What happens when academic freedom collides with workplace policies and the principles of free speech? Join Mark Carey and his co-host as they navigate the intricate case of Professor Stuart Regis at the University of Washington, who ignited a firestorm of controversy with a statement in his course syllabus about indigenous land acknowledgments. This episode of the Employee Survival Guide® dives deep into the tensions surrounding free speech, inclusivity, and the rights of employees in academic settings, revealing the complex dynamics at play in today’s workplace culture.
As the university faced backlash from students and staff regarding Professor Regis’s syllabus, the discussion unfolds around the critical intersection of employment law issues and First Amendment rights. How should institutions balance their commitment to diversity and inclusion with the rights of individuals to express their views freely? Our hosts dissect the university’s response to complaints, exploring the implications for employee rights and the broader academic environment. The episode also covers the legal proceedings that ensued, including a district court ruling that initially favored the university, followed by a significant appeal that reversed that decision, highlighting the nuances of free speech protections in educational contexts.
Throughout this compelling episode, listeners will gain insights into the legal frameworks that govern workplace dynamics, the implications of discrimination in the workplace, and the vital importance of employee advocacy. Whether you’re navigating your own employment contract or facing challenges related to workplace harassment, this episode equips you with valuable knowledge on how to assert your rights and engage in constructive dialogue about free speech and inclusivity. We also discuss the role of human resources in managing workplace conflicts and how to advocate for yourself in a potentially hostile work environment.
With a focus on empowering employees, this episode of the Employee Survival Guide® is not just for those in academia; it’s a crucial listen for anyone interested in understanding the evolving landscape of employment law, workplace rights, and the delicate balance between institutional policies and individual freedoms. Tune in to explore how the principles of free speech can coexist with the need for a respectful and inclusive workplace culture, and discover effective strategies for navigating employment disputes, negotiating severance packages, and standing up against discrimination.
Don’t miss this enlightening discussion that challenges conventional thinking and encourages you to become an advocate for your rights in the workplace. Join us as we dissect the complexities of free speech and its implications for every employee, whether you’re working in a remote enviro
If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, X and LinkedIn.
We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts and Spotify. Leaving a review will help other employees find the Employee Survival Guide.
For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.
Disclaimer: For educational use only, not intended to be legal advice.
Transcript:
Speaker #0
Hey, it’s Mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about, and a lot more.
Speaker #1
Welcome to another episode of the Employee Survival Guide, produced by employment attorney Mark Carey. You know, usually when we talk about workplace policies or like HR handbooks, there’s this underlying expectation of precision.
Speaker #2
Oh, absolutely.
Speaker #1
Right. It’s like engineering. Like if you break your arm, the x-ray shows that jagged white line and the doctor just points at it and says, you know, there it is. There’s the fracture.
Speaker #2
Yeah, it’s a binary system. I mean, the bone is either broken or it’s not. A rule was either violated or respected.
Speaker #1
Exactly. And that clean binary is really comforting. We fundamentally like our workplace rules to be visible and perfectly categorized. If an employee breaks a rule about, say, attendance, You pull out the handbook, point to the infraction, apply the penalty, and that’s it. Case closed.
Speaker #2
Right. But the moment you step out of standard corporate compliance and into the realm of academic freedom, the First Amendment, well, that x-ray machine just shatters.
Speaker #1
Completely shatters. We are looking at a legal landscape today that is incredibly, incredibly murky.
Speaker #2
It’s the absolute definition of muddy waters. I mean, when you mix the constitutional rights of a public employee with the logistical and cultural needs of a massive. Modern university, those lines blur instantly.
Speaker #1
Yeah, you’re not looking for a clean break anymore. You’re trying to measure the wind. And measuring that wind is exactly what we are exploring today. We are unpacking a fascinating, highly relevant collision between workplace policy, academic freedom, and the First Amendment, all happening at the University of Washington.
Speaker #2
We have a substantial stack of legal documents to guide us through this. Specifically, we’ve got the civil rights complaint filed by Professor Stuart Regis against the University of Washington.
Speaker #1
OK.
Speaker #2
We also have the written order from the district court, specifically Judge John H. Chun, who initially sided with the university. And finally, the massive recent ruling from the Ninth Circuit Court of Appeals, which stepped in and completely reversed that lower court decision.
Speaker #1
Now, before we get into the weeds here, we need to make something explicitly clear to you, the listener. The source materials we’re discussing today contain highly politically charged themes.
Speaker #2
Very much so.
Speaker #1
Right. We’re talking about indigenous land acknowledgements on one side and dissenting viewpoints based on the labor theory of property on the other. And I want to be crystal clear, this show is absolutely not taking a side on the politics or the morality of this issue.
Speaker #2
No, not our mission at all.
Speaker #1
Exactly. Our goal is to impartially analyze the legal tug of war over what a public employee is allowed to say in the workplace. Specifically, what a university professor is legally permitted to put in a required syllabus.
Speaker #2
That neutrality is so crucial. We are dissecting the legal architecture, the phrasing of policies and how courts interpret them. The personal political opinions of the hosts, the students or the professor, they’re entirely secondary to the constitutional frameworks at play.
Speaker #1
Right. Because whether you are an employee navigating company culture or a manager writing policies or just, you know, insanely curious about your First Amendment rights, this case provides a masterclass. It shows exactly how fragile the line is between disruptive conduct. And protected speech.
Speaker #2
Okay, let’s unpack this. Take us to the inciting incident. Where does this actually begin? So, the timeline begins at the University of Washington’s Allen School of Computer Science and Engineering. The university has a stated public goal of providing an inclusive environment for indigenous people, right? Especially native students who are underrepresented in computer science.
Speaker #1
Makes sense.
Speaker #2
So in pursuit of that, the Allen School administration releases this document titled Allen School best practices for inclusive teaching. And this document suggested, and this is a vital legal distinction, it did not mandate, it only suggested, that faculty include an indigenous land acknowledgement statement in their course syllabi.
Speaker #1
And they gave them a template to use.
Speaker #2
They did. The suggested statement read, the University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquanish, Tulalip, and Muckleshoot nations.
Speaker #1
Okay.
Speaker #2
And this wasn’t just thrown together. The documents note it was a deliberate process working with the governor’s office of Indian Affairs and regional tribal leaders.
Speaker #1
So the university provides this deeply vetted statement. But Professor Stuart Regis, who, by the way, has been teaching at the Allen School since 2004, decides he wants to take a fundamentally different approach.
Speaker #2
He really does.
Speaker #1
For his winter 2022 course, which is Computer Science 143, a required intro programming course with, what, about 500 students?
Speaker #2
Yeah. Right around 500 enrolled.
Speaker #1
Huge class. He writes his own custom acknowledgement statement and drops it right into the official syllabus.
Speaker #2
Right. Professor Regis’ dissenting statement read, and I quote, I acknowledge that by the labor theory of property, the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.
Speaker #1
OK, we need to pause here because throwing the phrase labor theory of property out there without context really undersells what he wrote. I’m somewhat familiar with John Locke, but walk us through the actual mechanism of that theory. Why is that such a strike against the university’s message?
Speaker #2
Yeah. To understand the reaction, you have to look at Locke’s philosophical mechanism from the 17th century. John Locke argued that the earth was given to mankind in common. So uncultivated wild land has no true private owner. The only way you acquire private property rights is by mixing your physical labor with it, by tilling the soil, farming it, building permanent structures.
Speaker #1
Ah, so you transform wild nature into property through basically… European-style agricultural development.
Speaker #2
Exactly. And historically, colonial powers weaponized this exact theory to justify seizing indigenous lands across North America. The argument was, well, because many native populations engaged in seasonal migration or hunting rather than intensive European farming, they hadn’t sufficiently mixed their labor with the land.
Speaker #1
Wow.
Speaker #2
So under Lockean theory, they never truly owned it, and it was free for the taking. So Regis isn’t just casually disagreeing with the university here. He’s invoking a very specific framework to argue that the Coast Salish people never actually had a valid historical claim to the land at all.
Speaker #1
That completely flips the script. I mean, he’s taking a deeply held university value and intellectually dismantling it right there on page one of a required computer programming syllabus. I have to imagine 500 students reading that didn’t just quietly move on to learning Java.
Speaker #2
Oh, the fallout was immediate.
Speaker #1
Yeah.
Speaker #2
And intense. Complaints started flooding in on January 3rd, the very first day of the quarter.
Speaker #1
Day one.
Speaker #2
Day one. The Allen School’s Recruiter for Diversity and Access, Kayla Schuster, escalated the issue directly to the school’s director, Magdalena Balazinska. She argued it undermined recruiting, asking, basically, how am I supposed to recruit Native students into an environment where their history is denied on the first day?
Speaker #1
And the student body must have been just as vocal.
Speaker #2
Absolutely. One student complaint stated they felt intimidated and unsupported in a mandatory major class. The DEI Student Committee mobilized. emailing administration to say it created a toxic environment. Another anonymous feedback form called the statement factually wrong, intentionally inflammatory, and trauma mocking.
Speaker #1
Trauma mocking. That phrasing really highlights the emotional stakes. For the administration, this isn’t just an abstract debate in a faculty lounge. It’s a real-time crisis of student welfare. So how does Director Balazinska respond to a tenured professor causing this uproar?
Speaker #2
The very next day. January 4th, she emails him directly. She issues a formal directive ordering him to remove the statement immediately, calling it offensive and saying it creates a toxic environment. But, and this is huge, she makes a very specific legal concession.
Speaker #1
What does she say?
Speaker #2
She explicitly tells him, you are welcome to voice your opinion in opposition to land acknowledgements in other settings. But the current statement in your course syllabus is inappropriate and must be removed.
Speaker #1
So she’s compartmentalizing his speech. Like, the campus quad is fine, your personal time is fine, but… This specific piece of paper is off limits. Regis doesn’t comply, does he?
Speaker #2
No, he flatly refuses. So facing that insubordination, the director bypasses him entirely. She coordinates with the IT department.
Speaker #1
Wait, really?
Speaker #2
Yes. The IT staff unilaterally logs into the university’s online class portal, forcibly deletes Regis’ statement from his digital syllabus, and uploads an altered, sanitized version for the students.
Speaker #1
That is a staggering administrative intervention. Having the IT department act as like an editorial arm to remotely alter a professor’s document midweek. But that wasn’t even the end of it because they escalate this into a massive logistical maneuver.
Speaker #2
Yeah. On January 7th, they implement what the filings call a shadow class. They opened an entirely separate concurrent section of this exact same 500 person intro course.
Speaker #0
Wow.
Speaker #2
They pulled in a different professor to instruct it using prerecorded lectures for the quarter. And then, They offered the entire class the opportunity to transfer laterally into this shadow section. No questions asked.
Speaker #1
Setting up a shadow class for 500 students in the first week is a registrar’s nightmare. You’ve got union rules, a new instructor to pay, gradebook chaos. How many students actually jumped ship?
Speaker #2
About 170. Former transferred out of Regis class and into the shadow section. Yeah. Roughly 30% of the class chose to uproot their schedules just to avoid this specific professor.
Speaker #1
30%. That is massive. But I need to stop here and push back on the core premise of Regis’s outrage, because if I put myself in the shoes of the university, if they require a professor to hand out a syllabus to deliver the curriculum, isn’t that syllabus fundamentally the university’s property?
Speaker #2
Right. That’s the central question.
Speaker #1
Let me try an analogy here. Say I work for a large corporate tech firm and the HR director says, hey, we suggest everyone put the new company inclusivity slogan in their email signature.
Speaker #2
OK.
Speaker #1
If I go rogue… and put a parody slogan in my signature instead, one that actively mocks the company’s goals and my coworkers are furious. My boss can absolutely tell me to take it down. And if I refuse, I’m fired for insubordination. The email signature belongs to the company. Why is a university syllabus any different?
Speaker #2
It is an excellent analogy. And the university administration would say, you are 100% accurate. They view the syllabus as a highly regulated administrative tool to deliver approved curriculum. But higher education operates under a deeply entrenched precedent regarding academic freedom. The syllabus is traditionally viewed as the intellectual purview of the faculty member. But regarding your email signature point, we really have to look at the context of where Regis was speaking.
Speaker #1
Right. Break that down. Why does the where matter here?
Speaker #2
Because the director explicitly told him he could voice opposition in other settings. And he did. He printed out his lock-in statement and physically taped it outside his faculty office door.
Speaker #1
OK.
Speaker #2
He included it at the bottom of his personal university emails. He debated it with colleagues on the diversity allies listserv. And the university didn’t stop him from doing any of that.
Speaker #1
Wait, they didn’t discipline him for the door or the email?
Speaker #2
Not at all. The administration drew a hard line that the syllabus was a purely academic setting for course delivery, a captive audience environment, not a soapbox for political dissent.
Speaker #1
That is fascinating. He’s allowed to hold the opinion and display it on his door, but stapling it to the required document for 500 captive students. is the tripwire. And crossing that tripwire kicks off this massive disciplinary machine.
Speaker #2
Exactly. The shadow class was just triage. The refusal to remove the statement triggered formal disciplinary procedures, which forced Ridges to file his lawsuit.
Speaker #1
Let’s get into the machinery of that discipline, because they didn’t just write a stern letter. There were real financial consequences, right?
Speaker #2
Very real. Director Belizinska initiated a formal process under Faculty Code Section 25-71. For a faculty member, this is highly serious. It can lead to dismissal, reduction of salary, or suspension. And while this investigation was pending, they formally withheld REGIS’ 3.25% merit pay increase for two entire academic years.
Speaker #1
Oh, wow. Two years.
Speaker #2
Two years. And this increase had already been authorized by the president for eligible faculty based on performance. Dean Nancy Albritton eventually concluded the investigation with a stark warning. If you put the statement in any future syllabi, she would proceed toward full termination.
Speaker #1
So he loses two years of a salary bump, has a termination threat hanging over his head, and lost 30 percent of his students. So Regis secures backing from FIRE, the Foundation for Individual Rights and Expression, and sues in federal court. What are his actual legal claims?
Speaker #2
He sues for First Amendment retaliation and viewpoint discrimination against the individual administrators. He argues that by creating the shadow class, withholding his pay, and threatening his job, They unlawfully retaliated against him for protected speech.
Speaker #1
I want to understand the distinction there. First Amendment retaliation is you punished me for speaking. But how does viewpoint discrimination function here?
Speaker #2
It’s a highly specific, deeply unconstitutional subset of speech regulation. He’s arguing the university didn’t just punish him for speaking about land acknowledgements. They punished him specifically because he expressed a dissenting perspective.
Speaker #1
Ah, I see.
Speaker #2
If he had used the approved institutional statement, there would be no investigation. He claims they mandated a viewpoint and brought the hammer down solely because he expressed the opposing philosophical perspective.
Speaker #1
That makes perfect sense. But his lawsuit attacks the university rulebook, too, right?
Speaker #2
Yes. He launches a facial challenge against Executive Order 31 or EO 31, claiming it’s unconstitutionally overbroad and vague.
Speaker #1
We need to dive into the exact wording of EO 31 because this is the foundational rule. What does it actually say?
Speaker #2
The preamble talks about promoting an environment free of discrimination. But the critical enforcement sentence reads, To facilitate that goal, the university retains the authority to discipline or take appropriate corrective action for any conduct that is deemed unacceptable or inappropriate, regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation.
Speaker #1
Let me stop you right there. Because those words are terrifying from an employee rights perspective. Unacceptable or inappropriate, regardless of whether it rises to the level of unlawful discrimination. If you manage a team or write HR handbooks, you should be sweating right now.
Speaker #2
Oh, absolutely.
Speaker #1
Here’s where it gets really interesting. Imagine a workplace rule that says you can be fired for being inappropriate, even if you didn’t break any actual law or harassment policy. Who defines inappropriate? Isn’t that like a referee in a basketball game inventing a foul on the spot just because he didn’t like how a player looked at him?
Speaker #2
That referee analogy captures the exact argument Regis presented. Terms like unacceptable and inappropriate are entirely subjective. They exist solely in the eye of the administrator. In constitutional law, this broad wording triggers two fatal flaws, overbreath and vagueness.
Speaker #1
Break those down mechanically. What’s the difference between overbroad and vague?
Speaker #2
Overbreath is a First Amendment issue. It happens when a policy sweeps so widely that while it might ban some illegal conduct like severe harassment, it acts as a dragnet that also prohibits a massive amount of perfectly legal protected speech.
Speaker #0
Right.
Speaker #2
Vagueness, on the other hand, is a 14th Amendment due process issue. A rule is vague if an ordinary person can’t figure out what conduct is actually prohibited. It gives administrators arbitrary discretion to selectively punish people they just don’t like.
Speaker #1
So the battle lines are drawn. We have the professor fighting for academic freedom. and the university fighting for an inclusive learning environment. This takes us to round one in the district court, and the judge hands a sweeping victory to the university. How did they win that round?
Speaker #2
The initial lawsuit went before Judge John H. Chun. Now, it’s critical to understand the legal framework here. You can’t just screen First Amendment in a workplace and win. The baseline rule comes from a Supreme Court case called Garcetti v. Chabalos.
Speaker #1
Okay, Garcetti.
Speaker #2
Garcetti establishes that when public employees make statements, Pursuant to their official job duties, they are speaking as employees, not private citizens. So they have zero First Amendment protection for that speech.
Speaker #1
Wait, I’m losing the thread here. If I’m a city planner and my job is to write a report on a highway and I write that the mayor’s plan is a corrupt disaster, under Garcetti, the mayor can just fire me, even if I’m telling the truth.
Speaker #2
Yes. If writing that report was your official duty, the city is the author of that speech, not you. The employer controls what it commissions. So UW leaned heavily on Garcetti, arguing that writing a syllabus is a professor’s official duty. Ergo, it’s government speech, no First Amendment protection.
Speaker #1
Seems like a slam dump for the university. Did Judge Chun agree?
Speaker #2
He did not.
Speaker #1
Oh.
Speaker #2
This is where it gets nuanced. Judge Chun recognized that applying Garcetti to higher education would destroy academic freedom. He applied an exception from an appellate case called Dimmers v. Austin, which explicitly carves out academia.
Speaker #1
Right.
Speaker #2
It states that Garcetti doesn’t apply to speech related to academic scholarship or classroom instruction.
Speaker #1
OK, so the syllabus is protected?
Speaker #2
Yes. Judge Chun ruled the Lockett statement was relating to scholarship and classroom instruction, so it survived the Garcetti trap.
Speaker #1
Now I’m genuinely confused. If the judge explicitly ruled his speech was protected by the First Amendment, how did the university still win?
Speaker #2
Because proving your speech is protected is only the first hurdle. The court must then apply a highly subjective framework known as the Pickering balancing test.
Speaker #1
The The Pickering Balancing Test. Where does that come from and how does it work?
Speaker #2
It comes from a 1968 Supreme Court case where a teacher was fired for criticizing the school board in a newspaper. The test requires the judge to literally weigh two competing interests. On one side, the employee’s interest in commenting on a matter of public concern.
Speaker #1
Right.
Speaker #2
On the other side, the state’s interest, the university’s interest in promoting the efficiency of the public services it performs.
Speaker #1
So it’s a standoff. Free speech versus workplace efficiency.
Speaker #2
Exactly. The government doesn’t have to tolerate speech if it destroys their ability to function. They can punish protected speech if it severely impairs discipline, damages working relationships, or substantially interferes with the regular operation of the enterprise. And Judge Chun decided the disruption Regis caused outweighed his free speech rights.
Speaker #1
What specific disruption did he point to? Was administrative annoyance enough to strip a First Amendment right?
Speaker #2
It was far more than annoyance. The court pointed to three categories of disruption. First, the massive logistical chaos of creating the shadow class midweek. Second, the impact on the teaching assistants.
Speaker #1
Right, the TAs.
Speaker #2
UAW union representing them explicitly told the university the TAs were afraid to express their own views in breakout sections for fear of professional retaliation from Regis.
Speaker #1
That power dynamic is compelling. What about the students?
Speaker #2
That was the third and heaviest factor. The court cited devastating emails from students feeling alienated and targeted. One native student said they felt so unsafe they would have abandoned the program entirely if they hadn’t already transferred their major. And the recruiter said it made recruiting native students nearly impossible.
Speaker #1
I understand the emotional weight of that. But let me jump in from a purely academic standpoint. Isn’t a tenured professor’s job to make people think? And doesn’t that inherently make people uncomfortable? If student complaints qualify as disruption under the law, doesn’t that give the student body a heckler’s veto over the curriculum? Like if they yell loud enough, the university can just censor the professor to keep the tuition checks clearing.
Speaker #2
You’re hitting on the exact philosophical debate that makes this area of law so agonizing. Judge Chun knew this. He noted Supreme Court precedent warning that just wanting a sedate academic environment isn’t enough to limit freedom.
Speaker #1
So why did he validate the censorship?
Speaker #2
If we connect this to the bigger picture, Judge Chun determined this escalated beyond intellectual discomfort. It was an operational breakdown. When 170 students physically flee, when TAs are paralyzed by fear. The regular operation of the university is severely impeded. So the university’s interest in maintaining a functioning department heavily outweighed Regis’ personal interest in injecting his parity onto the syllabus.
Speaker #1
OK, what about his attack on the EO31 policy, the vagueness argument? Did the judge strike that down?
Speaker #2
No, the university won that too. Judge Chun saved EO31 by using a judicial technique called a limiting construction.
Speaker #1
Meaning what in practice?
Speaker #2
He looked at the preamble about discrimination and harassment. and ruled that words like unacceptable and inappropriate can’t be read in isolation. They must be interpreted to mean conduct that closely resembles actual unlawful discrimination or harassment. By judicially reading that limitation into the text, he ruled it gave fair notice and wasn’t vague.
Speaker #1
OK, so round one goes entirely to the university. Total victory. But then reaches appeals and the Ninth Circuit Court of Appeals steps in, reviews the exact same facts and completely flips the case on its head.
Speaker #2
Yes. Round two, the reversal. They completely reinstate Regis’ claims.
Speaker #1
How do three appellate judges look at the exact same chaos and completely undo his decision?
Speaker #2
Well, they actually agreed with Judge Chun on the first steps. They agreed it was a matter of public concern and fell under the Demers’ academic exception. They even emphasized that at UW, syllabi are the strict purview of the faculty and aren’t reviewed before distribution.
Speaker #1
So the battleground comes down to the Pickering test again. How did the Ninth Circuit look at 170 fleeing students and terrified TAs and say, nope, that is not disruption?
Speaker #2
By radically redefining disruption in the context of a university campus. The appellate court ruled that the student anger, the complaints, the massive transfer of students that didn’t legally justify retaliation, they categorized it merely as a predictable manifestation of on-campus disagreement.
Speaker #1
On-campus disagreement, a 30 percent enrollment drop is just… disagreement.
Speaker #2
Yes. They explicitly wrote that student unrest is an unavoidable byproduct of core First Amendment safeguards in higher education.
Speaker #1
So what does this all mean? Let me try to contextualize this. It’s like operating a commercial gym. If you run a gym, people are going to get sweaty. It’s an undeniable fact. If members complain that the people next to them are too sweaty, management can’t just shut off the treadmills to maintain a pristine environment. Sweating is the unavoidable byproduct of working out. And what the Ninth Circuit is saying is that in higher ed, ideological discomfort and profound offense, that is the sweat. You can’t have a functioning university without it.
Speaker #2
I love that Jim analogy. It’s highly accurate. The Ninth Circuit explicitly warned against the heckler’s veto you mentioned earlier. If student anger is enough to silence a professor, any unpopular viewpoint could be erased just by organizing a protest.
Speaker #1
But wasn’t there a difference because it was the official syllabus? He wasn’t on a soapbox in the quad?
Speaker #2
The court noted a crucial nuance there. Regis wasn’t going on unhinged political rants during class time and wasting instructional minutes. He just placed a single written statement on a syllabus. The First Amendment protects a teacher’s freedom to express political issues in vigorous, argumentative,
Speaker #1
unmeasured, and even distinctly unpleasant terms. Wow. An incredible reframing. They’re saying the disruption was just the cost of doing business. What about the EO31 policy? Did they overturn? Judge Chun’s limiting construction? They absolutely did. They took a legal scalpel to EO31 and dismantled Judge Chun’s theory based on a single fatal word buried in the text. One word broke the policy.
Speaker #2
One single word. The word regardless.
Speaker #1
Oh, let me read the text again. The university retains authority to discipline for conduct deemed unacceptable, regardless of whether the conduct rises to the level of unlawful discrimination.
Speaker #2
Precisely. The appellate court ruled that Judge Chun’s attempt to conceptually tether inappropriate to actual harassment violated the plain text. By including the word regardless, the university severed that tether themselves. The policy literally says they can punish you regardless of whether it resembles harassment. Therefore, it grants unfettered discretion and is unconstitutionally overbroad.
Speaker #1
That is incredible. One word destroys the legal defense of a massive university policy. But this wasn’t a unanimous decision, right?
Speaker #2
It was not. And to be impartial, we have to examine the powerful dissenting opinion filed by Judge S.R. Thomas, who completely disagreed with the majority.
Speaker #1
OK, how does Judge Thomas defend the word regardless?
Speaker #2
He argued the tether wasn’t broken. He pointed to the phrase immediately following it, rises to the level of. He argued that by stating it doesn’t have to rise to the level of unlawful discrimination, it implies the conduct must still exist on the same spectrum of harassment, just at a lower severity.
Speaker #1
That’s a fascinating textual argument, like saying a speeding ticket doesn’t rise to the level of vehicular manslaughter, but they’re both on the spectrum of driving offenses.
Speaker #2
Exactly. And regarding Pickering. Judge Thomas argued universities have a profound historical obligation to Native students. He felt the majority trivialized the real harm caused. The alienation, the paralyzed TAs, the 170 students transferring. He argued that actual measurable disruption to the learning environment heavily outweighed Regis’ right to put a parody on his syllabus.
Speaker #1
That raises an amazing point. Earlier, we said Regis taped it to his door, put it in his emails, talked to the press, and wasn’t disciplined for any of that. If you could do all that, was UW really silencing his viewpoint or were they just fiercely protecting the administrative space of a syllabus?
Speaker #2
This raises an important question, and it’s the crux of the dissent. Because Regis had so many other robust avenues to express his locking viewpoint, his interest in using the syllabus specifically was incredibly slim. So when weighing that slim interest against massive documented disruption, UW should win the balance handily.
Speaker #1
Because the syllabus is a functional tool of the employer.
Speaker #2
Exactly. Is a syllabus a personal soapbox protected by academic freedom or an administrative tool to deliver required curriculum safely? The Ninth Circuit majority says soapbox. The dissent says administrative tool.
Speaker #1
What an incredible legal journey from a single sentence about a 17th century philosopher and a computer science syllabus to a massive appellate ruling that redefines disruption in the workplace. And it shows with terrifying clarity how specific words like regardless can make or break a policy.
Speaker #2
And that is the crucial listener takeaway. If you draft policies for your organization, precision is everything. Vague terms like inappropriate are a legal minefield. If your policy isn’t explicitly tethered to defined legal standards, a court can strike it down.
Speaker #1
And if you’re an employee.
Speaker #2
Understanding the context of where and how you speak matters as much as what you say. Regions was protected because of academic freedom. But if a city water department accountant put a political statement on municipal water bills, Garcetti would apply and they’d be fired instantly with no protection. The medium dictates the protection.
Speaker #1
Vital distinction. But I want to leave you, the listener, with a final provocative thought. We’ve talked about the rights of the professor and the university, but a university requires students to take these courses, creating a captive audience. If students are forced to pay exorbitant tuition and sit in a lecture hall to get a mandatory credit, at what point does a professor’s right to academic freedom cross the line and act actively infringe on a student’s basic right to simply learn the subject matter they paid for. If you just want to learn Java, should you have to navigate your professor’s political protests on day one? It’s a profound collision of rights with no easy answer.
Speaker #2
It’s a debate that will continue to shape higher education and the workplace for decades.
Speaker #1
Absolutely. Well, earlier I compared workplace policies to an x-ray machine. I think it’s safe to say after today we can see the machine is completely broken. When it comes to the First Amendment in the work… If you like the Employee Survival Guide,
Speaker #0
I’d really encourage you to leave a review. We try really hard to produce information to you that’s informative, that’s timely, that you can actually use and solve problems on your own and at your employment. So if you’d like to leave a review anywhere you listen to our podcast, please do so. and leave five stars because anything less than five is really not as good, right? I’ll keep it up. I’ll keep the standards up. I’ll keep the information flowing at you. If you’d like to send me an email and ask me a question, I’ll actually review it and post it on there. You can send it to mcaryu at capclaw.com. That’s capclaw.com.