School Supervisors Can Be Personally Liable for Retaliation Against Protected Speech

A fascinating and well-written federal court opinion explores the limits of university authority over a professor's free speech. Nathaniel Hiers was an adjunct professor at the University of North Texas, and ran across a stack of pamphlets in the faculty lounge warning against various phrases that could be "microaggressions." Hiers jokingly stuck a flyer on the chalkboard, drew an arrow to it, and wrote "Please don't leave garbage lying around."

When the mathematics chair inquired about who had written it, Hiers identified himself and met with the chair. Hiers refused to apologize, defended his position, and declined to take additional diversity training. Less than a week later, he was informed that he would not receive a contract to teach the following semester. Hiers sued the university and various officials for retaliating against him in violation of his Constitutional free speech rights.

The court denied the university's motion to dismiss, finding that Hier's complaint states a valid constitutional law claim. The judge found that Hiers was commenting on a matter of public concern, and cited numerous news sources, articles, and Congressional hearings about controversy over speech and microaggressions. The court then turned to the required test for balancing free speech interests against the university's educational interests, but noted that the university had not addressed that issue. No doubt that will be a subject to discovery as the case continues.

After ruling for the university on some other claims, the court then turned to the claims of the individual defendants that they are protected from suit by qualified immunity. Under that doctrine, government employees cannot be sued unless the law is clear that they are violating constitutional rights. The court reviewed a prior Supreme Court case, Rankin v. McPherson, vindicating an employee who had expressed a wish that President Reagan had died when he was shot. Accordingly, the court decided, "Reasonable officials in the university officials’ shoes would have known that Hiers’s speech touched on a matter of public concern and that discontinuing his employment because of his speech violated the First Amendment."

Schools hate navigating controversial issues, and often go with the solution that they think will make the controversy go away as quickly as possible. That mode of thinking, however, is not compatible with a public school's obligation to protect free speech and open inquiry. As this court noted, quoting an earlier Supreme Court opinion, "freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” The obligation to protect this freedom rests not only on public institutions, but individuals in authority.