Demers v. Austin, No. 11-35558 (9th Cir. 2013)
Annotate this CasePlaintiff, a professor, filed suit alleging that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book. The court held that there was an exception to Garcetti v. Ceballos for teaching and academic writing. Pickering v. Board of Education governed such teaching and writing by publicly employed teachers. The court affirmed the district court's determination that plaintiff prepared and circulated his pamphlet pursuant to official duties; reversed its determination that the pamphlet did not address matters of public concern; concluded that there was insufficient evidence to show that the in-progress book triggered retaliation; and held that defendants were entitled to qualified immunity given the uncertain state of the law in the wake of Garcetti. The court remanded for further proceedings.
Court Description: Civil Rights. The panel affirmed in part and reversed in part the district court’s summary judgment and remanded in an action brought pursuant to 42 U.S.C. § 1983 by a tenured associate university professor who alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled “The Ivory Tower of Babel.” The panel held that Garcetti v. Ceballos, 547 U.S. 410 (2006), does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968). The panel affirmed the district court’s determination that plaintiff prepared and circulated the pamphlet pursuant to official duties, but reversed the district court’s determination that the pamphlet did not address matters of public concern under Pickering. The panel concluded, further, that there was insufficient evidence in the record to show that the in-progress book triggered retaliation against plaintiff. Finally, the panel concluded that defendants were entitled to qualified immunity from damages, given the uncertain state of the law in the wake of Garcetti.
The court issued a subsequent related opinion or order on January 29, 2014.
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