From Gruber v. Tenn. Tech. Bd. of Trustees, decided May 16 by Sixth Circuit Judges Richard Griffin, Helene White, and Eric Murphy, but just posted on Westlaw; for criticism of the lower court decision, which the panel upheld, see this post by our own Keith Whittington:
Dr. Julia Gruber and Andrew Smith … are professors at Tennessee Technological University (TTU). They … [sued Dr. Lori] Bruce, who is TTU's provost and vice president for academic affairs, … alleg[ing] claims of First Amendment retaliation … based on discipline that Bruce imposed on Gruber and Smith after they distributed flyers on campus. The flyers included a photograph of another professor, Dr. Andrew Donadio, and stated that (1) Donadio is a racist who was helping start a chapter of Turning Point USA at TTU, (2) Turning Point USA is a national hate group that allows racist students to unite to harass, threaten, intimidate, and terrorize minorities and other groups, and (3) Donadio and Turning Point USA are not welcome at TTU….
To establish a First Amendment retaliation claim, a plaintiff must show that she engaged in private, constitutionally protected speech or conduct, the defendant took an adverse action against her that would deter a person of ordinary firmness from continuing to engage in that conduct, and the adverse action was motivated at least in part by the protected conduct.
When deciding whether the plaintiff engaged in protected activity, we first determine whether the action constitutes speech on a matter of public concern, and if it does, we apply the "Pickering balancing test" to determine whether the plaintiff's interest in commenting outweighs the defendant's interest as an employer in promoting the efficiency of the public services it performs through its employees. The balancing test considers the manner, time, and place of the expressive action, and the pertinent considerations include whether the action (1) impairs discipline by superiors or harmony among coworkers, (2) negatively affects close working relationships for which personal loyalty and confidence are necessary, (3) impedes performance of the speaker's duties or interferes with the employer's regular operations, and (4) undermines the employer's mission….
TTU does not dispute that the district court properly concluded that the plaintiffs' speech was a matter of public concern. Even so, as the district also properly concluded, the plaintiffs' distribution of the flyers was not protected speech because their speech interest was outweighed by TTU's interest in preventing a disruption to its pedagogical and collegial environment….
