The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Hiers v. Board of Regents, released today by Judge Sean Jordan (N.D. Tex.):
Writing for himself and Justice Brandeis nearly a century ago, Justice Oliver Wendell Holmes extolled what he viewed as a foundational tenet of freedom of expression in our country: "[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate." Since that time, the Supreme Court has consistently recognized that the Founders "believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth."
This case implicates these bedrock constitutional principles protecting freedom of thought and expression. The setting is a public university, the University of North Texas ("UNT"), and the speaker is [an untenured] mathematics [adjunct] professor at that university, and a public employee, Nathaniel Hiers. Amidst a slew of constitutional claims asserted by Hiers following his departure from UNT, a single question is paramount: What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer? …
On November 26, 2019—the same day that Hiers [a nontenured, adjunct professor,] stated his desire to teach a second class in the spring—the incident forming the basis of this lawsuit occurred. An anonymous person had placed in the mathematics faculty lounge a stack of flyers, each of which warned faculty against committing "microaggressions" on college campuses. The flyer defines microaggressions and provides examples of statements characterized as microaggressions that it suggests faculty should avoid using in the workplace. For instance, statements such as "I believe the most qualified person should get the job" and "America is the land of opportunity" are cited as microaggressions promoting the "[m]yth of [m]eritocracy."
Upon seeing these flyers, Hiers—in what all parties agree was intended as a joke—picked up a stick of chalk, drew an arrow pointing to one of the flyers, and wrote the following message on a nearby chalkboard: "Please don't leave garbage lying around." …
Hiers' contract was not renewed as a result of this; his department chair, Ralf Schmidt, explained the decision this way:
My decision not to continue your employment in the spring semester was based on your actions in the grad lounge on 11/26, and your subsequent response.
In our conversation you characterized the flyers that upset you as political statements. I looked at them in detail, and they are anything but. Every example of a microaggression listed there makes very much sense, and I am disappointed about your general dismissal of these issues and that you failed to put yourself in the shoes of people who are affected by such comments.
I also think that leaving behind a chalkboard message like you did is not a benign thing to do. Think about how people who see this might react. They don't know who wrote this; it might be a faculty member, grad student or anyone else. The implicit message is, "Don't you dare bringing [sic] up nonsense like microaggressions, or else." This is upsetting, and can even be perceived as threatening.
Finally, I was disappointed at your response during our conversation. Everyone makes mistakes, and I'm all for forgiveness if actions are followed by honest regret. But you very much defended your actions, and stated clearly that you are not interested in any kind of diversity training.
In my opinion, your actions and response are not compatible with the values of this department. So with regret I see no other choice than to not renew your employment. Please know it gives me no pleasure; in fact, we were counting on you, and it causes considerable difficulties to replace you as a teacher….
The court concluded that Hiers' First Amendment retaliation claim could go forward:
Public employees do not surrender all First Amendment rights because of their employment…. [W]hen citizens enter government service, they necessarily accept certain limits on their freedom of speech…. But if employee expression [that is not part of the employee's official duties] touches on a matter of public concern, the First Amendment prohibits the government from taking an adverse employment action against the employee for such expression without sufficient justification.
It is undisputed that Hiers suffered an adverse employment decision—termination—and his speech motivated the university officials' termination decision. That leaves two questions: First, was Hiers speaking on a matter of public concern? And if so, was Hiers's interest in doing so greater than the university's interest in promoting the efficiency of the public services it provides through its employees? The university officials do not address the second question, so the Court will focus its analysis on whether Hiers's speech touched on a matter of public concern….
Personal complaints and grievances about conditions of employment are not matters of public concern. Rather, speech addresses a matter of public concern when it relates "to any matter of political, social, or other concern to the community." The lynchpin of the inquiry, then, is the extent to which the speech advances an idea that transcends personal interest or conveys a message that impacts our social or political lives.
Here, Hiers's critique of the flyer on microaggressions transcended personal interest and touched on a topic that impacts citizens' social and political lives. His speech did not address a personal complaint or grievance about his employment. The point of his speech was to convey a message about the concept of microaggressions, a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education.
True, Hiers's chalkboard message did not illuminate his reasons for disagreeing with the flyer. Hiers did not, for example, articulate his belief that "many of the statements that the fl[y]er condemns as 'microaggressions' can (and should) be interpreted in a benign or positive manner" and that "the fl[y]ers teach people to focus on the worse possible interpretation of the statement, to disregard the speaker's intent, and to impute a discriminatory motive to others." Had he done so, there would be little doubt—if any—that his speech would be constitutionally protected. But taken in context, the result is the same: Hiers's speech reflected his protest of a topic (microaggressions) born from the present-day political correctness movement that has become an issue of contentious cultural debate.
The flyer itself, which Hiers effectively incorporated by reference into his message, supplies important content and context. It broadly defines microaggressions as "everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership." A microaggression, in other words, can be composed of non-threatening speech, deployed unintentionally, or the result of unconscious stereotypes or bias. The flyer contains examples of purported microaggressions that people—in particular, university faculty members—should avoid in the name of reducing the harm to marginalized groups. Statements such as "I believe the most qualified person should get the job" and "America is the land of opportunity" are cited as microaggressions promoting the "[m]yth of [m]eritocracy." And the phrase "America is a melting pot" is listed as a microaggression because of its "[c]olor [b]lindness."
Hiers responded by criticizing the concept of microaggressions promoted by the flyer. That he did so by jokingly referring to the flyer as "garbage" does not deprive his speech of the First Amendment's protection. See Rankin v. McPherson (1987) (holding that a hyperbole about assassinating the President during a conversation about the President's policies addressed a matter of public concern). After all, humor and satire are time-tested methods of commenting on a matter of political or social concern…. And while Hiers's chalkboard message was not detailed or well-reasoned, it unequivocally advanced his viewpoint on microaggressions. In Hiers's words, the concept of microaggressions described by the flyer, is "garbage." See Snyder v. Phelps (2011) ("While these messages may fall short of refined social or political commentary, the issues they highlight … are matters of public import … [and t]he signs certainly convey [the speaker's] position on those issues[.]").
Arguing that Hiers's speech did not relate to a matter of public concern, the university officials characterize his message as "uncivil" and attempt to draw parallels between this case and those involving the use of profanity or sexually explicit comments in the classroom…. [But p]utting aside whatever one might think about his viewpoint, an objective reader would understand Hiers's criticism of microaggressions as a criticism concerning a hotly contested cultural issue in this country. Moreover, Hiers's method of communicating his criticism did not involve the kind of features that would place it outside the First Amendment's ordinary protection. For example, Hiers's message, while perhaps rude or even offensive, did not amount to "fighting words." Nor was Hiers's speech obscene as that term is understood. Rather, Hiers expressed the kind of pure speech to which the First Amendment provides strong protection.
The First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate." So while Schmidt, the other university officials, and some UNT professors may have taken great offense at Hiers's chalkboard message, that offensiveness is "irrelevant to the question whether it deals with a matter of public concern." To be sure, nothing that Hiers said could be more disturbing than a law-enforcement employee's expressed desire to see violence inflicted on the President of the United States. See Rankin (holding that such speech was constitutionally protected).
The university officials' reliance on Martin v. Parrish (5th Cir. 1986), only serves to underscore the flaws in their argument. In Martin, a university professor was terminated for telling his students while teaching that their attitude was "a bunch of bullshit" and that "if you don't like the way I teach this God damn course there is the door," among other profane phrases. Concluding that these "epithets did not address a matter of public concern," the Fifth Circuit explained that "surroundings and context are essential" when determining whether constitutional protection is afforded to indecent language. Taken in context, the court reasoned, the professor's profanity "constituted a deliberate, superfluous attack on a captive [student] audience with no academic purpose or justification."
Hiers's speech is meaningfully different from that in Martin in terms of both content and context. As to content, Hiers used no profane or vulgar language. When the Fifth Circuit said that schools could punish "lewd, indecent or offensive speech," it did not mean to include all speech that someone somewhere might find subjectively offensive. Otherwise, government restrictions would encompass nearly all forms of speech, and the First Amendment would be rendered a nullity in the public-employment context. And as to context, which is "essential," Hiers's speech did not take place in a classroom or in front of a captive audience of students. He spoke to his colleagues and supervisors in the faculty lounge, where professors regularly talk about political and social issues with one another, "and often with a heavy dose of banter." Put simply, Martin holds no sway here.
The same is true of Buchanan v. Alexander (5th Cir. 2019). There, the Fifth Circuit determined that the use of profanity and sexually explicit discussions about professors' and students' sex lives were not related to the education of college students training to be preschool and grade school teachers and did not touch on a matter of public concern. That's because, "in the college classroom context, speech that does not serve an academic purpose is not of public concern." Again, Hiers did not use profanity, speak about professors' or students' personal lives, or speak in the classroom context. So once more, the university officials are comparing apples to oranges.
Switching gears, the university officials point out that it's unclear from the complaint whether there was widespread debate on microaggressions at UNT when Hiers spoke on the subject. That may be true, but it doesn't change the outcome here…. Hiers's speech directly addressed a newsworthy social and cultural issue that continues to be an important and sensitive topic in public discourse, especially as it relates to colleges and universities across the country. In recent years, the concept of microaggressions has been vigorously debated by scholars, as well as the subject of congressional testimony. To suggest that speech on such a matter is not of public concern is to deny reality….
Together with content and context, the form of Hiers's criticism of microaggressions also weighs in his favor—though only slightly…. Hiers's speech was not made in public or visible to everyone in the larger university community. But neither was it made in private. Similar to the intra-office questionnaire in Connick v. Myers (1983), Hiers's criticism of microaggressions was displayed on a communal chalkboard in a space open to faculty, administrators, and possibly even doctoral graduate students. What's more, Hiers alleges that UNT professors regularly discussed all manner of topics, including political and social issues, in the faculty lounge…. [T]he chalkboard appears to have served as a sort of bulletin board for the UNT mathematics department. Thus, although Hiers did not sign his name to the chalkboard message, his speech could have triggered a more robust intra-office debate on the topic of microaggressions. After all, Hiers was responding to someone else's anonymous speech when he criticized the flyer, and his anonymity did not last long. Under these circumstances, the form factor weighs slightly in favor of finding that Hiers's speech touched on a matter of public concern. In sum, the Court concludes that the content, context, and form of Hiers's chalkboard message, as revealed by the whole record, show that his speech touched on a matter of public concern….
Having determined that Hiers spoke on a matter of public concern, the next step for the Court is to balance his interest in speaking against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
In balancing these interests, courts consider "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." It is unnecessary "for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." But there must be some "reasonable predictions" or "danger" of disruption.
Here, the university officials have not addressed the Pickering balancing test, effectively conceding the point at this early stage. They have not asserted any interest in restricting the speech at issue—let alone argued that any such interest outweighs Hiers's interest in speaking…. [B]ecause one side of the scale sits empty, the Pickering balance strongly favors Hiers. The Court thus concludes that Hiers plausibly alleged that his interest in speaking on the topic of microaggressions outweighed UNT's interests—whatever those might be—in restricting his speech. Hiers's retaliation claim passes step two of the Pickering balance….
"Preserving the 'freedom to think as you will and to speak as you think' is both an inherent good, and an abiding goal of our democracy." The university officials allegedly flouted that core principle of the First Amendment when they discontinued Hiers's employment because of his speech. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech….
The court also concluded that, to the extent the decision not to rehire Hiers was motivated by his refusal to apologize, that violated Hiers' right not to be compelled to speak:
Hiers alleges that the university officials … pressured him to apologize for expressing his views on microaggressions. Based on the complaint and its attachments, particularly Schmidt's email detailing the reasons for Hiers's termination, it is not clear what this apology would have entailed. On the one hand, Hiers may have been pressured to apologize for the way he delivered his message—attacking a colleague's belief in a flippant manner—rather than for the viewpoint he expressed.
But Hiers's allegations, on the other hand, also give rise to a plausible inference that this apology would have involved him recanting his contrary beliefs about microaggressions. After all, Hiers alleges that the university officials terminated him not only because he refused to apologize for his speech but also because he declined to attend additional diversity training. Taking these allegations as true and viewing them in the light most favorable to Hiers, it is plausible that the university officials unconstitutionally punished Hiers for refusing to affirm a view—the concept of microaggressions—with which he disagrees…. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." … [And] Hiers has plausibly alleged that the university officials discontinued his employment—that is, punished him—because he did not express honest regret about his views and speech on microaggressions….
[A]ccording to the complaint, Schmidt … pressured [Hiers] to apologize for expressing his views on microaggressions. The university officials then terminated Hiers's employment, according to the complaint, because he stood by his criticism of microaggressions, did not apologize for his message, and declined to participate in extra diversity training. These allegations—again, taken as true and viewed in the light most favorable to Hiers—support a plausible inference of compulsion.
Finally, the university officials argue that Hiers "was never required to publicly announce his support for the concept of microaggressions or to otherwise publicly apologize for his conduct." But they cite no authority, and the Court has found none, indicating that it matters whether the government seeks to compel speech in public or in private. To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period.