for expressing unpopular views.'"
Contrary to the district court's analysis, the 9th Circuit concluded that the case law on all of these points was clear enough at the time of Jensen's conflict with TMMC administrators that they should have recognized the distinction between legitimate discipline and unconstitutional retaliation. That does not necessarily mean Jensen will win the case, but it does mean he will have a chance to try.
"The college's actions tarnished my reputation and chilled my speech," Jensen said in the FIRE press release. "The Ninth Circuit's decision vindicates my First Amendment rights and allows me to have my day in court."
