Report from the Trenches: Status of Demer's Lawsuit

Professor Appeals Dismissal of Free Speech Lawsuit Against WSU Administrators
    The First Amendment does not protect college professors who criticize the quality of university programs, even if they offer, as citizens, plans to improve the program and pledge to donate $100,000 of their own money to implement them, a U.S. district court judge has ruled.

    Robert H. Whaley of Spokane, Wash., has dismissed a 2009 lawsuit filed by tenured journalism and mass communication associate professor David Demers against four Washington State University administrators.

    The lawsuit accused the administrators of fabricating evidence to discipline Demers in his annual reviews from 2006 to 2008, partly in retaliation for a “7-Step Plan” Demers created in 2007 to improve the quality of the Edward R. Murrow College of Communication professional programs. None of the programs is nationally accredited.

    Demers’ attorney, Judy Endejan of Graham & Dunn, Seattle, is filing an appeal this month with the Ninth Circuit Court of Appeals, which previously has ruled that speech similar to Demers’ is deserving of First Amendment protection.

    However, to justify his decision to dismiss the case, Whaley cited a 2006 U.S. Supreme Court (5-4) decision that overturned a Ninth Circuit decision and upheld the power of a former Los Angeles district attorney to discipline one of his subordinates who revealed that law enforcement officers had made false statements to obtain a search warrant before arresting a man. In Garcetti v. Cabellos, the court ruled that government employees have no First Amendment protection for statements made as professionals, even when they act as whistle blowers. Employees have protection only for statements made as citizens.

    Although Demers formally submitted the 7-Step Plan as a citizen, not as an employee, Whaley ruled that the plan was part of Demers’ job responsibilities. He also ruled that the quality of university programs is not a matter of public concern, another condition the Supreme Court set in Garcetti for plaintiffs to win free speech cases. And Whaley ruled that the university administrators have immunity from prosecution even if they falsely accuse faculty of violating university rules.

    Despite Whaley’s ruling, the legality of professors’ rights to criticize university administration is far from settled. On April 6, 2011, the Fourth Circuit Court of Appeals ruled that a University of North Carolina professor whose professional publications criticized administrators were protected speech even though he submitted them as part of his case for promotion (Adams v. The Trustees of UNC).

    Whaley did not mention or address the issues raised in the Adams case.

    If Whaley’s decision is upheld, it means that faculty at public universities can be disciplined for any criticism they make of university administrators. The American Association for University Professors and groups representing whistle blowers believe public employees have a right to criticize their superiors without fear of retribution, but the five members of the Supreme Court disagree. 

    Although most plaintiffs are upset when their case thrown out of court, Demers said there is a thick silver lining.

    “First, Whaley’s decision and the appeal now mean that much more attention will be given to an important, unrecognized social problem in America: the lack of legal protection for public employees and whistle blowers who draw attention to mistakes, incompetency and illegal behavior in public bureaucracies. A democratic, just society clearly needs to protect these public employees.

    “Second, the case shows that WSU administrators are more concerned about controlling their employees than in protecting their free speech rights and supporting democratic processes. Professors extol the principles of free speech and democracy in their classes, but university administrators often act in contrary or authoritarian ways. If WSU university administrators felt strongly about free speech rights, they would have fought this case on substantive grounds -- whether the evidence supported the charges -- rather than on procedural grounds.”

    Third, Demers said the most important principle is not winning the case, but fighting for First Amendment rights. “The First Amendment is a work in progress, not a fixed, unchangeable right. Courts and judges make mistakes, and cases lost now can become codified into the law in the future. I have confidence that the Supreme Court eventually will see the error of its ways. I feel good knowing that I did all I could to support First Amendment rights for government employees.”

    If Whaley’s decision is upheld by the appeals court, some legal experts say it will be the beginning of the end to shared governance at universities. Shared governance is the idea that faculty, not just administrators, have the right to participate in budgetary, administrative and curricula decisions. Demers also said that if Whaley’s decision stands, WSU administrators will ramp up their efforts to fire tenured faculty. His lawsuit revealed that administrators have quietly fired “five to 10” tenured faculty in recent years.


David Demers