College officials can be personally liable for firing professor in free speech case, judge rules

Supreme Court abhors compelled speech because it "diminishes autonomy, stymies the search for truth, and extinguishes the debates necessary for the continuous improvement of our Republic," judge says.

Published: March 15, 2022 3:54pm

Updated: March 16, 2022 11:46pm

Public university officials can be held personally liable for dumping an adjunct professor based on his anonymous criticism of the concept of microaggressions, a federal court has concluded.

University of North Texas officials should have known that math professor Nathaniel Hiers' speech "touched on a matter of public concern and that discontinuing his employment because of his speech violated the First Amendment," U.S. District Judge Sean Jordan wrote in a 69-page memorandum and order Friday.

He refused to grant qualified immunity to UNT officials who allegedly retaliated against Hiers in 2019 for writing "Don't leave garbage lying around" on a faculty lounge chalkboard above a stack of flyers, not sanctioned by UNT, explaining microaggressions.

According to Jordan, "all parties agree" Hiers' message "was intended as a joke," yet math department chair Ralf Schmidt demanded the "coward ... immediately" come forward. While Hiers copped to the message, he refused to apologize or participate in "supplemental diversity training" on top of the mandatory diversity training he was scheduled to take.

Less than a week later, Schmidt rescinded Hiers' spring contract, claiming the chalkboard message was at least upsetting and "can even be perceived as threatening." According to Jordan, the professor has "plausibly alleged that the university officials violated his right to freedom of speech."

Student, faculty and community litigants have targeted qualified immunity for university and K-12 officials, from volleyball coaches to school board members, in several speech-related lawsuits in recent years.

Officials with authority over student club funding have faced particular ire from judges. The 8th U.S. Circuit Court of Appeals twice stripped immunity from University of Iowa officials last year, as did trial judges in cases against Michigan's Wayne State University and California State University.

UNT's legal setback is the second in Texas in less than two months favoring an adjunct professor whose contract wasn't renewed.

Collin College paid Lora Burnett $70,000 to drop her First Amendment lawsuit, which alleged her non-renewal was retaliation for insulting then-Vice President Mike Pence and disagreeing with Collin President Neil Matkin about the severity of COVID-19 on Twitter. 

It's also the second speech-related controversy at UNT just this month. Protesters successfully shut down a Young Conservatives of Texas (YCT) event titled "Criminalize Child Transitions" with Texas House candidate Jeff Younger and allegedly chased YCT leader Kelly Neidert as she fled with police.

Rather than pledging sanctions against students or employees who disrupted the event, UNT President Neal Smatresk — a defendant in Hiers' lawsuit — apologized for the "intolerant views of a handful of campus members."

A week later, Smatresk told protesters, "I abhor what YCT has said and done," promising "actions within the constraints of law and the constraints of [university] policy," North Texas Daily reported. 

Smatresk "implied that we are under investigation, which no one has told us," Neidert tweeted Sunday. She also noted the Foundation for Individual Rights in Education (FIRE) had sent Smatresk a legal warning letter in 2011 when he led the University of Nevada Las Vegas, deeming unconstitutional its diversity policy's ban on "disrespect."

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FIRE celebrated Jordan's order in the Hiers lawsuit in a blog post, noting the judge cited its staff's writing on "the proposition that debate over microaggressions is a matter of public concern." The civil liberties group launched a legal defense fund for faculty last spring.

UNT did not respond to Just the News queries for its response to Jordan's order, whether it is investigating possible student or employee involvement in the shutdown of YCT's event, and whether YCT itself is under investigation.

While throwing out some of Hiers' claims, the judge denied the university's motion to dismiss, finding that his claims for reinstatement to the math department count as "prospective, equitable relief" and are not barred by sovereign immunity.

UNT explicitly admitted it was dumping Hiers for his speech, and didn't argue that its "interest in promoting the efficiency of the public services it provides" outweighed Hiers' interest in his speech, Jordan said.

The only remaining question is whether Hiers was speaking on a matter of public concern, and the judge said he was. The professor's critique of the flyers "transcended personal interest" and had nothing to do with "a personal complaint or grievance about his employment."

Hiers was commenting on "a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education," Jordan wrote.

"Hiers's speech reflected his protest of a topic (microaggressions) born from the present-day political correctness movement that has become an issue of contentious cultural debate," the judge said. It's irrelevant that Hiers made his point with a joke, a "time-tested" form of political and social commentary.

Jordan also swatted down UNT's "apples to oranges" argument that it can punish "uncivil" speech under legal precedents on profanity and sexually explicit discussions not germane to the classroom. Hiers is not required to demonstrate there was "widespread debate" at UNT on microaggressions, either.

The professor plausibly alleged that officials conditioned his employment "on his willingness to surrender his protected right to freedom of speech" through self-censorship, compelled expression of "honest regret" and attending "additional diversity training," Jordan said.

"Compelled speech is deeply suspect in the Supreme Court's jurisprudence" because it "diminishes autonomy, stymies the search for truth, and extinguishes the debates necessary for the continuous improvement of our Republic," the judge wrote.

Schmidt's email to Hiers doesn't clarify whether the chair was demanding an apology for the style or substance of Hiers' chalkboard message, but the reference to additional diversity training makes viewpoint discrimination plausible, according to Jordan. And Schmidt's language toward Hiers in demanding an apology — calling him a "coward" and labeling his speech "stupid" — suggest compulsion.

The Alliance Defending Freedom, which is representing Hiers in court, cheered the ruling. "Public universities can't fire professors just because they don't endorse every message someone communicates in the faculty lounge," senior counsel Tyson Langhofer said. 

Langhofer told Just the News his group didn't mention the denial of qualified immunity "because we try to avoid legal jargon that may be confusing to the general public," not because it doesn't expect to recover damages. The denial "is a very important piece of the decision."

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