Court: University of North Texas professor’s First Amendment retaliation lawsuit over firing for calling ‘microaggression’ flyers ‘garbage’ can…
The ruling is a setback for University of North Texas administrators who had asked the court to dismiss the lawsuit brought by former adjunct professor Nathaniel Hiers. (University of College / Shutterstock.com)
by Alex Morey
A First Amendment lawsuit filed by a former University of North Texas adjunct professor who was non-renewed in 2019 for criticizing microaggressions can continue, a federal district court judge held on Friday. Along with denying the universitys motion to dismiss Nathaniel Hiers First Amendment retaliation claims, the court held that attempting to force Hiers to apologize likely comprised unconstitutionally compelled speech. The court also denied qualified immunity to the UNT administrators involved in the alleged retaliation, concluding that any reasonable university official would have known that it was unconstitutional to discontinue [Hierss] employment because of his speech.
FIRE first covered the suit, sponsored by Alliance Defending Freedom, when it was filed back in April 2020. As we summarized the facts at the time:
The trouble started in November 2019, when someone anonymously left a stack of flyers in the [UNT] faculty lounge explaining the concept of microaggressions, which the flyers described as verbal and nonverbal behaviors that communicate negative, hostile, and derogatory messages to people rooted in their marginalized group membership. According to his complaint, Hiers believes that the concept of microaggressions hurts diversity and tolerance because it teaches people to see the worst in other people, promotes a culture of victimhood, and suppresses alternative viewpoints instead of encouraging growth and dialogue. Indeed, microaggression theory has been the subject of much public debate, including as the complaint notes in FIRE president Greg Lukianoff and NYU social psychologist Jon Haidts recent book, The Coddling of the American Mind.
So in response to the flyers he disagreed with, Hiers wrote a note on the chalkboard in the faculty lounge that read please dont leave garbage lying around, with an arrow pointing to [one of the] flyers.
According to [Hierss] complaint, professors regularly leave comments and jokes on the faculty lounge chalkboard, often anonymously. But this time, Ralf Schmidt, chair of the math department, sent an email to the entire department with a photo of the comment, stating, Would the person who did this please stop being a coward and see me in the chairs office immediately. Thank you.
Fridays decision by district court Judge Sean Jordan dismisses a number of Hiers claims, such as for breach of contract. However, he finds the professor plausibly alleged that the university officials violated his right to freedom of speech, as he spoke outside of his job duties as a private citizen on matters of public concern (citations omitted here, and in quotes below):
Hierss critique of the flyer on microaggressions transcended personal interest and touched on a topic that impacts citizens social and political lives. His speech did not address a personal complaint or grievance about his employment. The point of his speech was to convey a message about the concept of microaggressions, a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education.
The court notably cited FIRE President and CEO Greg Lukianoff, Executive Director Robert Shibley, and First Amendment scholar and FIRE Legal Fellow David L. Hudson, Jr. (see page 22) for the proposition that debate over microaggressions is a matter of public concern.
Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure.
The court also pushed back on UNTs assertion that Hierss language was uncivil or otherwise removed from the First Amendments protection, instead holding that Hiers expressed the kind of pure speech to which the First Amendment provides strong protection.
In sum, Hiers met the burden, at this stage of the litigation, for his First Amendment retaliation claims to continue:
Preserving the freedom to think as you will and to speak as you think; is both an inherent good, and an abiding goal of our democracy. The university officials allegedly flouted that core principle of the First Amendment when they discontinued Hierss employment because of his speech. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech.
The court was also persuaded that UNT may have violated Hierss right to be free from compelled speech when administrators allegedly asked him to apologize for his speech:
Taking these allegations as true and viewing them in the light most favorable to Hiers, it is plausible that the university officials unconstitutionally punished Hiers for refusing to affirm a view the concept of microaggressions with which he disagrees. Hiers has plausibly alleged that the university officials discontinued his employment that is, punished him because he did not express honest regret about his views and speech on microaggressions.
Nor was the judge moved by UNTs argument that it did not compel speech by Hiers because it did not require him to publicly apologize:
To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period.
Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure. FIRE will continue watching this case closely as it progresses.
See original here:
Court: University of North Texas professor's First Amendment retaliation lawsuit over firing for calling 'microaggression' flyers 'garbage' can...
- Here Is Why Harvard Argues That Trump's Funding Freeze Violates the First Amendment - Reason Magazine - April 25th, 2025 [April 25th, 2025]
- Thankfully, Larry David mocks Bill Maher First Amendment News 467 - FIRE | Foundation for Individual Rights and Expression - April 25th, 2025 [April 25th, 2025]
- No, Gov. Lombardo, nobody was being paid to exercise First Amendment rights - Reno Gazette Journal - April 25th, 2025 [April 25th, 2025]
- Letter from the Editor: The First Amendment shaped my time on the Hill - WKUHerald.com - April 25th, 2025 [April 25th, 2025]
- Analysis: Pro-Hamas speech is protected by the First Amendment - Free Speech Center - April 25th, 2025 [April 25th, 2025]
- Who Will Fight for the First Amendment? Protecting Free Expression at a Critical Time - - Center for Democracy and Technology - April 25th, 2025 [April 25th, 2025]
- What the Doxxing of Student Activists Means For the First Amendment - The Progressive - April 25th, 2025 [April 25th, 2025]
- Does Gov. Landrys bid to restrict attorney advertising violate the First Amendment? - Baton Rouge Business Report - April 25th, 2025 [April 25th, 2025]
- Harvard invokes First Amendment in US lawsuit over academic control - Times of India - April 25th, 2025 [April 25th, 2025]
- Fun with the First Amendment: Why Sarah Palins lawyers are happy, and why Deborah Lipstadt isnt - Media Nation - April 25th, 2025 [April 25th, 2025]
- The First Amendment Is Being Rewritten in Real Time - Rewire News Group - April 25th, 2025 [April 25th, 2025]
- Criminalizing the Assertion of First Amendment Rights - Law.com - April 25th, 2025 [April 25th, 2025]
- Massachusetts First Amendment case: Harmony Montgomerys custody hearing audio to be released - Boston Herald - April 25th, 2025 [April 25th, 2025]
- Harvard, Trump and the First Amendment: Will Others Follow Suit? - Law.com - April 25th, 2025 [April 25th, 2025]
- Executive Watch: The breadth and depth of the Trump administrations threat to the First Amendment First Amendment News 465 - FIRE | Foundation for... - April 12th, 2025 [April 12th, 2025]
- Rising Wave of Funders and PSOs Stand Up for the First Amendment Freedom to Give - Inside Philanthropy - April 12th, 2025 [April 12th, 2025]
- Clear commands of First Amendment precedent: Trump-appointed judge rejects government motion to stay court order allowing Associated Press back into... - April 12th, 2025 [April 12th, 2025]
- Distinguished lecture series on First Amendment at URI adds Visiting Professors of Practice Rhody Today - The University of Rhode Island - April 12th, 2025 [April 12th, 2025]
- Everything starts with a voice: Understanding the First Amendment - The Tack Online - April 12th, 2025 [April 12th, 2025]
- This is an all-out war on the First Amendment - mronline.org - April 12th, 2025 [April 12th, 2025]
- The lost right in the first amendment - The Tack Online - April 12th, 2025 [April 12th, 2025]
- Zero-tolerance laws on Tennessee school shooting threats raise First Amendment worries - The Tennessean - April 12th, 2025 [April 12th, 2025]
- Federal Judge Orders White House to Restore Access to AP, Citing First Amendment - Democracy Now! - April 12th, 2025 [April 12th, 2025]
- Does the First Amendment apply to the students in Texas who had their visas revoked? - Fort Worth Star-Telegram - April 12th, 2025 [April 12th, 2025]
- Guest Column: Detention of Tufts Student a Brazen Attack on the First Amendment - The Bedford Citizen - April 12th, 2025 [April 12th, 2025]
- KU students protest for First Amendment rights - The Washburn Review - April 12th, 2025 [April 12th, 2025]
- Trackergate: The First Amendment Fights Back as Schieve and Hartung Face the Music - Nevada Globe - April 12th, 2025 [April 12th, 2025]
- A friend's wedding, the First Amendment - Delta Democrat-Times - April 12th, 2025 [April 12th, 2025]
- Judge rules against White House in AP's First Amendment case - newscentermaine.com - April 12th, 2025 [April 12th, 2025]
- UMass Amherst library hosts webinar on the First Amendment and book banning - Massachusetts Daily Collegian - April 12th, 2025 [April 12th, 2025]
- Kansas Statehouse clownery has torn First Amendment to shreds. Who will tape it back together? - Kansas Reflector - March 18th, 2025 [March 18th, 2025]
- Is Mahmoud Khalil protected by the First Amendment? - CNN - March 18th, 2025 [March 18th, 2025]
- D.C. Media's Gridiron Dinner Features A Toast To The First Amendment --- And Not To The President - Deadline - March 18th, 2025 [March 18th, 2025]
- Mayors Threat to Close Miami Cinema Over No Other Land Screening Condemned by Film Groups as First Amendment Violation - Yahoo - March 18th, 2025 [March 18th, 2025]
- TSA Screeners' Union Sues the Trump Administration for Violating Its First Amendment Rights - Reason - March 18th, 2025 [March 18th, 2025]
- Kevin McCabe: Why defending the First Amendment means protecting the Second - Must Read Alaska - March 18th, 2025 [March 18th, 2025]
- Murder the Truth explores the campaign against the First Amendment - The Washington Post - March 18th, 2025 [March 18th, 2025]
- The Trump-Musk Administration Is Running Out of Ways to Ignore the First Amendment - Balls & Strikes - March 18th, 2025 [March 18th, 2025]
- From Gods to Google: DU Law Professor Sounds Alarm Over First Amendment and Technology Regulation - University of Denver Newsroom - March 18th, 2025 [March 18th, 2025]
- Intimidating abridgments and political stunts First Amendment News 461 - Foundation for Individual Rights and Expression - March 18th, 2025 [March 18th, 2025]
- Opinion | The Khalil case is a threat to First Amendment rights - The Washington Post - March 18th, 2025 [March 18th, 2025]
- Fallout from campus protests sparks debate on limits of the First Amendment - Spectrum News - March 18th, 2025 [March 18th, 2025]
- Troy Carico: Stabbing the First Amendment in the back in Alabama | - 1819 News - March 18th, 2025 [March 18th, 2025]
- Donald Trump Is Tearing Up The First Amendment - HuffPost - March 18th, 2025 [March 18th, 2025]
- Sorry Mahmoud Khalil, Aliens Do Not Have the Same First Amendment Rights as American Citizens - Immigration Blog - March 18th, 2025 [March 18th, 2025]
- BREAKING: Bill Nye to headline annual Loyolan First Amendment Week - Los Angeles Loyolan - March 18th, 2025 [March 18th, 2025]
- Spokane and Bonner county sheriff's offices can no longer hide or delete critical Facebook comments after First Amendment concerns, judges rule - The... - March 18th, 2025 [March 18th, 2025]
- Paula Rigano: Last time I checked, the First Amendment still stood - GazetteNET - March 18th, 2025 [March 18th, 2025]
- Trump is using antisemitism as a pretext for a war on the first amendment | Judith Levine - The Guardian - March 18th, 2025 [March 18th, 2025]
- Professor Can Continue with First Amendment Claim Over Denial of Raise for Including Expurgated Slurs on Exam - Reason - March 18th, 2025 [March 18th, 2025]
- Free Mahmoud Khalil and protect students exercising their First Amendment rights! - MoveOn's petitions - March 18th, 2025 [March 18th, 2025]
- Guy Ciarrocchi: The lesson from Covid the experts hate our First Amendment - Broad + Liberty - March 18th, 2025 [March 18th, 2025]
- Trump Administration Faces Growing Backlash Over First Amendment Concerns and Threats to Free Speech - Arise News - March 18th, 2025 [March 18th, 2025]
- The Lobby, Mahmoud Khalil & the First Amendment - Consortium News - March 18th, 2025 [March 18th, 2025]
- Expressive Discrimination: Universities' First Amendment Right to Affirmative Action Part 2 - Reason - March 3rd, 2025 [March 3rd, 2025]
- Inside Israel's Plan To Resume the War and 'Eradicate Hamas.' Plus, Trump's Press Pool Takeover Is Not an Assault on the First Amendment. - Washington... - March 3rd, 2025 [March 3rd, 2025]
- Expressive Discrimination: Universities' First Amendment Right to Affirmative Action - Reason - March 3rd, 2025 [March 3rd, 2025]
- OPINION: Attacking the First Amendment and America's free press - Midland Daily News - March 3rd, 2025 [March 3rd, 2025]
- Press pool takeover drowns First Amendment - Freedom of the Press Foundation - March 3rd, 2025 [March 3rd, 2025]
- First Amendment Victory! Wyoming Airport Agrees to Settlement After Rejecting PETA Ad - PETA - March 3rd, 2025 [March 3rd, 2025]
- Our View: Theres nothing murky about the First Amendment - Palestine Herald Press - March 3rd, 2025 [March 3rd, 2025]
- Ohio Universitys complicated history with the First Amendment and student expression - The New Political - March 3rd, 2025 [March 3rd, 2025]
- A free press makes a country free The First Amendment protects the liberty of all - Hawaii Tribune-Herald - March 3rd, 2025 [March 3rd, 2025]
- Whats the First Amendment Got to Do With It? The White Houses Associated Press Ban - Law.com - March 3rd, 2025 [March 3rd, 2025]
- Opinion | The First Amendment Isnt on Trumps Side - The Wall Street Journal - March 3rd, 2025 [March 3rd, 2025]
- Trump Tries To Carve Out a First Amendment Exception for 'Fake News' - Reason - March 3rd, 2025 [March 3rd, 2025]
- MTHS receives its 15th First Amendment Press Freedom Award - MLT News - March 3rd, 2025 [March 3rd, 2025]
- The White House takeover of the press pool is a brazen attack on the First Amendment - MSNBC - March 3rd, 2025 [March 3rd, 2025]
- Donald Trump violated the First Amendment when he barred The Associated Press from the White House - The Observer - March 3rd, 2025 [March 3rd, 2025]
- D.C.'s U.S. Attorney Is a Menace to the First Amendment - Reason - March 3rd, 2025 [March 3rd, 2025]
- Ominous Move to Strip Americans of First Amendment Rights - DCReport - March 3rd, 2025 [March 3rd, 2025]
- Editorial New York Daily News: A free press makes a country free The First Amendment protects the liberty of all - The Daily News Online - March 3rd, 2025 [March 3rd, 2025]
- Narrow Applicability Is Not the Same As Narrow Tailoring: Applying the First Amendment in First Choice Womens Resource Centers v. Platkin - The... - February 27th, 2025 [February 27th, 2025]
- More to Every Story: First Amendment rights and public events - KREM.com - February 27th, 2025 [February 27th, 2025]
- Trumps lawsuit barred by the First Amendment, pollsters team argues - The Washington Post - February 27th, 2025 [February 27th, 2025]
- Judge orders local newspaper to remove editorial; owner says this violates First Amendment rights - WLBT - February 27th, 2025 [February 27th, 2025]
- AP sues Trump officials over Oval Office ban, citing First Amendment - Axios - February 27th, 2025 [February 27th, 2025]
- A free press makes a country free: The First Amendment protects the liberty of all - New York Daily News - February 27th, 2025 [February 27th, 2025]
- Ilya Shapiro is back . . . with a new book First Amendment News 458 - Foundation for Individual Rights and Expression - February 20th, 2025 [February 20th, 2025]
- People exercising their First Amendment rights aren't 'wreckers' | Letters - South Bend Tribune - February 20th, 2025 [February 20th, 2025]