## Facts

- David K. Demers, a tenured associate professor at Washington State University (WSU), distributed a pamphlet titled “The 7–Step Plan” proposing reorganization and governance changes within his academic unit.
- Demers also circulated draft materials from an in-progress book, “The Ivory Tower of Babel,” criticizing the administration of the academic unit and WSU.
- Demers alleged WSU administrators retaliated for his speech through adverse actions affecting annual evaluations, committee assignments, and his standing in the department.
- Demers sued several WSU administrators in their individual capacities under 42 U.S.C. § 1983 for First Amendment retaliation.
- The district court granted summary judgment for defendants, holding the pamphlet and draft book were unprotected because they were distributed pursuant to Demers’s employment duties under Garcetti, and alternatively that the pamphlet did not address a matter of public concern.

## Issues

1. Whether Garcetti categorically bars First Amendment protection for a public university professor’s teaching and academic writing when undertaken pursuant to official duties.
2. Whether “The 7–Step Plan” addressed a matter of public concern for purposes of the Pickering framework.
3. Whether the record supported causation that the draft book materials prompted retaliatory action.
4. Whether defendants were entitled to qualified immunity from damages.

## Decision

- The Ninth Circuit affirmed in part, reversed in part, and remanded.
- The court held Garcetti does not apply to speech related to scholarship or teaching by public university faculty; such speech is analyzed under Pickering.
- The court affirmed that Demers prepared and circulated “The 7–Step Plan” pursuant to his official duties, but reversed the ruling that the pamphlet was not on a matter of public concern; it could qualify for protection under Pickering.
- The court affirmed summary judgment on claims tied to the draft book materials due to insufficient evidence that the book caused the alleged retaliation.
- The court held defendants were entitled to qualified immunity from damages because the law was not clearly established after Garcetti regarding academic speech.

## Legal Principles

- Garcetti’s “official duties” bar does not govern public university faculty speech related to scholarship or teaching.
- Academic teaching and writing by publicly employed professors are evaluated under Pickering: the speech must involve a matter of public concern and, if so, is subject to balancing against the institution’s efficiency interests.
- Proposals and commentary concerning the governance and direction of a public academic program can constitute speech on a matter of public concern rather than a purely internal personnel dispute.
- In First Amendment retaliation claims, the plaintiff must produce evidence that the protected speech was a motivating factor for adverse action; lack of record evidence of causation supports summary judgment.
- Qualified immunity bars damages where the asserted constitutional rule was not clearly established at the time of defendants’ conduct.

## Conclusion

The Ninth Circuit recognized an academic-speech limitation on Garcetti, requiring Pickering analysis for professors’ teaching and scholarly writing, held Demers’s reorganization pamphlet involved a matter of public concern warranting further proceedings, rejected retaliation claims tied to the draft book for lack of causation evidence, and granted defendants qualified immunity from damages.


Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013)