Labor & Employment Law Daily Wrap Up, RETALIATION—9th Cir.: First Amendment claim of professor, rebuked after mocking university’s land acknowledgment, revived, (Jan 2, 2026)

By Kathleen Kapusta, J.D.

“Faculty at universities play a significant role in driving the development of ideas in our country; that important responsibility cannot be carried out without the protections that the First Amendment affords.”

A computer sciences professor at the University of Washington, who included in his class syllabus a parody of the university’s statement on Native Americans’ land entitlement, engaged in protected speech, not government speech, a divided Ninth Circuit panel held, finding further that the university failed to show his First Amendment interest was outweighed by its interest in avoiding disruption on campus. Accordingly, the court reversed summary judgment against his First Amendment retaliation claim. Dissenting, Judge Thomas disagreed with the majority’s conclusion that the professor’s speech interests outweighed the university’s interests (Reges v. Cauce, No. 24-3518 (9th Cir. Dec. 19, 2025)).

In 2015, the university adopted a “land acknowledgement” stating that certain university land was originally home to indigenous people who had historically resided there. According to the university’s Office of Minority Affairs & Diversity, the land acknowledgment was intended in part to recognize this “difficult, painful[,] and long history.”

Professor’s statement. In 2019, the school in which the professor taught recommended that instructors include the land acknowledgement in their class syllabi. The professor viewed the acknowledgement as a political statement that was part of a DEI agenda and was factually incorrect. Accordingly, he included in his syllabus to his introductory online computer science course a statement acknowledging “that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.”

Several students complained, including one who discovered the professor’s article on “why Women Don’t Code,” which she found to be triggering. Another student shared a screenshot of his statement on Reddit, where it received significant criticism. The student DEI committee called for the statement to be removed and replaced with a statement acknowledging the right of indigenous people to the land taken from them through years of colonialism. The school director also asked him to immediately remove the statement because it was creating a toxic environment.

When the professor refused, the director emailed his students to apologize for the offensive land acknowledge. The school also replaced the professor’s syllabus with a version excluding the statement and opened a second section of his course led by a different faculty member. Around 170 of the professor’s 500 students transferred to the new section. The professor, in response, stated that he would distribute a written syllabus in the spring containing the statement.

Disciplinary process. The director then informed the professor that she was initiating a disciplinary process against him. A faculty committee ultimately found he likely violated university policy and caused “significant disruption,” which included one student who took a leave of absence and another who supposedly dropped out. The director, however, declined to impose sanctions because of the possibility his “actions were intended to generate discussion.” She also warned that including the statement in any syllabus in the future could lead to further discipline. Finally, she reinstated his merit pay raise that had been held in abeyance during the investigation.

Lower court proceedings. During the investigation, the professor sued the director and other individuals alleging among other things First Amendment retaliation and viewpoint discrimination. The district court granted summary judgment against his retaliation claim.

Protected speech. On appeal, the university argued that the professor did not engage in protected speech because it requires professors to distribute syllabi and his statement did not relate to his own scholarship or teaching. Thus, it asserted, the statement was “government speech” it could rightfully control. In support, the university cited the Supreme Court’s 2006 Garcetti v. Ceballos decision holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” But Garcetti, said the court, reserved the question whether its holding “would apply in the same manner to a case involving speech related to scholarship or teaching.”

Further, the appeals court noted, it its 2014 Demers v. Austin decision, it held that “Garcetti does not apply to ‘speech related to scholarship or teaching’” and that “such speech is governed by Pickering.” And here, the court continued, the professor’s “parody land acknowledgment falls within Demers’s carve-out for speech related to scholarship or teaching.” His statement addressed what was taught at school as the school suggested that professors include a land acknowledgment in their syllabi to make their teaching as effective as possible. Further, the professor was commenting on a issue faculty was actively debating and was also criticizing school policy. Thus, said the court, he “operated outside of Garcetti’s purview.”

The court rejected the university’s contention the syllabus statement was not protected because it was in a document professors were required to distribute. Ninth Circuit case law, said the court, does not restrict Demers to speech made in independently published publications. Nor was the court persuaded by the university’s argument that the statement should be treated as government speech because the university sought to convey its own message in course syllabi and could take legitimate and appropriate steps to ensure its message was neither garbled or distorted by its messengers. The record here, said the court, showed the professor was speaking in his own capacity as a professor and not on behalf of his employer. Thus, he engaged in protected speech, not government speech.

Pickering balancing. The court next found that the professor unquestionably spoke on a matter of public concern. His statement “waded into a significant public debate about land acknowledgments and the political environment that favors them,” and however misguided his speech may have been, it “was core political speech that merits the highest First Amendment protection.” Further, the university allowed him to post his statement on his office door and in his email signature, to discuss it with colleagues, and to give interviews about his views on land acknowledgements and the university’s reaction.

Moreover, said the court, the context in which he offered his mock land acknowledgment—the public university setting—underscored that he spoke on a matter of public concern and the high value of his speech under the First Amendment. As to the university’s contention he had only a de minimis First Amendment interest because he remained free to express his views on land acknowledgments through other channels, including by posting it on his door, the court pointed out that it is “basic First Amendment law that in the absence of a neutral restriction, like one based on time, place, or manner, the government may not escape First Amendment scrutiny by limiting a speaker to certain places or modes of expression.” Accordingly, the court found his speech had significant First Amendment value.

Legitimate interest. Turning to the university’s argument it had a legitimate administrative interest in suppressing the professor’s First Amendment rights, the court noted that “in the public university setting, student disagreement with a professor’s academic speech on an issue of public concern cannot alter the Pickering analysis in the government’s favor.” Student unrest, the court observed, is an inevitable byproduct of core First Amendment safeguards in the higher education context and cannot be the type of disruption that permits restricting or punishing a professor’s academic speech. Indeed, said the court, “If criticizing land acknowledgments creates disruption on campus and warrants investigation and reprimand, what other views would cause offense and be excluded next?” As a result, the court reasoned, “the negative reaction to the professor’s] land acknowledgment cannot justify retaliating against [him] for his academic speech.”

And while the university claimed it relied on more tangible forms of disruption, such as Native students dropping out or taking leaves of absence, the court found problems of proof as there was no concrete evidence supporting this. Nor was there any evidence the university faced or would face difficulties recruiting Native students or that the 170 students transferred to the new section of the computer science class because of the professor’s statement. Further, the court found the university’s assertions of disruption were significantly undermined by the fact that it permitted the professor to express the same views about land acknowledgments in other settings, such as on his office door, his email signature, and in interviews with the media. Thus, the court concluded, the university took action against the professor as a result of the views he expressed in his mock land acknowledgment. “That is viewpoint discrimination.”

Dissent. Judge Thomas, dissenting, argued that “Universities have a responsibility to protect their students. This University, like other universities in the American West, has a particular obligation to its Native students. The disruption [the professor’s] speech caused to Native students’ learning outweighed his own First Amendment interests.”

The case is No. 24-3518.

Judge: Bress, D.

Attorneys: Carl J. Marquardt (Law Offices of Carl J. Marquardt) for Stuart Reges. Katherine Kerrick (Orrick, Herrington & Sutcliffe) for Ana Mari Cauce, Magdalena Balazinska, Dan Grossman, and Nancy Allbritton.

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