Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Dean was immune from free-speech claim brought by anti-tenure business school professor, (May 22, 2025)

By Jason Albright, J.D.

From December 2012 to July 2013, the professor wrote several articles that critiqued tenure generally.

The former dean of the business school at Texas Tech University was entitled to qualified immunity against the First Amendment claims of a professor who alleged that he suffered retaliation—in the form of a de facto demotion—for authoring several op-eds that criticized tenure, the Fifth Circuit found. The professor argued that “[t]he law was clearly established that the First Amendment protects speech directed to a person outside of the workplace on a matter of public concern,” but his descriptions of clearly established law were not sufficiently tied to “the specific context of the case”; it was not clearly established at the time that his speech regarding tenure addressed a matter of public concern. Judge Dennis dissented (Wetherbe v. Texas Tech University System, No. 19-11325 (5th Cir. May 20, 2025)).

Business professor. The plaintiff, according to the court, is a business professor who has taught, published, consulted, and presented extensively in the field over the past several decades.

Anti-tenure views and actions. Throughout his career, he has been known for his anti-tenure views: He believes tenure is harmful because it is “an obstacle to change” and is “more about job security than academic freedom.” Further, his “actions mirror his beliefs,” according to the court; he resigned tenure at the University of Houston and the University of Minnesota, and he declined tenure at the University of Memphis and at Texas Tech University (TTU), one defendant in the case.

Work at TTU. In 2000, the professor joined TTU as the Robert G. Stevenson Chair in Information Technology. In his offer letter, TTU stated that it understood the professor “reject[s] tenure.” The appointment was initially for three years but was renewable, and the professor held the position until 2014 when the dean, the defendant at issue here, refused to extend it.

Not interviewed for dean position. In 2011, the plaintiff became a candidate for that same position as dean of TTU’s Rawls College of Business. He alleged that, although the search committee listed him as one of the top four candidates, the provost declined to interview him because of his views on tenure. The position ultimately went to the defendant at issue, who was not one of the original four candidates selected for an interview.

Prior lawsuit. The professor initially sued the provost under 42 U.S.C. § 1983 for allegedly retaliating against him for his anti-tenure speech during the search for the dean, and in an interlocutory appeal, the Fifth Circuit court held that the professor failed to state a claim.

Anti-tenure articles and friction with dean. Friction between the two ensued not long after TTU selected the dean, and the professor argued that part of the tension related to his anti-tenure speech. From December 2012 to July 2013, the professor wrote several articles that critiqued tenure generally, and reporters discussed his lawsuit against TTU in other articles.

Alleged retaliation. In his present lawsuit, the professor alleged that in August 2013, the dean allegedly removed him from teaching the MBA communications course, falsely accused him of sexual harassment, and replaced him as faculty advisor for the MBA student association.

The professor then published another article criticizing tenure, and the dean revoked his emeritus status for the Dean’s Advisory Council in September 2013.

Outside piece, Best Buy grant, and more . . . Then, in November 2013, a reporter published another piece addressing the debate over tenure and the professor’s lawsuit specifically. Over approximately the following year and a half, the dean allegedly made false financial misconduct claims against the professor, directed him to discontinue using a grant from Best Buy to fund one of his projects, refused to renew his Stevenson Chair position, declined to reimburse one of his trips, and informed him that he would be treated as a Professor of Practice for workload purposes, which increased his teaching load by 50 percent.

Costly. The professor alleged that his removal from the MBA program triggered a 20 percent reduction in his annual compensation, that the denied use of the Best Buy grant adversely affected his income by $50,000, and that the loss of the Stevenson Chair position cost him $90,000 in funding per year.

New dean. As of the filing of his third amended complaint in 2019, the professor continued to publish about tenure, and reporters continued to discuss his views on tenure and lawsuits against TTU. The dean was replaced in December 2015, and since then, the interim dean and new dean have not “engaged in new retaliation.”

Present lawsuit. The professor sued the former dean, TTU, and the new dean for First Amendment retaliation based on his anti-tenure publications and his prior lawsuit. The district court granted the defendants’ motion to dismiss for failure to state a claim, holding, among other things, that the professor’s speech did not involve a matter of public concern. On appeal, he abandoned his retaliation claim based on his prior lawsuits, and he challenged only the district court’s dismissal of his claim pertaining to the anti-tenure publications.

Decisions below and present appeal. In Wetherbe II, issued in 2017, a per curiam Fifth Circuit reversed the district court’s dismissal in part, holding that the professor’s anti-tenure speech was on a matter of public concern. The court affirmed in part, however, because the professor conceded that res judicata, collateral estoppel, and sovereign immunity barred some of the claims and issues in his complaint. The appeals court did not address whether the law was clearly established that his speech was on a matter of public concern or any other qualified immunity issues, and the district court at that point had also not yet addressed whether the law was clearly established.

On remand, the district court denied the defendants’ second amended Rule 12(c) motion, holding that the professor sufficiently alleged a constitutional violation and that the former dean’s actions were objectively unreasonable in light of clearly established law. The defendants timely appealed.

Qualified immunity. The appeals court initially observed that the central issue on appeal is qualified immunity. The U.S. Supreme Court established that “[q]ualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Courts may address the two prongs in any order, and defendants are entitled to qualified immunity if the plaintiff fails on either prong.

Level of generality. Resolving the issue on the second prong, the Fifth Circuit found that the district court erred by defining the professor’s rights at too high of a level of generality. The district court’s order denying the former dean qualified immunity held that “it was clearly established that a state official could not impose adverse employment actions on a state employee on account of that employee’s outside speech on a matter of public concern.” This was a general legal proposition, however, and it did not go far enough in “fram[ing] the constitutional question with specificity and granularity.”

“Clearly established” right and matter of public concern. Here, the Fifth Circuit found that it was not clearly established that the professor’s speech regarding tenure addressed a matter of public concern. The relevant alleged retaliatory acts occurred from August 2013 to March 2015, the court found, and prior to–and during—that timeframe, no clearly established law would have put every reasonable person on notice that the professor’s speech regarding tenure involved a matter of public concern.

Wetherbe II? The court’s opinion in Wetherbe II, the court noted, said that the professor “plausibly alleged that his speech in the form of articles published on tenure constituted speech on a matter of public concern.” And, though “[t]hat may be law of the case… it is not binding precedent as to whether articles by a nontenured employee of a university about problems with tenure is speech on a matter of public concern.” Nor could the 2017 decision in Wetherbe II clearly establish the law from August 2013 to March 2015; it postdated the former dean’s alleged retaliation. That case was also unpublished, observed the court, and its analysis did not support the professor’s position that it was clearly established from August 2013 to March 2015 that his speech on tenure regarded a matter of public concern.

Not “constitutional question beyond debate.” Declining to summarize all its First Amendment retaliation cases, the Fifth Circuit observed that “it suffices to say that none of our (or the Supreme Court’s) precedents place the ‘constitutional question beyond debate.’” As with the cases Wetherbe II had cited, some provided “rules and analyses that one could reasonably apply to suggest that [the professor’s] speech was on a matter of public concern,” but “‘clearly established law comes from holdings,’” and “none of our cases have held that speech regarding tenure is on a matter of public concern, or anything approaching that.”

Dissent. In his dissent, Judge Dennis said he would find that the professor sufficiently alleged a violation of his constitutional rights that was clearly established at the time of the incident, as evidenced by binding precedents cited in Wetherbe II.

The case is No. 19-11325.

Judge: Richman, P.

Attorneys: Fernando Manuel Bustos (Law Offices of Fernando Bustos) for James C. Wetherbe. Beth Ellen Klusmann, Office of the Texas Attorney General, for Texas Tech University System.

Companies: Texas Tech University System

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