From Judge Dan Aaron Polster’s decision Friday in Pesta v. Cleveland State Univ. (N.D. Ohio):
This case concerns the Plaintiff’s First Amendment rights to academic freedom, freedom of speech, and freedom of association as a professor at Cleveland State University (“CSU”).. The Plaintiff alleges that the Defendants violated his constitutional rights when they investigated and fired him for advancing a “genetic hypothesis of the cause of the racial IQ gap” between black and white Americans in a published academic article….
The Plaintiff, Bryan Pesta …, was a Professor in the Department of Management at CSU. Professor Pesta received tenure at CSU in 2010 and promotion to full professor in 2016. In March 2022, CSU fired Professor Pesta….
In August 2019, the Plaintiff co-authored and published in the peer reviewed journal, Psych, an article entitled “Global Ancestry and Cognitive Ability.” The article essentially concluded that an IQ gap between white and black Americans was, at least in part, hereditary and the result of genetics. This conclusion is called a “hereditarian hypothesis.” … In conducting research for the article, the Plaintiff used National Institute of Health (“NIH”) data that consisted of over 9,000 individuals’ actual DNA samples. The Plaintiff’s article concluded that this data supported the belief that “genetics played a role in the mean differences in general intelligence between White and Black Americans.”
The Plaintiff acknowledges that the article “proved controversial.” In the aftermath, CSU students and faculty, along with non-affiliated individuals and groups, publicly criticized the article and petitioned CSU to discipline Professor Pesta. One notable critic was Dr. Kent Taylor …. In April 2021, Dr. Taylor—a UCLA Professor of Pediatric Medicine—wrote President Sands and alleged that the article’s “[u]se of NIH data for studies of racial differences in this way [was] both a violation of data use agreement and unethical.”
At some point after the article’s publication but before the Plaintiff’s firing, CSU removed online access from its website to Professor Pesta’s prior academic work. Specifically, CSU removed the online link to Professor Pesta’s 2008 published article, “Black-White differences on IQ and grades: The mediating role of elementary cognitive tasks” from its “Engaged Scholarship at CSU” website. CSU never provided a website link to the Plaintiff’s article “Global Ancestry and Cognitive Ability.”
In Spring 2021, CSU formed a committee to investigate Professor Pesta…. Later that same month, the committee contacted Dr. Taylor and then interviewed him in October 2021. Dr. Taylor took issue with the final sentence of the article’s abstract that read, “Results converge on genetics as a potential partial explanation for group mean differences in intelligence.” In email correspondence with the committee, Dr. Taylor wrote, “In my opinion, this statement conflicts with the NIH policy NOT-OK-07-088 on taking care that data avoids stigmatization of US population sub-groups.” Dr. Taylor further explained during his interview why he believed that the Plaintiff’s use of the NIH data violated the NIH data use agreement, why it was unethical, and why he was professionally opposed to Professor Pesta’s research into the hereditability of intelligence traits.
In January 2022, the committee issued a report that recommended terminating Professor Pesta. Provost Bloomberg accepted the committee’s recommendation and fired the Plaintiff ….
Prof. Pesta sued, and the court allowed his claim to go forward:
A First Amendment retaliation claim requires the Plaintiff to prove three elements, that: (1) his speech was protected by the First Amendment; (2) he suffered an adverse employment action; and (3) the adverse action was motivated at least in part in response to the exercise of his constitutional rights. The Plaintiff’s firing satisfies the second element. The Defendants’ arguments center on the first and third elements.
Under the first element, courts determine whether protected First Amendment speech is at issue by applying the “longstanding Pickering-Connick framework,” which involves two additional questions: A) whether the Plaintiff was speaking as a citizen, on a matter of public concern; and B) whether the Plaintiff’s interest in doing so outweighs the individual Defendants’ interest in promoting the efficiency of the public services they perform through their employees.
The first sub-element is met. The Defendants do not dispute that the Plaintiff was speaking as a citizen and addressing a matter of public concern.. The Court agrees. The Plaintiff spoke as a citizen—and not as a CSU employee—because his speech occurred publicly, outside his office, and his expressions were not made pursuant to his duties as a CSU professor. Moreover, his speech addressed matters of public concern because the subject matter broadly related to communities’ social and racial concerns. See Meriwether v. Hartop (6th Cir. 2021) (“When speech relates to any matter of political, social, or other concern to the community, it addresses a matter of public concern.” (internal quotations and citation omitted)).
The second sub-element is the crux of the Defendants’ argument. They contend that the Plaintiff has not alleged facts sufficient to establish that his interests outweigh the Individual Defendants’ interests in executing their public services efficiently. Specifically, the Defendants argue that they had “adequate justification” to fire the Plaintiff and that the Plaintiff himself appears to concede that his termination resulted from unethical research methods, not “for exercising his First Amendment right to publish on race-based issues.” The Plaintiff disputes this assertion and maintains that he “plausibly alleged that his research constituted controversial speech by an academic” that “fit[s] within the core of the area protected by the First Amendment.”
While the Plaintiff’s speech relates to academic scholarship, his interests center on his right as a private citizen to write publicly on contentious academic topics without retaliation from his employer. The Plaintiff was a state employee, but he nevertheless retained the right to speak as a citizen. See Garcetti v. Ceballos (2006) (“The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.”).
The individual Defendants’ interests center on upholding CSU’s academic standards and integrity, ethical code of conduct, and professional reputation. This naturally extends to ensuring that academic instructors—especially a tenured professor—use sound research methodologies. Essentially, the weighing of interests turns on the reason CSU investigated and fired the Plaintiff, and that question is a factual one that requires discovery.
Both sides dispute why Professor Pesta was fired, and neither side provided the Court with his termination letter. Certainly, evidence of the Plaintiff’s unethical or unsound practices for proposing, conducting, and reporting research could affect CSU’s operation and could tip the scale in the Defendants’ favor. See Meriwether v. Hartop (“[A] school’s interest in limiting a teacher’s speech is not great when those public statements are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.”). The Plaintiff contends that he did not use unethical and unsound research techniques, but that the Defendants fired him for his viewpoint.
At this [motion-to-dismiss] stage, construing the complaint in the light most favorable to the Plaintiff and accepting his allegations as true, the Plaintiff has alleged sufficient facts that his interests outweigh the individual Defendants’ interests. Accordingly, the Plaintiff has satisfied the first element—and the two Pickering-Connick sub-elements thereunder—and the second element of a First Amendment retaliation claim.
Moving to the third element, the Plaintiff has alleged sufficient facts that the Defendants were motivated, at least in part, to investigate and fire Professor Pesta for exercising his constitutional rights. The Defendants maintain that “[i]t is clear from the face of his Complaint that Pesta was investigated and terminated for misrepresenting to the NIH how he would use the data he requested in violation of NIH policy and basic research ethics.” The Court disagrees.
The Plaintiff alleges that the Defendants never provided an online link to his controversial article, removed online access to his other works before rendering an official decision to fire him, waited more than a year and a half to investigate his alleged wrongdoing, and initiated an investigation only after weathering considerable public criticism. Accepting these allegations as true, the Plaintiff alleged sufficient facts that the Defendants were motivated, at least in part, to investigate and fire him for his protected speech. While this analysis may change with additional facts after discovery, at this point, the Plaintiff satisfies the third element.
Sounds generally right to me. Several circuit courts have concluded that the First Amendment generally protects public university professors from being disciplined based on the viewpoints expressed in their scholarship; the Sixth Circuit is one of them. And while professors can indeed be disciplined pursuant to viewpoint-neutral rules forbidding research misconduct (falsifying data, failing to get patients’ informed consent to various procedures, and so on), it seems to be quite contested here whether such rules were really violated and whether any such violation—as opposed to the viewpoint that Pesta expressed—was the basis for the firing.
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