Hiers v. The Bd. of Regents of the Univ. of N. Tex. Sys.

• Decision Date: 11 March 2022
• Docket Number: CIVIL 4:20-CV-321-SDJ
• Court: U.S. District Court — Eastern District of Texas
• Parties: NATHANIEL HIERS v. THE BOARD OF REGENTS OF THE UNIVERSITY OF NORTH TEXAS SYSTEM, ET AL.

NATHANIEL HIERS
v.
THE BOARD OF REGENTS OF THE UNIVERSITY OF NORTH TEXAS SYSTEM, ET AL.

CIVIL No. 4:20-CV-321-SDJ

United States District Court, E.D. Texas, Sherman Division

March 11, 2022

MEMORANDUM OPINION AND ORDER

SEAN D. JORDAN, UNITED STATES DISTRICT JUDGE.

Writing for himself and Justice Brandeis nearly a century ago, Justice Oliver Wendell Holmes extolled what he viewed as a foundational tenet of freedom of expression in our country: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought- not free thought for those who agree with us but freedom for the thought that we hate.” United States v. Schwimmer, 279 U.S. 644, 654-55, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting). Since that time, the Supreme Court has consistently recognized that the Founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 661, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (quoting Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)).

This case implicates these bedrock constitutional principles protecting freedom of thought and expression. The setting is a public university, the University of North Texas (“UNT”), and the speaker is a mathematics professor at that university, and a public employee, Nathaniel Hiers. Amidst a slew of constitutional claims asserted by

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Hiers following his departure from UNT, a single question is paramount: What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer?

Near the end of the fall 2019 semester, Hiers wrote an anonymous message on a chalkboard in a faculty lounge criticizing the concept of microaggressions. The next day, he identified himself as the author of the message, refused to apologize, and declined to participate in supplemental diversity training. Less than a week later, university officials informed Hiers that his employment as a professor at UNT would not continue in the spring semester.

Hiers subsequently brought this action under 42 U.S.C. § 1983 and Texas law against fifteen university officials.^[1] At play are Hiers's constitutional rights to free speech, due process, and equal protection, as well as his alleged contractual right to continued employment. The university officials urge the Court to dismiss Hiers's claims. They say that Hiers's chalkboard message was not constitutionally protected speech and that he had no contract to teach at UNT in the spring semester. Their dismissal motion also raises other defenses, including sovereign and qualified immunity.

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Although Hiers has not stated plausible claims for all the asserted violations, he has plausibly alleged that his speech was constitutionally protected and that the university officials violated his First Amendment rights. Hiers has also met his burden of showing that the university officials are not entitled to qualified immunity on his retaliation claim because any reasonable university official would have known that it was unconstitutional to discontinue his employment because of his speech. Thus, for the following reasons, the university officials' motion to dismiss, (Dkt. #39), is GRANTED in part and DENIED in part.

I. Background

UNT hired Hiers as a non-tenured, adjunct professor to teach several linear algebra classes in the fall 2019 semester. (Dkt. #1-5); (Dkt. #39 at 4). Hiers signed UNT's offer letter, which stated that he would teach three classes in the fall semester and that the offer did not “guarantee an appointment in future semesters.” (Dkt. #1-5 at 6). Hiers and Defendant William Cherry, UNT's Associate Department Chair of Mathematics, subsequently exchanged emails about Hiers teaching an additional course in the fall. (Dkt. #1-6). After Hiers expressed interest in teaching a fourth class, Cherry indicated he would amend the offer letter to reflect this change. (Dkt. #1-6).

On November 18, 2019, Cherry asked Hiers to teach a class in the spring, and Hiers stated he would happily do so, although no terms of employment were discussed. (Dkt. #1-7). About a week later, Cherry emailed all adjunct professors in mathematics asking for someone to teach another class in the spring. (Dkt. #1-8).

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Hiers replied that he would like to do so. (Dkt. #1-8). Again, no terms of employment were discussed.

On November 26, 2019-the same day that Hiers stated his desire to teach a second class in the spring-the incident forming the basis of this lawsuit occurred. An anonymous person had placed in the mathematics faculty lounge a stack of flyers, each of which warned faculty against committing “microaggressions” on college campuses. The flyer defines microaggressions and provides examples of statements characterized as microaggressions that it suggests faculty should avoid using in the workplace. For instance, statements such as “I believe the most qualified person should get the job” and “America is the land of opportunity” are cited as microaggressions promoting the “[m]yth of [m]eritocracy.” (Dkt. #1-9 at 3).

Upon seeing these flyers, Hiers-in what all parties agree was intended as a joke-picked up a stick of chalk, drew an arrow pointing to one of the flyers, and wrote the following message on a nearby chalkboard: “Please don't leave garbage lying around.” (Dkt. #1 ¶ 5); (Dkt. #39 at 5). Because a picture is worth a thousand words:

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(Image Omitted)

(Dkt. #1-10).

Shortly after that, Defendant Ralf Schmidt, UNT's Chair of Mathematics, emailed the entire mathematics department with a picture of Hiers's chalkboard

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message. (Dkt. #1-12). In the email, Schmidt stated, “Would the person who did this please stop being a coward and see me in the chair's office immediately. Thank you.” (Dkt. #1-12). Hiers identified himself as the author by replying, “I'll be by in a few minutes. I don't see anything ‘cowardly' about commenting on silly political fl[y]ers left lying in the lounge. If it's fine for someone to leave stacks of them around the lounge, criticizing them should be fine too.” (Dkt. #1-12).

Hiers then met with Schmidt. (Dkt. #1 ¶ 127). Schmidt scolded Hiers and said that criticizing the flyer on microaggressions was “stupid” and “cowardly.” (Dkt. #1 ¶¶ 6, 127-28). Hiers alleges that Schmidt pressured him to apologize “for expressing his views regarding ‘microaggressions, '” which Hiers refused to do. (Dkt. #1 ¶¶ 129- 31). Schmidt also asked Hiers if he would be “interested” in extra diversity training. (Dkt. #1 ¶ 132). Hiers, who alleges that Schmidt did not express or imply that the added diversity training was mandatory, said that he was not interested and that he was already scheduled to take UNT's standard diversity training in a few days. (Dkt. #1 ¶¶ 133-34).

Hiers completed his mandatory diversity training the next week. (Dkt. #1 ¶ 137). And a day later, Hiers went to the mathematics department office to sign his spring offer letter. (Dkt. #1 ¶ 138). But he never got the chance to do so. On December 2, 2019, Cherry informed Hiers that UNT would no longer employ him to teach in the spring. (Dkt. #1 ¶¶ 137-41); (Dkt. #39 at 6). Hiers requested a detailed explanation for this decision, to which Schmidt responded via email. That email is copied in full below:

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Dear Nathaniel,

My decision not to continue your employment in the spring semester was based on your actions in the grad lounge on 11/26, and your subsequent response.

In our conversation you characterized the flyers that upset you as political statements. I looked at them in detail, and they are anything but. Every example of a microaggression listed there makes very much sense, and I am disappointed about your general dismissal of these issues and that you failed to put yourself in the shoes of people who are affected by such comments.

I also think that leaving behind a chalkboard message like you did is not a benign thing to do. Think about how people who see this might react. They don't know who wrote this; it might be a faculty member, grad student or anyone else. The implicit message is, “Don't you dare bringing [sic] up nonsense like microaggressions, or else.” This is upsetting, and can even be perceived as threatening.

Finally, I was disappointed at your response during our conversation. Everyone makes mistakes, and I'm all for forgiveness if actions are followed by honest regret. But you very much defended your actions, and stated clearly that you are not interested in any kind of diversity training.

In my opinion, your actions and response are not compatible with the values of this department. So with regret I see no other choice than to not renew your employment. Please know it gives me no pleasure; in fact, we were counting on you, and it causes considerable difficulties to replace you as a teacher.

Sincerely,

Ralf Schmidt

(Dkt. #1-13 at 1).

Hiers sued the university officials based on these allegations, claiming that they (1) abridged his First Amendment rights to free speech; (2) violated his Fourteenth Amendment rights to due process and equal protection under the law; and (3) breached a contract with him for employment in the spring 2020 semester. The university officials now move to dismiss under Federal Rules of Civil

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Procedure 12(b)(1) and 12(b)(6). (Dkt. #39). They contend that Hiers has failed to state a claim and that-even if he had-his claims should be dismissed based on sovereign and qualified immunity.

II. Legal Standards

A. Legal Standard for Rule 12(b)(1) Motions

The power of federal courts is circumscribed by the limits set forth in Article III of the Constitution. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454...