Fifth Circuit Revives Outspoken Professor’s Retaliation Case: Anti-Tenure Speech is a Matter of Public Concern

by Saul Ewing Arnstein & Lehr LLP

Plaintiff James Wetherbe, a professor in Texas Tech University’s business school, is not your typical professor. While universities are no stranger to lawsuits from unhappy professors passed over for tenure, few see lawsuits from professors who have refused tenure and profess that tenure is anathema to academia. Yet, Wetherbe has twice sued his superiors at Texas Tech, and recently, Texas Tech itself, for unfair treatment he alleges he faced as a result of his anti-tenure stance.

In 2012, Wetherbe filed his first First Amendment suit against the University provost and University president, alleging that he sustained adverse employment actions due to his anti-tenure views. A self-proclaimed “outspoken critic of tenure at universities for over 20 years,” Wetherbe had previously refused tenure at the University. He alleged that the defendants violated his First Amendment rights by refusing to consider him for several prestigious positions, simply because he refused tenure, held anti-tenure views, made public speeches against tenure, and was critical of tenure during interviews for those positions. Though the United States District Court for the Northern District of Texas denied the defendants’ motion to dismiss, the United States Court of Appeals for the Fifth Circuit reversed, holding that the First Amendment did not protect Wetherbe’s rejection of tenure, personal views, or comments during interviews. It held that these types of speech were not matters of public concern. Moreover, it found that Wetherbe had failed to alleged the defendants knew about his public speeches against tenure at the time the employment decisions were made. See Wetherbe v. Smith, 593 F. App’x 323, 327–29 (5th Cir. 2014).

In 2015, Wetherbe sued again, this time, naming the current and former deans of the business school and the University as defendants. In his second suit, the protected speech for which Wetherbe alleged defendants retaliated against him was significantly more “public” in nature. Wehterbe claimed that the University took adverse employment action because of articles he and others wrote that the Financial Times and Harvard Business Review published. While Wetherbe personally authored some of the anti-tenure articles, other authors wrote articles discussing his first lawsuit and views on tenure. Therefore, the speech at issue in his second lawsuit was distinctly different from the first. Even to a layperson, it appeared to be more outward facing and part of public discourse. Despite these key differences, however, the district court granted the defendants’ motion to dismiss. It held that tenure was, generally, not a matter of public concern.

Wetherbe appealed to the Fifth Circuit, which reversed in part, and revived Wetherbe’s claims against one dean for prospective injunctive relief, and against the other in his individual capacity. The court dismissed all claims against the University on sovereign immunity grounds, a point Wetherbe conceded during oral argument. The court went on to hold that Wetherbe’s anti-tenure speech is, in fact, a matter of public concern. Examining the content, context, and form of Wetherbe’s anti-tenure speech, the court held that, in this particular case, the speech was a matter of public concern because the articles focused on the systematic impact of tenure. Likewise, the context and form of the speech indicated it was a matter of public concern, because the media coverage noted in Wetherbe’s complaint, along with multiple media outlet publications, showed Wetherbe’s speech “was made against the backdrop of an ongoing public conversation about tenure.”

This case has broad implications, as it may impact what courts consider, and how courts define, First-Amendment protected speech. It emphasizes that speech about a particular topic cannot be placed in a single box labeled “protected” or “not protected.” Instead, public employers, both within and beyond academia, must evaluate the speech in each new instance, considering whether its classification may have changed and whether that change entitles it to First Amendment protection.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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