In Jensen v. Brown, published March 10, 2025, the 9th Circuit Court of Appeals reversed the dismissal of a 42 U.S.C. section 1983 lawsuit without leave to amend. The plaintiff is a mathematics professor at a state community college. The board of regents for the state college system adopted a policy that lowered the academic level of certain math classes. The plaintiff objected to this policy. The dean of sciences at the college facilitated a "math summit" to discuss the policy's implementation "with the community." During a question-and-answer session, the plaintiff attempted to comment on the policy. The dean cut him off. The plaintiff went to his office and created a handout that discussed his concerns with the policy. During a break in the summit's programming, he went room to room distributing the handout to the participants. The dean directed him to stop. She accused him of disobeying her and being a "bully," stated his conduct was "disruptive," and warned him that he had "made an error by defying her." A week later, she sent the plaintiff a letter of notice of reprimand, along with a proposed letter of reprimand accusing the plaintiff of "insubordination" at the event. An official letter of reprimand was then placed in the plaintiff's personnel file. The plaintiff then sent an e-mail to the college's faculty complaining about the policy. About a week later, the plaintiff, under pressure from the dean, resigned as chair and member of a tenure committee. The dean raised issues with the professor's syllabus policies. That dean and another dean rated the plaintiff unsatisfactory during two annual performance evaluations. The evaluations triggered a disciplinary termination hearing, although the plaintiff does not allege he was terminated or disciplined based on the hearing. The plaintiff sued various college and college system administrators alleging (1) 1st Amendment retaliation, (2) procedural due process violations, and (3) equal protection violations. The administrators moved to dismiss the complaint based on sovereign immunity and qualified immunity. The district court dismissed the claims without leave to amend.
The 9th Circuit ruled the district court erred in dismissing the plaintiff's personal capacity 1st amendment retaliation claim against the administrators. Applying the Pickering inquiry for a public employee's 1st Amendment retaliation claim, the court ruled the plaintiff's criticism of the changes in the mathematics curriculum addressed a matter of public concern. The scope of the handout distribution was instructive but not determinative of the public concern issue. Under 9th Circuit precedent, the Garcetti v. Ceballos rule that speech according to public duties is not protected by the 1st Amendment does not apply to teaching and academic writing. Because the plaintiff's speech was focused on the contents of the school's curriculum, it relates to scholarship and teaching and so does not come within the Garcetti rule. The plaintiff alleged facts that plausibly linked alleged retaliatory acts to his speech. Although the Pickering test balances the employee's right to speak against the state's interests as an employer, unless the facts alleged in the complaint decisively indicate that the state's interest outweighs the plaintiff, the Pickering balancing test is not amenable to resolution on a motion to dismiss, and is generally deferred at least to the summary judgment stage. Since the facts alleged do not show an “actual, material and substantial disruption” or “reasonable predictions of disruption” to support the
Administrators’ claim that the state’s interest outweighs the plaintiff's, this inquiry could not be resolved at the pleadings stage. Since at the time of the events, 9th Circuit authority put a reasonable official on notice that the plaintiff's speech involved an issue of general public interest, need not be aired to the general public, and did not fall outside 1st Amendment protection simply because it was made according to official duties, and the balancing test could not be resolved at the pleading stage, the question of whether the administrators violated clearly-established law also could not be resolved at that stage. The district court therefore erred in dismissing the claim based on qualified immunity. The official capacity 1st Amendment claim was not barred by sovereign immunity, because it sought prospective injunctive relief. Although the complaint failed to allege facts showing an interest protected by procedural due process, or an equal protection claim, the district court erred by denying leave to amend those claims without providing a reason for doing so.