WaState prof gets win in land acknowledgement case from 9th Circuit
Alan Riquelmy
(CN) — A University of Washington professor claimed victory Friday after a Ninth Circuit panel ruled in his favor in a free speech case.
Professor Stuart Reges appealed his case after a lower court ruled that a land acknowledgment statement, he included in his syllabus was unprotected speech because it disrupted the university. In a 2–1 decision, a Ninth Circuit panel disagreed, reversed the ruling, and remanded the case for further proceedings.
The dispute centers on a statement Reges, a computer science professor, included in his winter 2022 syllabus.
The university had adopted a land acknowledgment recognizing that it sits on Coast Salish tribal land and welcoming Indigenous people to campus.
According to the state, Reges responded by inserting a parody of that acknowledgment into his syllabus.
“I acknowledge that by the labor theory of property, the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington,” Reges stated, a reference to John Locke’s theory that property rights come from labor.
The university created a faculty committee to investigate potential policy violations. Months later, it found that the statement had caused significant disruption, though it imposed no sanctions. However, it said that if he included the statement in future syllabi, and it caused disruption, the university would conclude the offense and disruption was his intention and “proceed with next steps.”
“The First Amendment protects the free exchange of ideas,” said U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, in the ruling. He added: “When we place limits on what professors may say or impose punishment for the views they express, we destock the marketplace of ideas and imperil future generations who must be exposed to a range of ideas and readied for the disharmony of a democratic society.”
Reges argued the university retaliated against him, a claim that required showing he engaged in protected speech and that it was the primary reason for an adverse employment action.
Instead of asking Reges to remove the statement, the university launched a prolonged investigation, reprimanded him and threatened further discipline, Judge Daniel Bress wrote.
The school also contended that Reges’ statement amounted to “government speech,” which would be subject to a different legal standard. The panel disagreed.
“The record shows that Reges was speaking in his own capacity as a professor, and not on behalf of his employer,” Bress said, adding: “In fact, the record reflects that students attributed the speech to Reges, as they argued that Reges’ speech warranted condemnation because it conflicted with [the university’s] views and policies on inclusivity.”
The university did not dispute the lower court’s finding that Reges spoke on a matter of public concern. Instead, it argued its interest in preventing campus disruption outweighed his First Amendment rights.
The school also noted it allowed Reges to post the land acknowledgment on his office door and in his email signature — an argument Bress said conflicted with the First Amendment, since restricting speech to certain locations does not shield it from constitutional scrutiny.
“Some types of government employers depend on command and control,” Bress said. “But under the First Amendment, a public university’s oversight of academic speech lacks any comparable justification.”
In fact, it was those alternate methods of displaying the statement the university allowed which hurt its argument about disruption. Also, Reges included the land acknowledgement in syllabi after winter 2022 without the same level of pushback, Bress said.
U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, concurred in part and dissented in part.
He agreed with a legal test applying to Reges’ retaliation and viewpoint discrimination claims. However, he disagreed with the test result.
“Universities have a responsibility to protect their students,” Thomas said. “This university, like other universities in the American West, has a particular obligation to its Native students.”
Attorney Gabe Walters, a Foundation for Individual Rights and Expression attorney who represents Reges, praised the ruling in a statement.
“Today’s opinion is a resounding victory for Professor Stuart Reges and the First Amendment rights of public university faculty,” Walters said. “The Ninth Circuit agreed with what FIRE has said from the beginning: Universities can’t force professors to parrot an institution’s preferred political views under pain of punishment.”
Victor Balta, a university spokesperson, said in a statement the school was evaluating the 2-to-1 decision and considering its next steps.
“We maintain that we have a responsibility to protect our students and that the UW acted appropriately,” Balta said. “Prof. Reges has retained his faculty position and has continued teaching throughout this process.”