Professors Lacked First Amendment Right to Post Flyers Calling Colleague and Student Group Racist

From Gruber v. Tenn. Tech. Bd. of Trustees, decided May 16 by Sixth Circuit Judges Richard Griffin, Helene White, and Eric Murphy, but just posted on Westlaw; for criticism of the lower court decision, which the panel upheld, see this post by our own Keith Whittington:

Dr. Julia Gruber and Andrew Smith … are professors at Tennessee Technological University (TTU). They … [sued Dr. Lori] Bruce, who is TTU’s provost and vice president for academic affairs, … alleg[ing] claims of First Amendment retaliation … based on discipline that Bruce imposed on Gruber and Smith after they distributed flyers on campus. The flyers included a photograph of another professor, Dr. Andrew Donadio, and stated that (1) Donadio is a racist who was helping start a chapter of Turning Point USA at TTU, (2) Turning Point USA is a national hate group that allows racist students to unite to harass, threaten, intimidate, and terrorize minorities and other groups, and (3) Donadio and Turning Point USA are not welcome at TTU….

To establish a First Amendment retaliation claim, a plaintiff must show that she engaged in private, constitutionally protected speech or conduct, the defendant took an adverse action against her that would deter a person of ordinary firmness from continuing to engage in that conduct, and the adverse action was motivated at least in part by the protected conduct.

When deciding whether the plaintiff engaged in protected activity, we first determine whether the action constitutes speech on a matter of public concern, and if it does, we apply the “Pickering balancing test” to determine whether the plaintiff’s interest in commenting outweighs the defendant’s interest as an employer in promoting the efficiency of the public services it performs through its employees. The balancing test considers the manner, time, and place of the expressive action, and the pertinent considerations include whether the action (1) impairs discipline by superiors or harmony among coworkers, (2) negatively affects close working relationships for which personal loyalty and confidence are necessary, (3) impedes performance of the speaker’s duties or interferes with the employer’s regular operations, and (4) undermines the employer’s mission….

TTU does not dispute that the district court properly concluded that the plaintiffs’ speech was a matter of public concern. Even so, as the district also properly concluded, the plaintiffs’ distribution of the flyers was not protected speech because their speech interest was outweighed by TTU’s interest in preventing a disruption to its pedagogical and collegial environment….

At the outset, the “manner” of the plaintiffs’ speech decreased its expressive value and increased TTU’s operational interests. Plaintiffs did not speak in the classroom or through scholarship, where professors’ “rights to academic freedom and freedom of expression are paramount.”

Nor is this a simple case of one professor raising a race-related issue with another or expressing disagreement with a group’s ideology, perhaps one-on-one or in a more private setting. Instead, the plaintiffs posted flyers in an academic building at a time they knew students would be on campus for class and posted an additional flyer the next day. Those flyers were highly likely to cause disruption, and they did so in several ways.

Specifically, the flyers identified Donadio as a “racist college professor” and branded members of Turning Point USA as “racist students.” They stated in bold text that the professor and group’s “hate & hypocrisy are not welcome at Tennessee Tech.” The dissemination of “disrespectful, demeaning, insulting, and rude” messages targeting a colleague and students—regardless of whether some accusations may have had basis in fact—to the entire university community undoubtably threatened to disrupt TTU’s learning environment and academic mission.

For one, flyers that publicly attack a colleague as racist and threaten that the colleague is on the anonymous author’s “list” certainly “impairs … harmony among co-workers.” {Plaintiffs protest that they did not interact with Donadio professionally, so there was no harmony to impair. But even if the professors did not work closely together, they were nonetheless colleagues on TTU’s faculty, and it was not unreasonable for Bruce to conclude that on-campus and public accusations of racism—even between colleagues who did not work together—could cause disruption of the university’s operations.}

Perhaps more critically, by attacking students, the flyers threatened the core of TTU’s educational “mission” and undermined the plaintiffs’ ability to perform their teaching “duties.” The flyers insinuated that, like Donadio, all students who were members of Turning Point USA were racist. The accusations harmed these students’ educations.

For example, one Turning Point USA member, having been deemed a racist, missed class because of the fallout. In addition, the accusations affected the plaintiffs’ effectiveness in the classroom. Students in the club, or those considering joining the club, who were taking courses with Gruber and Smith might reasonably fear the potential treatment they would receive in class due to differing political views. This case is thus factually distinguishable from cases like Pickering, where a teacher was disciplined for writing a letter to a local newspaper criticizing the school district that was “in no way directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work as a teacher.” And most basically, TTU has “an interest in fostering a collegial educational environment.” Permitting professors to circulate flyers with personal attacks on colleagues and students undoubtably undermines that interest.

To be sure, the flyers were quickly collected and affected only a handful of students and professors. But evidence of widespread disruption is not necessary: it was reasonable for Bruce to believe that, had the flyers remained posted, they could have caused far greater disruption.

Lastly, the “place” of the plaintiffs’ speech undermines their interests even further. Even if they did not undertake this speech pursuant to their official duties, they also did not engage in it away from campus as private citizens. Rather than make their claims on their personal Facebook pages or in a local newspaper, they chose to use TTU’s own property as the billboard for their speech. But public employers have greater interest in regulating speech “at the office” (or here on campus) than they do away from the public employers’ property. Indeed, the conclusion that the First Amendment protected the plaintiffs’ speech would mean that TTU remained powerless to remove the flyers off of its property. So this case raises no concern that TTU sought to “leverage” its employment relationship with the plaintiffs to regulate their speech “outside” the context of its university functions.

All told, the Pickering balancing test weighs against the plaintiffs’ speech being protected. The flyers, which attacked a professor and student organization and stated that they were not welcome on campus, created a reasonable threat of disrupting TTU’s academic mission and is the type of speech that a learning institution has a strong interest in preventing. Under the Pickering balancing test, TTU’s interest in preventing a potential disruption to its pedagogical and collegial environment outweighed the plaintiffs’ interest in distributing the flyers. Thus, the plaintiffs’ speech was not protected, foreclosing their First Amendment retaliation claim.

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