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: