The 9th Circuit Upholds a University of Washington Professor's Right to Mock 'Land Acknowledgments'
The appeals court ruled that administrators violated Stuart Reges' First Amendment rights when they investigated and threatened to punish him for constitutionally protected speech.
A decade ago, the University of Washington (U.W.) adopted an official statement that "acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations." Four years later, the Seattle university's Paul G. Allen School of Computer Science and Engineering began recommending that instructors include that statement in their syllabi.
Stuart Reges, a critic of such "land acknowledgments" who had taught an introductory computer science course, CSE 143, in that school since 2004, responded with a syllabus statement mocking the concept: "I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington." That parody resulted in an internal investigation, a reprimand, and threats of disciplinary action. Those responses violated the professor's First Amendment rights, a divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled last Friday in Reges v. Cauce.
"A public university investigated, reprimanded, and threatened to discipline a professor for contentious statements he made in a class syllabus," Judge Daniel A. Bress, a Donald Trump appointee, writes in an opinion joined by Judge Milan D. Smith Jr., who was nominated by George W. Bush. "The statements, which mocked the university's model syllabus statement on an issue of public concern, caused offense in the university community. Yet debate and disagreement are hallmarks of higher education. Student discomfort with a professor's views can prompt discussion and disapproval. But this discomfort is not grounds for the university retaliating against the professor."
The decision is "a resounding victory for Professor Stuart Reges and the First Amendment rights of public university faculty," says Gabe Walters, an attorney with the Foundation for Individual Rights and Expression (FIRE), which represented Reges. "The Ninth Circuit agreed with what FIRE has said from the beginning: Universities can't force professors to parrot an institution's preferred political views under pain of punishment."
Reges, who sued university administrators in July 2022, argued that they had violated the First Amendment by targeting him based on his viewpoint and by retaliating against him for constitutionally protected speech. He also argued that the university's Executive Order 31, which prohibits faculty conduct that "is deemed unacceptable or inappropriate, regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation," was unconstitutionally vague and overbroad.
Last year, U.S. District Judge John H. Chun ruled in favor of the defendants, concluding that their treatment of Reges was justified by concerns about the disruptive impact of his speech. That judgment relied on the U.S. Supreme Court's 1968 ruling in Pickering v. Board of Education, which held that the First Amendment requires "a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Chun also narrowly construed the rule that Reges challenged, saying it was constitutional if understood as applying only to "conduct that resembles or is akin to discriminatory, harassing, or retaliatory conduct."
Writing in dissent, 9th Circuit Judge Sidney R. Thomas, a Bill Clinton appointee, agreed with Chun that "the disruption Reges's speech caused to Native students' learning outweighed his own First Amendment interests." Thomas also thought Chun's "limiting construction" of Executive Order 31 was permissible. But Bress and Smith concluded that Chun had attached too much weight to the university's claims of disruption and not enough to Reges' right to express his views on an issue of public concern. The majority also ruled that Chun's reading of Executive Order 31 contradicted its "plain text" and instructed him to address its constitutionality as written.
The context of Reges' syllabus statement was the public debate about the value and propriety of land acknowledgments. "Reges believes that land acknowledgments are part of 'an agenda of "diversity, equity, and inclusion" that treats some groups of students as more deserving of recognition and welcome than others on account of their race or other immutable characteristic,'" Bress notes. "He therefore did not think it was appropriate for the Allen School to recommend the inclusion of this 'political statement' in syllabi. Reges also disagreed with the factual premise of the land acknowledgment, as he believed that 'most of the land currently occupied by UW was densely forested before the land was cleared to make way for the campus.' He thought the land acknowledgment expressed 'that UW's presence is somehow illegitimate, shameful, morally wrong, or unlawful,' and considered it 'an empty, performative act of moralism' ripe for parody."
Administrators were not amused. Reges' syllabus statement came to the attention of Magdalena Balazinska, director of the Allen School, on January 4, 2022, when a colleague shared a Reddit thread about it with her. That same day, she emailed Reges, demanding that he remove the statement from his online syllabus "immediately" because it had created "a toxic environment" in a course that all computer science majors had to take. When Reges refused, Balazinska instructed I.T. staff to expurgate the offending statement.
The controversy attracted media attention, including an interview with Reges on a local conservative talk show and coverage in the student newspaper. Reges stood his ground, saying he planned to "continue this protest when I teach the CSE142 course in spring and will have the opportunity to distribute a syllabus on paper," which he noted would be "more difficult to censor."
On March 2, 2022, Balazinska launched an investigation of Reges for possible violations of the faculty code, university policy, and the school's collective bargaining agreement. When Reges again refused to desist, College of Engineering Dean Nancy Allbritton, who oversees the Allen School, convened a special faculty committee, which that October issued an oral report averring that Reges' statement had a "significant impact"
on the "morale of Native American students" and "their learning," describing "the level of disruption" as "extraordinary." As evidence of that disruption, the committee claimed one Native American student had taken a leave of absence while another had dropped out of the university.
The first student, Bress notes, was not even enrolled in Reges' course and "described other factors influencing the decision to take a leave of absence, including the lack of available tutoring services, the Allen School's focus on testing, and feeling 'used' after meeting with Balazinska to discuss Reges." Bress adds that the university "could not explain whether this student's mental health problems began with or pre-dated Reges's speech." As for the student who supposedly had dropped out, "it appears undisputed that this student does not exist."
Unfazed by those complications, Allbritton informed Reges in June 2023 that the investigative committee concluded he probably had violated university policy by causing "significant disruption." She declined to impose sanctions in light of the possibility that Reges' statement was "intended to generate discussion." She noted that Reges had been allowed to express his opinion by posting the syllabus statement on his office door and including it in his email signature.
That tolerance of Reges' dissenting views, Allbritton implied, showed that the university was cognizant of his First Amendment rights. But it also undermined the claim that his opinions were intolerable in the context of his course syllabus because of the consternation they provoked. Allbritton nevertheless warned Reges that if he caused "significant disruption" by including his statement in future syllabi, "I will have no option but to conclude that your intent is to cause deliberate offense and further that disruption," thereby violating the faculty code and Executive Order 31. In that case, she said, she would have to "proceed with next steps."
In addition to the student who took a leave of absence in ambiguous circumstances and the apparently nonexistent student who allegedly had left the university, administrators cited complaints from students who were offended by Reges' syllabus statement. They also noted that about a third of Reges' 500 students transferred to a CSE 143 section taught by a different instructor after the university offered that option in January 2022. But as Bress notes, "the record does not indicate why they did so."
Although "these students were informed that the grading system would not change for this alternative section, the new instructor had a preexisting reputation for more lenient grading and a different lecture style," Bress writes. "There are many reasons why students would leave one class for another, including general dislike for the professor (or, as may be the case here, his expression of other unpopular views that UW does not claim are unprotected). None of this demonstrates disruption sufficient to justify limiting or punishing Reges's academic speech."
At bottom, Bress says, the disruption that Reges allegedly caused is inseparable from the content of his constitutionally protected speech. "It is readily apparent that the disruption that occurred at UW after Reges included his land acknowledgment in his Winter 2022 syllabus is attributable to one irreducible source: student discomfort and anger with Reges's views," he writes. "The First Amendment's protections for academic freedom in public universities will necessarily lead to disagreements on campus. Student unrest is an inevitable byproduct of our core First Amendment safeguards in the higher education context. This unrest therefore cannot be the type of disruption that permits restricting or punishing a professor's academic speech."
The 9th Circuit's ruling "recognizes that sometimes, 'exposure to views that distress and offend is a form of education unto itself,'" says FIRE Legal Director Will Creeley. "As we always say at FIRE: If you graduate from college without once being offended, you should ask for your money back."
