A professor at the University of Texas at Austin (UT) has lost his lawsuit against several university officials, with the Fifth Circuit Court of Appeals affirming the lower court’s decision. The professor, Richard Lowery, claimed that the officials violated his First Amendment rights by allegedly trying to silence him after he criticized the university and its officials. The court found that Lowery did not suffer an “adverse employment action,” a key element in his retaliation claim, and that his other claims also lacked merit.
Background of the Case
Lowery, a professor at the McCombs School of Business and an Associate Director at the Salem Center for Public Policy, frequently voiced his opinions on various topics through social media, online articles, and podcasts. His criticisms targeted UT officials and covered subjects like critical-race theory, affirmative action, and the future of capitalism.
Lowery’s criticisms included accusations against administrators, particularly regarding affirmative action policies. He also criticized the university’s handling of his proposal to create “The Liberty Institute,” a project he envisioned promoting intellectual diversity. Lowery claimed that UT officials, including then-President Jay Hartzell, “hijacked” the project and created a watered-down version.
Lowery alleged that the university officials responded to his criticisms by attempting to silence him. He claimed they threatened his job, pay, and academic freedom, and that the university either allowed or did not retract a request for police to surveil his speech. Lowery stated that he began to self-censor as a result, which he claimed was an ongoing violation of his First Amendment rights.
The court’s opinion details several instances of alleged attempts to curb Lowery’s speech. These included emails from colleagues and administrators expressing concerns about his public comments and asking him to tone down his criticism. Lowery also stated that he was told his relationship with the Salem Center was in jeopardy if he didn’t moderate his views. In response to these perceived threats, Lowery stopped tweeting altogether.
The Lawsuit and the Court’s Decision
Lowery sued several UT officials in their official capacities, alleging violations of his First Amendment rights under 42 U.S.C. § 1983. He brought two main claims: a claim for chilling of his free speech and a claim for retaliation for protected speech. He also challenged an alleged unwritten speech code.
The district court dismissed the retaliation claim because Lowery had not sufficiently alleged an adverse employment action and granted partial summary judgment on the chilled speech claim, finding that it was essentially a retaliation claim. The court also dismissed the speech code claim.
The Fifth Circuit Court of Appeals affirmed the district court’s decisions. The appellate court agreed that Lowery’s claims were essentially the same, focusing on the alleged chilling effect of the university’s actions.
Key Legal Issues and the Court’s Reasoning
The court addressed several key legal issues:
* Standing: The court first addressed whether Lowery had “standing” to bring the lawsuit. To have standing, a plaintiff must show that they suffered an injury, that the injury is fairly traceable to the defendant’s actions, and that a favorable court decision can redress the injury. The court found that Lowery had standing, particularly regarding the alleged unwritten speech code, because he showed an intention to engage in protected speech, that his speech was arguably proscribed, and there was a substantial threat of future enforcement.
* Chilled Speech vs. Retaliation: The court found Lowery’s claims of “chilled speech” and “retaliation” to be essentially the same. The court noted that a retaliation claim under § 1983 requires proof of an “adverse employment action.”
* Adverse Employment Action: The central issue in the case was whether Lowery had suffered an adverse employment action. The court cited previous rulings which define an “adverse employment action” as discharges, demotions, refusals to hire, refusals to promote, and reprimands. The court found that Lowery’s allegations, such as threats to reduce his pay or end his affiliation with the Salem Center, did not meet this standard, as he was not fired or demoted, and his contract was renewed with a pay increase. Criticism, investigations, and other actions, such as his colleague reporting him to the police, did not rise to the level of adverse employment actions.
* Speech Code: Lowery’s challenge to an alleged unwritten speech code also failed. The court found that Lowery did not sufficiently allege the existence of an unconstitutional policy.
* Discovery: Lowery also challenged two discovery rulings. The court found that the district court did not abuse its discretion in these rulings.
The Court’s Conclusion
The Fifth Circuit affirmed the lower court’s decision, concluding that Lowery’s claims could not succeed because he did not suffer an adverse employment action, his speech code claim was not sufficiently supported, and the discovery disputes failed.