Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—9th Cir.: Professor who criticized college’s changes to math curriculum revives First Amendment claims, (Mar 11, 2025)

By Todd Harrison, J.D.

Because the speech in question related to scholarship or teaching, the professor was not barred from First Amendment protections even if he spoke pursuant to his official duties.

Reversing a district court’s dismissal of a First Amendment retaliation claim brought by a math professor at Truckee Meadows Community College, the Ninth Circuit determined that the professor’s criticism of the changes in the mathematics curriculum addressed a matter of public concern and that the subsequent adverse employment actions he experienced were at least partially motivated by his speech. Further, the court found that this claim against the college’s administrators was not barred by Eleventh Amendment sovereign immunity because the request to expunge negative records from his personnel file could be viewed as prospective in nature. Finally, although the professor failed to adequately state a claim for procedural due process and equal protection violations, the district erred in not granting him leave to amend (Jensen v. Brown, No. 23-2545 (9th Cir. Mar. 10, 2025)).

The plaintiff is a mathematics professor at Truckee Meadows Community College, part of the Nevada System of Higher Education.

Co-requisite policy. In June 2019, the Board of Regents adopted a new “co-requisite” policy where students would be placed in college level math classes even if they needed remedial math instruction. Students required to take remedial classes would do so as co-requisites, rather than pre-requisites, before taking college level math courses. To maintain course completion rates under this new policy, the math department decided to lower the academic level of certain math classes. The professor sent an email to math department faculty expressing his concerns about the new standards for coursework.

Math summit. On January 21, 2020, the college’s dean of sciences facilitated a “math summit” to discuss the co-requisite policy’s implementation “with the community.” The professor’s attempt to comment during a Q & A session was shut down. The professor then went to his office and created a handout that addressed his concerns. During a break in the session, he began distributing the handout to participants. The dean instructed him not to do so, and when he attempted to continue, was told that he had “made an error by defying her.”

Reprimand. One week after the math summit, the dean sent the professor a notice of a letter of reprimand addressing his “insubordination.” Shortly after receiving the notice, the professor emailed the college’s entire faculty, arguing the college was failing to maintain certain instructional standards required by its own handbook. An official letter of reprimand was placed in his personnel file that March.

Syllabus policies. About a week after sending this email, the professor resigned from a tenure committee, purportedly because of pressure from the dean. The dean then began to raise issues with the professor’s syllabus policies, which she characterized as “punitive.” His policies mirrored those of other professors in the department, none of whom were similarly reprimanded.

Performance evaluations. During the 2019-2020 performance evaluations, conducted in May 2020, the department chair recommended that the professor be rated as “excellent 2.” Instead, he received an “unsatisfactory” rating, the lowest possible rating. The following year, the department chair recommended that the professor be rated as “excellent.” He was again rated as “unsatisfactory.”

At this point, the college’s president was informed that the professor had received two consecutive “unsatisfactory” evaluations, triggering an automatic disciplinary hearing.

Lawsuit. Following the disciplinary hearing, the professor filed this lawsuit against various administrators alleging: (1) First Amendment retaliation; (2) procedural due process violations; and (3) equal protection violations. The First Amendment retaliation claim was brought against the administrators in their personal and official capacities. The other claims were brought against the administrators in their personal capacities only.

Moving to dismiss the professor’s claims, the administrators argued that his official capacity claim was barred by sovereign immunity and his personal capacity claims by qualified immunity. The district court granted the motion, dismissing the claims with prejudice. This appeal followed.

Public concern. First addressing the First Amendment retaliation claim, the court explained that in order to be covered under the Pickering doctrine, the professor’s speech must have been on a matter of public concern. The court determined that the professor’s speech satisfied this prong.

In his handout, the professor described how the lowered standards would impact almost a third of the college’s degree and certificate programs and how graduates would consequently have inadequate math and technical skills when entering the job market. These criticisms were grounded in the effect that the lower standards would have on the community, noting that employers in the surrounding area subsidize the college through their taxes and expect competent graduates in return.

The college contended that the handout was not widely distributed, and thus did not touch broadly on community concerns. The court was not persuaded, noting that the nature of the professor’s speech was not at issue, and as such the scope of the handout distribution did not affect its conclusion that the professor spoke on a matter of public concern.

Private citizen. Next, the court considered whether the professor spoke as a private citizen or a public employee. Here, the court noted speech about a school’s curriculum is related to scholarship or teaching, and thus falls outside of the purview of restrictions placed on the speech of public employees.

Motivating factor. Addressing the question of whether the professor’s protected speech was a substantial or motivating factor in the adverse employment actions, the court found that the actions identified by the professor, especially when considered collectively, were reasonably likely to deter other employees from engaging in protected speech.

The professor had also plausibly alleged facts that plausibly supported the inference that his speech at the math summit was a substantial or motivating factor in the adverse employment actions. The consecutive negative performance reviews along with the other adverse actions allegedly experienced by the professor indicated that the actions were motivated, at least in part, by his speech.

State’s interest. With regard to balancing the state’s interest in promoting the efficiency of its public services, the court found no indication that the professor’s speech impaired the college’s functioning. He distributed the handouts in a non-disruptive manner, waiting until a break in the math summit’s programming and, according to others present, distributed the handout in a professional matter.

Without a showing of an actual, material, and substantial disruption or reasonable predictions of disruption to support the administrators’ claim that the state’s interest outweighed the interests of the professor, the court concluded that he had pleaded a constitutional violation.

Clearly established right. As to whether the right at issue was clearly established at the time of the alleged misconduct, the court found it was well established that speech concerning what is taught at schools is a matter of public concern that falls squarely within the scholarship or teaching exception to speech made by public employees. Based on the court’s review of the full range of relevant precedents, it determined that the administrators were not entitled to qualified immunity at this stage of the proceedings.

Official capacity claim. The district court had dismissed the professor’s official capacity claim, maintaining it was barred by sovereign immunity. The court here explained that the professor’s ability to proceed with his official capacity claim turned on whether he sought prospective relief.

Expungement. Injunctive relief was sought by the professor in the form of expungement of all negative personnel files and a return of his two performance evaluations to an “excellent” rating. The district court held that such an injunction would be retroactive in nature. The appellate court disagreed.

“Ninth Circuit case law establishes that expungement of records constitutes prospective relief and so is not barred by sovereign immunity,” said the court. Although the negative evaluations and letters of reprimand arose from the administrators’ alleged past constitutional violations, relief may still be sought for actions related to a past violation so long as it does not amount to relief solely for the past violation, explained the court.

In this instance, the alleged violation—First Amendment retaliation—was ongoing insofar as the retaliatory records continued to exist in the professor’s personnel file. Because expungement would constitute prospective relief from this ongoing violation, the professor’s First Amendment official capacity claim was not barred by the Eleventh Amendment, concluded the court.

Declaratory, non-expungement relief. The professor also sought prospective relief in the form of an order enjoining the administrators to end their practice of taking adverse employment actions against faculty who speak on matters of public concern and a declaratory judgment that the adverse employment actions taken against the professor were an unconstitutional abridgment of the freedom of speech.

Here, the appellate court determined that that the district court had erred in holding that the professor could not maintain an official capacity First Amendment claim for declaratory relief alone.

Due process, equal protection claims. Finally, the court addressed the professor’s due process and equal protection claims. The court held that the professor did not identify an interest that could form the basis of a procedural due process claim and that his equal protection claim failed because he did not allege that he belonged to a discrete class. Nonetheless, the district court abused its discretion in denying the professor leave to amend these claims without explanation. Accordingly, the court reversed and remanded so that the professor may have the opportunity again to seek leave to amend those claims.

The case is No. 23-2545.

Judge: Berzon, M.

Attorneys: Daniel Ortner (Foundation for Individual Rights and Expression) for Lars Jensen. Kiah D. Beverly-Graham (Snell & Wilmer) for Natalie Brown.

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