After six years of litigation, I am pleased to report that I have finally won the right to present my case against UNC-Wilmington to a jury of my peers here in North Carolina. My case began in September of 2006 when I was denied promotion to full professor. At the time, I had multiple teaching awards and outstanding reviews from students for my teaching. I had published more peer-reviewed articles than the vast majority of my colleagues. In fact, my department had never denied promotion to full professor to anyone with as many peer reviewed publications as I had accumulated. My service activity could only be minimized by suggesting that it did not “count” due to the views it advanced. It was voluminous but unpopular with my peers.
The promotion process was replete with procedural irregularities and with direct criticism of my columns and my beliefs. I immediately tried to appeal the decision internally but was denied a chance to do so. With no other recourse, I filed suit because it is unconstitutional for public officials to retaliate against an employee for expressing his views on critical social and political topics. It is especially hypocritical when such retaliation occurs at a public university that holds itself out as a free and open marketplace of ideas.
The journey has been long and there have been dark moments. In March of 2010, my case was thrown out when the district court ruled that the First Amendment did not protect my columns. Instead the federal court ruled that because I mentioned them on my promotion application they were a part of my official duties as a public employee. That ruling was based on an interpretation of a Supreme Court case, Garcetti v. Ceballos (2006), which dealt with employee speech. That controversial case ruled that public employee speech – even if on matters of public concern – could be restricted if it was a part of the employee’s “official duties.”
We appealed and the Fourth Circuit disagreed with the district court’s ruling. In a unanimous opinion, they ruled that my columns qualified as protected, private speech. Regarding that central issue, the Fourth Circuit said the following:
“Put simply, Adams' speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields. For all the reasons discussed above, that thin thread is insufficient to render Adams' speech ‘pursuant to [his] official duties’ … Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment.”
The Fourth Circuit also ruled that the UNCW officials could be held personally liable if I ultimately won the case. In other words, all defendants were stripped of their qualified immunity. It was a resounding victory for academic freedom.
When the case was remanded, the Fourth Circuit asked the district court to determine whether there was evidence that I lost that promotion because of my columns and the views expressed in them. In a decision released last month, the district court answered that question with a resounding “yes.” In another victory for free speech, the court reasoned as follows:
"Here, plaintiff has brought forth evidence from which a reasonable jury could find that his speech was a substantial or motivating factor in the decision to deny [promotion] to plaintiff. The court need not detail the evidence, but plaintiff has produced evidence which . . . shows the following: (1) his internal evaluations declined after he began the speech at issue; (2) faculty attempted to stop or alter his speech; (3) the denial of his application to full professor was in temporal proximity to Adams’ columns openly criticizing the University on certain political and social issues; (4) the written comments of the faculty on the [promotion] decision committee show hostility toward plaintiff’s speech; and, (5) a faculty member who had accused plaintiff of harassment was allowed to participate and vote on the plaintiff’s application for promotion."
I am eager for my day in court and I will keep my readers apprised of any new developments. In the meantime, I hope that many conservatives in academia will reconsider their decision to remain passive in the campus culture wars. Many believe they cannot win. That is certainly true if they refuse to fight.