Amid protest violence, University of Washington gets legal permission to punish parody

Biden-appointed judge "gave too much credence" to UW claim that parody "land acknowledgment" by instructor Stuart Reges disrupted campus, lawyer says, promising 9th Circuit appeal. University threatened to fire him if he does it again.

The University of Washington is no stranger to protests that turn violent, even when they have nothing to do with Israel.

Someone got shot outside an event featuring anti-feminist provocateur Milo Yiannopoulos in 2017, and a UW employee allegedly threatened a College Republicans leader for inviting him.

This week, alleged Antifa activists assaulted a conservative journalist and attendees leaving an event with Turning Point USA founder Charlie Kirk, who is both a "Zionist" and "white supremacist" in the eyes of Emerald City detractors.

So it must have come as a relief for the public university in Seattle when a federal court blessed one of its strategies for preventing tensions from boiling over: censorship, circumvention and investigation of faculty who mock its dogma.

U.S. District Judge John Chun, known for presiding over the Federal Trade Commission's antitrust lawsuit against Amazon, ruled for UW in a First Amendment retaliation and viewpoint discrimination lawsuit by award-winning computer science instructor Stuart Reges.

The President Biden appointee agreed with Reges that the "land acknowledgment" parody he put in a class syllabus "related to scholarship or teaching" and was thus governed by a Supreme Court precedent on the speech rights of public employees that came from a teacher fired for criticizing the district's spending priorities in the local newspaper.

Yet the taxpayer-funded institution did not violate the First Amendment by unilaterally removing the syllabus, reposting a sanitized version, putting Reges through a disciplinary investigation and creating a "shadow section" of his required course so students could avoid him, according to Chun's ruling granting summary judgment to UW.

The instructor indisputably caused a "significant disruption," and the Allen School of Computer Science and Engineering's "interests in mitigating disruption to ensure the efficiency" of its operations "outweighs" the interests of Reges, the judge said.

"If professors are terrified they’ll be kicked out of the classroom for the ‘wrong’ opinion, colleges will no longer be a vibrant place where important subjects are debated and discussed," Reges warned in a statement to The Seattle Times.

The gay instructor inflamed campus years earlier with an essay titled "Why Women Don't Code" related to the controversy over fired Google engineer James Damore, which earned Reges what he called a "highly unusual one-year probationary appointment."

When his department encouraged faculty to acknowledge UW occupies indigenous land in their syllabi, Reges instead invoked political philosopher John Locke's "labor theory of property" to claim the Coast Salish people "can claim historical ownership of almost none" of UW's land because they didn't develop it.

He refused to remove the statement after Allen School Director Magdalena Balazinska told him it was "offensive" and created a "toxic environment." 

Student complaints piled up, a DEI official got involved and the teaching assistants' union claimed Reges violated a nondiscrimination provision in the collective bargaining agreement, according to Chun's summary. A third of his students left for the shadow section.

The instructor testified in court he "intended to make fun of land acknowledgments ... knew people would be upset" and admitted “I was causing trouble on purpose," the judge emphasized, noting Reges put the statement on his exterior office door, on "the bottom of his emails" and discussed it with colleagues "with no limitation by UW."

Balazinska and Vice Director Dan Grossman told Reges he'd face investigation if he kept putting the statement in his syllabi, as the instructor pledged to a diversity listserv a month earlier, to no avail. 

Reges sued two days after the investigation started, which paused it for a month. It concluded in July 2023, finding Reges "created an immediate and significant disruption to the University teaching environment" but issuing no sanction and releasing two years of withheld merit pay.

College of Engineering Nancy Allbritton told Reges she would not "fully discount your assertion that your actions were intended to generate discussion, rather than merely to denigrate members of the community and cause disruption to garner attention for yourself." 

But she warned UW would "proceed with next steps in accordance with the Faculty Code" – which include termination – if Reges kept intentionally causing "deliberate offense" by deploying the statement "in a purely academic setting, such as on a syllabus or in connection with the teaching of computer science courses," and it "leads to further disruption."

Foundation for Individual Rights and Expression staff attorney Joshua Bleisch, who is representing Reges, told Just the News the civil liberties group would appeal Chun's ruling to the 9th U.S. Circuit Court of Appeals.

The judge "gave too much credence to the university’s claim that his statement disrupted the campus, especially when weighed against Reges’ core First Amendment rights," Bleisch wrote in an email. 

"It's important to hold accountable any university that aims to censor faculty under the guise of ensuring no feathers are ruffled," Bleisch said. "Colleges cannot ask faculty to wade into a controversy, then punish them for swimming against the current."

The judge rejected UW's argument that Reges wasn't speaking "as a citizen." He said it wrongly cited K-12 precedents, which are more favorable to governments, in claiming Reges infringed on UW's right to convey its own message – the recommended land acknowledgment – which was intended in part to increase "recruitment of Native students to the Allen School."

It didn't matter, however, because Chun dismissed the retaliation and viewpoint discrimination claims against all defendants as well as the "facial overbreadth" and "facial vagueness" challenges to UW's nondiscrimination policy, known as EO 31, against President Ana Mari Cauce specifically. 

Reges clearly interfered "with the regular operation of the enterprise" and caused disruption in multiple communities, the judge said, citing communications from Allen School Diversity Committee student members, students who weren't in his class – one of them a "native, queer, female-presenting individual" – and anonymous feedback.

An Allen School diversity recruiter asked Balazinska "[h]ow am I supposed to recruit students into an environment where their history is questioned and their rights are denied," while "multiple Native American students expressed feelings of being targeted" and one dropped out.

"While offense alone does not amount to a legitimate interest to justify limiting speech, mitigating interference with students’ studies and ability to learn can be such an interest," Chun wrote.

It's irrelevant that the union didn't follow the grievance process in the contract, Chun said, because its email was "like a demand letter, raising the specter of a grievance if prompt action were not taken."

The terms "inappropriate" and "unacceptable" in EO 31 are tied to "the goal" of "promoting an environment that is free of discrimination, harassment, and retaliation" – which are themselves defined by "applicable federal or state laws and regulations" – and do not give administrators "unfettered discretion" over speech, the judge wrote.

As evidence, he noted it requires harassment to be "sufficiently severe, persistent, or pervasive" that it can "reasonably be expected to create an intimidating, hostile, or offensive" environment or "unreasonably interfer[e]" with work or academic performance. 

Chun briefly mentioned the Supreme Court precedent Davis v. Monroe, which concerns harassment in educational settings, without noting its standard is much higher: "so severe, pervasive, and objectively offensive" – three required prongs – that harassment "effectively denie[s]," not interferes with, "equal access to an institution's resources and opportunities."