Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Professor, critic of university’s DEI policies, cannot revive claims, (Nov 3, 2025)

By Todd Harrison, J.D.

His chilled-speech claim was indistinct from his First Amendment retaliation claim, and because he failed to plead that he suffered an adverse employment action, his claims could not succeed.

Affirming a district court’s grant of summary judgment against the Section 1983 free-speech claims asserted by a University of Texas at Austin (UT) professor, the Fifth Circuit found that although the professor had alleged several sanctions he would face if he continued to speak his mind on public issues, he had nevertheless failed to establish he suffered an adverse employment action as a result of his speech, a necessary element of a retaliation claim, which in turn was indistinguishable from his chilled-speech claim (Lowery v. Mills, No. 24-50879 (5th Cir. Oct. 31, 2025)).

The professor teaches at the McCombs School of Business and serves as an Associate Director at the Salem Center for Public Policy, an academic institute that is part of the McCombs School.

Criticisms. Using a range of outlets, the professor voiced his opinions about critical-race theory, affirmative action, academic freedom, and other hot-button issues. Some of his criticisms have been personal, such as implying that the president of the university engaged in nepotism with regard to one of his children.

These criticisms were amplified by the professor on Twitter, urging his followers not to give money to universities such as UT because they were advancing left-wing causes. A colleague was asked by administrators to tell the professor to tone down his rhetoric as his speech was “impeding the operations of the school and the ability to fundraise.” The colleague was further asked to inform the professor that his relationship with the Salem Center was in jeopardy if he continued with his public criticisms.

Eventually, the professor set his Twitter account to “private,” and stopped using the platform altogether in August 2022. Meanwhile, another colleague emailed a UT police officer, advising him to look at the professor’s tweets.

Lawsuit. Subsequently, the professor filed this lawsuit against UT administrators in their official capacities, alleging Section 1983 claims for chilling of his free speech by state actors and retaliation for engaging in protected speech. Granting UT’s motions to dismiss and for partial summary judgment, the district court agreed with UT that the professor’s chilled-speech claim was “in essence a First Amendment retaliation claim... which requires a plaintiff to demonstrate an adverse employment action.”

The district court went on to hold that because the professor had not suffered an adverse employment action, he had “not properly alleged a First Amendment violation—for either retaliation or for the unconstitutional stifling of speech under § 1983.” In addition, the court found that he had failed to allege a facial or as-applied First Amendment challenge to any unwritten speech code employed by UT.

Finally, the district court considered UT’s motion for partial summary judgment on the professor’s chilled-speech claim, concluding that even if the professor could make out a plausible claim, he would not survive summary judgment, noting that even if the professor received additional information from UT’s president through a deposition, it would still not produce sufficient evidence to show an adverse employment action. This appeal followed.

Standing. Before considering the merits of the professor’s appeal, the court addressed UT’s argument that the professor lacked standing to pursue appellate relief. Accepting the professor’s allegations of an unwritten speech code as true, the court explained that the purported existence of such a code was all that was necessary for standing to seek a preliminary injunction in this type of case.

As to the chilled-speech and retaliation claims, the court determined that because the professor stopped tweeting in August 2022 in response to the perceived threats to his speech, this self-chilling was an ongoing injury. Further, the professor alleged several sanctions he could face if he continued to speak his mind on public issues, including the possibility of having his pay docked, having his position at the Salem Center revoked, and being subject to police surveillance. These are all consequences that could lead a reasonable individual to self-chill, said the court, and were sufficient to confer standing.

Same claims. Turning to the professor’s claims, the court determined that his chilled-speech claim and retaliation claim were “materially the same.” Both counts alleged that UT’s actions in response to the professor’s speech led him to self-censor. However, the professor argued that they were distinct. Such a distinction matters, explained the court, because a retaliation claim requires a plaintiff to demonstrate an adverse employment action, whereas a chilled-speech claim would presumably have easier elements to satisfy.

With regard to the elements of a chilled-speech claim, the professor failed to establish what the exact elements of a distinct chilled-speech claim would consist of. None of the cases cited by the professor recognized any freestanding chilled-speech claim distinct from the retaliation claim. Thus, the chilled-speech claim would rise or fall with the retaliation claim.

Competing standards. The professor’s retaliation claim hinged on how “adverse” an “adverse employment action” need be, with the professor admitting that a “First Amendment retaliation claim requires proof that a plaintiff suffered an adverse employment action because of his speech.” Thus, the question before the court was whether “the Breaux completed-adverse-employment-decision test still governs, or whether the more speech-protective Burlington Northern standard applies.”

Breaux.Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000), set forth the elements a plaintiff must satisfy to establish a retaliation-for-protected-speech claim, including that the plaintiff must suffer an adverse employment decision. According to that opinion, in the “education context,” “decisions concerning teaching assignments, pay increases, administrative matters, and departmental procedures... do not rise to the level of a constitutional deprivation.”

Burlington. According to the professor, the more speech-protective standard established in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) should apply. There, the Supreme Court explicitly rejected the “adverse employment action” test employed by the Sixth Circuit, which it “defined as a ‘materially adverse change in the terms and conditions’ of employment.”

The upshot, contended the professor, was that he need only allege that UT’s actions would dissuade a reasonable employee from speaking freely, not that UT took an adverse action against him. To support this assertion, the professor argued that Burlington implicitly overruled Breaux and similar Fifth Circuit decisions because the Supreme Court “rejected the application of the ‘ultimate employment decisions [standard].’” The court here did not agree.

“Burlington does not constitute an unequivocal overruling of Breaux,” said the court. Burlington’s holding concerned retaliation claims brought under Title VII, not claims brought forth under the First Amendment, explained the court, which proceeded with its analysis under Breaux.

Adverse employment actions. Under Breaux, adverse employment actions “are discharges, demotions, refusals to hire, refusals to promote, and reprimands.” The professor alleged that UT retaliated against him by threatening to reduce his pay, involuntarily end his affiliation with the Salem Center, reduce his access to research opportunities, placing him under police surveillance and otherwise disciplining him. Given the legal framework established by Breaux, none of these allegations were sufficiently adverse, said the court, noting that the professor was not fired or demoted, and in fact had his contract renewed with a pay increase. Because the professor could not show that he suffered an adverse employment action, his retaliation claim could not succeed.

Speech code. Next, the court addressed the professor’s facial and as-applied challenge to UT’s alleged “unwritten speech code.” Specifically, the professor alleged that it was “inappropriate for UT administrators to pick-and-choose which faculty members’ political viewpoints get to use provocative language,” contending that “leftwing faculty” were not asked to be more civil or placed under police surveillance.

Although the First Amendment generally prohibits public employers from disciplining employees for their political beliefs, “it does not require university administrators to be equally charitable to all their colleagues,” said the court, rejecting this claim along with the professor’s assertion that the alleged speech code constituted overbreadth.

Discovery. Finally, the professor challenged two discovery rulings: (1) whether certain communications among UT administrators should be protected by attorney client privilege; and (2) whether the professor should be permitted targeted discovery regarding nepotism allegations against UT’s president.

As to the first claim, the professor’s argument relied mainly on the proposition that courts “must differentiate between in-house counsel’s legal and business work.” However, such an argument goes to whether the documents were in fact privileged, not whether the district court abused its discretion in accepting the magistrate judge’s findings that they were.

Regarding the second claim, the court explained that even if the district and magistrate judges abused their discretion by blocking discovery into the president’s son’s admission into UT, the professor was not prejudiced by that decision. Accordingly, the judgment of the district court on these issues was affirmed.

The case is No. 24-50879.

Judge: Smith, J.

Attorneys: Attorneys: Endel Kolde, Institute for free Speech, and Michael Lovins (Lovins Trosclair) for Richard Lowery. Adam Warren Aston (Jackson Walker) for Lillian Mills.

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