Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
A split panel of the 4th U.S. Circuit Court of Appeals has ruled against a professor at N.C. State University. He had raised concerns about the NCSU education school's recent focus on social justice and diversity, equity, and inclusion efforts.
Plaintiff Stephen Porter sued the university in federal court in September 2021. He argued that his constitutionally protected statements prompted retaliation from NCSU.
"Appellant's Complaint alleges that he has been outspoken in recent years concerning the focus on 'so-called "social justice" affecting academia in general' and 'his concern that the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of "diversity," "equity," and "inclusion,"'"
wrote Judge Stephanie Thacker on Thursday for the 2-1 majority.
"In this vein, Appellant identifies three statements or communications he made between 2016 and 2018 which, in his view, are protected speech,"
Thacker wrote. "According to Appellant, he was eventually subject to adverse employment actions in retaliation for these three communications."
In spring 2016, Porter questioned adding an item about diversity to student course evaluations. He suggested "that the proposal had been made without proper research,"
according to the majority opinion. A 2017 report from NCSU's Office of Institutional Equity and Diversity labeled Porter a "bully."
Porter cited a second communication that took place in 2018. When an Inside Higher Ed article criticized a faculty search committee led by one of Porter's colleagues, he sent a link to the article in an email to all department faculty members. Porter wrote, "Did you all see this? ... This kind of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work, Alyssa!"
The third communication took place in September 2018. Porter published a post on his personal blog accusing the Association for the Study of Higher Education of becoming a "woke joke."
The post focused on topics for an upcoming ASHE conference. "According to Appellant, this research demonstrated that the focus of the conference had shifted from general, post-secondary research to social justice,"
"Appellant's post concluded with his commentary, 'I prefer conferences where 1) the attendees and presenters are smarter than me and 2) I constantly learn new things. That's why I stopped attending ASHE several years ago,'"
according to the 4th Circuit opinion.
In October 2018 Porter contends his supervisors started the process of removing him from his department's Higher Education Program Area. The department also excluded him from other opportunities, including a new Ph.D. program area.
Porter argued "he has been effectively siloed into a Program Area of Study that is drained of students and resources. According to Appellant, this has severely compromised his ability to perform critical job duties, such as advising Ph.D. students, leaving his future at NCSU in jeopardy," Thacker wrote.
A trial judge ruled against Porter. "The district court held Appellant 'failed to plausibly allege a First Amendment retaliation claim' because he failed to 'plausibly allege that he ha[d] suffered adverse action or that any allegedly protected speech was the "but for" cause of any alleged adverse employment action,'"
Thacker wrote. "In doing so, the district court assumed, but did not decide, that the three communications identified by Appellant were protected. Upon review, we have no trouble concluding that at least the survey question incident and the faculty hiring email were unprotected speech."
"As to the 'Woke Joke' blog post, even assuming, as the district court did, that it amounted to protected speech, Appellant fails to allege a sufficient causal connection to state a claim for retaliation,"
the 4th Circuit majority opinion stated.
"Appellant's complaint makes clear that he was removed from the HEPA because of his ongoing lack of collegiality - not because of the content of his blog post,"
Thacker and Judge James Wynn affirmed the trial court's decision to dismiss Porter's case. Judge Julius Richardson dissented.
"It is now well-settled that 'citizens do not surrender their First Amendment rights by accepting public employment,'"
Richardson wrote. "Today, when a state employer retaliates against its employee for speaking as a citizen on a matter of public concern, the First Amendment demands that the state justify its action."
"Stephen Porter, a professor at North Carolina State University, says that the University retaliated against him for his protected speech. My friends in the majority say otherwise,"
Richardson added. "They hold that much of Porter's speech was not protected at all, and that - for his speech that was protected - Porter has not drawn a plausible link to the adverse action that he suffered."
"My friends err at both steps,"
Richardson concluded. "Porter was indeed speaking as a citizen on a matter of public concern. And - based on his complaint's allegations - it is plausible that the University retaliated against him because of it. The University thus must put forth evidence to justify its action. But, at this early stage of litigation, the government has not made that showing. So we should allow Porter's suit to proceed."