from Gruber v. Tennessee Institute of Technology. BD. Number of trusteesdecided on May 16 by Sixth Circuit Judges Richard Griffin, Helene White and Eric Murphy, but just posted on Westlaw; for a critique of the lower court decision upheld by the panel, see our own Keith Whittington’s This article:
Dr. Julia Gruber and Andrew Smith are professors at Tennessee Technological University (TTU). them… [sued Dr. Lori] Bruce is provost and vice president for academic affairs at TTU,…claims[ing] The allegation of First Amendment retaliation … was based on the discipline Bruce imposed on Gruber and Smith after they distributed fliers on campus. The flyer included a photo of another professor, Dr. Andrew Donadio, and stated that (1) Donadio was a racist who helped found the Turning Point USA chapter at TTU, (2 ) Turning Point USA is a national hate organization that allows racist students to band together to harass, threaten, intimidate and intimidate minorities and other groups, and (3) TTU does not welcome Donadio and Turning Point USA….
To establish a First Amendment retaliation claim, a plaintiff must prove that she engaged in constitutionally protected private speech or conduct, that the defendant took adverse action against her in a manner that would deter an ordinary determined person from continuing to engage in that conduct, and that the adverse action was motivated, at least in part, by caused by protected conduct.
In determining whether a plaintiff engaged in protected activity, we first determine whether the conduct constitutes speech on a matter of public concern, and if so, we apply “Pickering “Balancing test” to determine whether the claimant’s interest in making the comments outweighs the defendant’s interest as an employer in improving the efficiency of the public service through its employees. The balancing test considers the manner, time and place in which the conduct was expressed, as well as the manner, time and place in which the conduct was expressed. Relevant considerations Factors include whether the conduct (1) harms the discipline of a superior or harmony among coworkers, (2) negatively affects a close working relationship that requires personal loyalty and confidence, (3) prevents the speaker from performing his or her duties or interferes with the employer’s normal work .
The TTU does not deny that the district court correctly concluded that the plaintiff’s remarks were a matter of public concern. Even so, as the District correctly concluded, Plaintiffs’ conduct in distributing flyers was not protected by speech because TTU’s interest in preventing damage to its teaching and college environment outweighed their speech interests….
From the beginning, the “method” of the plaintiff’s speech reduced its expressive value but increased TTU’s operating interests. The plaintiff did not speak in class or through academics, and the professor’s “rights to academic freedom and free speech are of paramount importance.”
Nor is this a simple case of one professor raising race-related issues or expressing disagreement with a group’s ideology to another professor, perhaps one-on-one or in a more personal setting. Instead, the plaintiff posted flyers in the academic building when he learned students would be in class on campus, and posted another flyer the next day. These flyers have the potential to cause disruption, and they do so in a number of ways.
Specifically, the flyers referred to Donadio as a “racist college professor” and members of Turning Point USA as “racist students.” They said in bold text that the professor and the group’s “hate and hypocrisy are not welcome at Tennessee Tech.” The dissemination of “disrespectful, derogatory, insulting and rude” messages directed at colleagues and students – regardless of whether some of the allegations are factually based – to the entire university community will undoubtedly undermine TTU’s learning environment and academic mission.
First, a leaflet that openly attacks a colleague as a racist and threatens to put the colleague on a “list” of anonymous authors will certainly “damage…the harmony among colleagues.” {The plaintiffs protested that they had not interacted professionally with Donadio and therefore there was no harm to harmony. But even if professors don’t work closely together, they are still colleagues on the TTU faculty, and it’s not unreasonable for Bruce to conclude that accusations of racism on campus and overtly — even among colleagues who don’t work together — can Will cause disruption to University operations.
Perhaps more critically, by attacking students, these flyers threatened the core of TTU’s educational “mission” and undermined the plaintiffs’ ability to fulfill their teaching “duties.” The flyers suggested that, like Donadio, all students who were members of Turning Point USA were racist. These accusations harmed the education of these students.
For example, one member of Turning Point America was deemed a racist and missed school because of the incident. Additionally, the allegations impacted Plaintiff’s effectiveness in the classroom. Students in the club, or students considering joining the club, taking courses under Gruber and Smith may worry about potential treatment in the classroom because of their different political views. Therefore, this case is actually different from similar cases Pickeringa teacher was disciplined for writing a letter to a local newspaper criticizing the school district that was “in no way directed at anyone with whom he came in contact” [the teacher] As a teacher, he usually comes into contact with it in his daily work. interest.
To be sure, the flyers were collected quickly and affected only a handful of students and professors. But evidence of widespread damage was unnecessary: Bruce had reason to believe that had the flyers remained posted, they might have caused even greater damage.
Finally, the “venue” of the plaintiffs’ remarks further harmed their interests. Even if they were not giving this speech on official business, they were not giving this speech outside of campus as private citizens. Rather than airing their claims on a personal Facebook page or in a local newspaper, they chose to use TTU’s own property as a billboard for their speech. But public employers are more interested in regulating speech “in their offices” (or on campus) than they are in regulating speech outside the public employer’s property. Indeed, the conclusion that the First Amendment protects plaintiffs’ speech means that TTU remains powerless to remove the fliers from its property. Therefore, there is no need to worry in this case that TTU is trying to “exploit” its employment relationship with the plaintiffs to regulate their speech “outside the scope of university functions.”
all in all, Pickering The balancing test weighs whether the plaintiff’s speech is protected. These flyers, which attack a professor and student organization and say they are not welcome on campus, constitute a legitimate threat to disrupt TTU’s academic mission and are the type of speech that learning institutions strive to prevent. under Pickering The balancing test showed that TTU’s interest in preventing potential damage to its teaching and university environment outweighed the plaintiff’s interest in distributing leaflets. Therefore, the plaintiffs’ speech was unprotected, precluding their First Amendment retaliation claims.
