University Adjunct Prof Fired for Labeling Flyers About “Microaggressions” as “Garbage”
From Hiers v. Board of Regents, released today by Judge Sean Jordan (N.D. Tex.):
Writing for himself and Justice Brandeis nearly a century ago, Justice Oliver Wendell Holmes extolled what he viewed as a foundational tenet of freedom of expression in our country: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” Since that time, the Supreme Court has consistently recognized that the Founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
This case implicates these bedrock constitutional principles protecting freedom of thought and expression. The setting is a public university, the University of North Texas (“UNT”), and the speaker is [an untenured] mathematics [adjunct] professor at that university, and a public employee, Nathaniel Hiers. Amidst a slew of constitutional claims asserted by Hiers following his departure from UNT, a single question is paramount: What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer? …
On November 26, 2019—the same day that Hiers [a nontenured, adjunct professor,] stated his desire to teach a second class in the spring—the incident forming the basis of this lawsuit occurred. An anonymous person had placed in the mathematics faculty lounge a stack of flyers, each of which warned faculty against committing “microaggressions” on college campuses. The flyer defines microaggressions and provides examples of statements characterized as microaggressions that it suggests faculty should avoid using in the workplace. For instance, statements such as “I believe the most qualified person should get the job” and “America is the land of opportunity” are cited as microaggressions promoting the “[m]yth of [m]eritocracy.”
Upon seeing these flyers, Hiers—in what all parties agree was intended as a joke—picked up a stick of chalk, drew an arrow pointing to one of the flyers, and wrote the following message on a nearby chalkboard: “Please don’t leave garbage lying around.” …
Hiers’ contract was not renewed as a result of this; his department chair, Ralf Schmidt, explained the decision this way:
Dear Nathaniel,
My decision not to continue your employment in the spring semester was based on your actions in the grad lounge on 11/26, and your subsequent response.
In our conversation you characterized the flyers that upset you as political statements. I looked at them in detail, and they are anything but. Every example of a microaggression listed there makes very much sense, and I am disappointed about your general dismissal of these issues and that you failed to put yourself in the shoes of people who are affected by such comments.
I also think that leaving behind a chalkboard message like you did is not a benign thing to do. Think about how people who see this might react. They don’t know who wrote this; it might be a faculty member, grad student or anyone else. The implicit message is, “Don’t you dare bringing [sic] up nonsense like microaggressions, or else.” This is upsetting, and can even be perceived as threatening.
Finally, I was disappointed at your response during our conversation. Everyone makes mistakes, and I’m all for forgiveness if actions are followed by honest regret. But you very much defended your actions, and stated clearly that you are not interested in any kind of diversity training.
In my opinion, your actions and response are not compatible with the values of this department. So with regret I see no other choice than to not renew your employment. Please know it gives me no pleasure; in fact, we were counting on you, and it causes considerable difficulties to replace you as a teacher….
The court concluded that Hiers’ First Amendment retaliation claim could go forward:
Public employees do not surrender all First Amendment rights because of their employment…. [W]hen citizens enter government service, they necessarily accept certain limits on their freedom of speech…. But if employee expression [that is not part of the employee’s official duties] touches on a matter of public concern, the First Amendment prohibits the government from taking an adverse employment action against the employee for such expression without sufficient justification.
It is undisputed that Hiers suffered an adverse employment decision—termination—and his speech motivated the university officials’ termination decision. That leaves two questions: First, was Hiers speaking on a matter of public concern? And if so, was Hiers’s interest in doing so greater than the university’s interest in promoting the efficiency of the public services it provides through its employees? The university officials do not address the second question, so the Court will focus its analysis on whether Hiers’s speech touched on a matter of public concern….
Personal complaints and grievances about conditions of employment are not matters of public concern. Rather, speech addresses a matter of public concern when it relates “to any matter of political, social, or other concer
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