University Adjunct Prof Fired for Labeling Flyers About “Microaggressions” as “Garbage”

Public employees do not surrender all First Amendment rights because of their employment…. [W]hen citizens enter government service, they necessarily accept certain limits on their freedom of speech…. If employees are free to express their opinions, [that is not part of the employee’s official duties]This touches on an important matter: The First Amendment forbids the government to take adverse employment action against any employee because of such expression, unless there is sufficient justification.

It is undisputed that Hiers suffered an adverse employment decision—termination—and his speech motivated the university officials’ termination decision. This raises two questions. First, did Hiers speak on an issue of public concern? If so, were Hiers’s interests in doing this greater than the university’s in efficiency of public services provided through its employees? The university officials do not address the second question, so the Court will focus its analysis on whether Hiers’s speech touched on a matter of public concern….

Public concern does not include personal grievances or complaints about employment conditions. Speech addresses matters of public concern when they are “related to any matter of social, political or other concern for the community.” This is why the lynchpin for the inquiry is how far the speech promotes an idea beyond personal interest, or communicates a message that has an impact on our political or social lives.

Hiers’s criticism of the microaggression flyer transcended his personal interests and addressed a topic that has a direct impact on citizens’ political and social lives. He did not express any grievances or personal complaints about his work. 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.

Although Hiers’ chalkboard message was true, it did not explain his reasons for disapproval of the flyer. Hiers, however, did not express his opinion that many of the statements in the flyer were false.[y]It is important to note that er does not condemn microaggressions. They can and should be read in a positive or benign way.[y]People learn to look at the worst possible interpretations of statements, ignore the speaker’s intention, and infer a discriminatory motive from others. Had he done so, there would be little doubt—if any—that his speech would be constitutionally  protected. However, the context makes it clear that Hiers’s speech is a protest against a subject (microaggressions), which was born out of the political correctness movement of today. It has since become a cultural contentious issue.

Hiers used the flyer as a reference in his message and it provides important context. Microaggressions are “everyday verbal and nonverbal insults or slights to the environment, including intentional or unintentional” that communicate negative, hostile or derogatory messages to targeted persons solely based on their marginalized group membership. In other words, a microaggression can consist of non-threatening speech that is unintentionally used or the result subconscious stereotypes or bias. The flyer contains examples of purported microaggressions that people—in particular, university faculty members—should avoid in the name of reducing the harm to marginalized groups. Microaggressions that promote the “America the Land of Opportunity” include statements such as “I believe only the best qualified person should be hired” and “I believe America is the greatest country for job opportunities.”[m]The number of [m]eritocracy.” Because of the “America is melting pot”, it is listed in microaggressions.[c]Color [b]lindness.”

Hiers attacked the microaggressions concept promoted by the flyer. His jokey reference to the flyer, “garbage”, is not a violation of the First Amendment. Look at Rankin v. McPherson (1987) (holding that the hyperbole of assassinating President Trump during a conversation on the President’s policies dealt with a matter which was public concern). After all, humor and satire  are time-tested methods of commenting on a matter of political or social concern…. While Hiers’s message on chalkboard was not well-researched or comprehensive, it unambiguously affirmed his views about microaggressions. Hiers said that the microaggressions concept described in the flyer is garbage. See Snyder v. Phelps (2011) (“While these messages may fall short of refined social or political commentary, the issues they highlight … are matters of public import … [and t]He signs definitely conveys [the speaker’s]These issues are being addressed by the position[.]”).

Arguing that Hiers’s speech did not relate to a matter of public concern, the university officials characterize his message as “uncivil” and attempt to draw parallels between this case and those involving the use of profanity or sexually explicit comments in the classroom…. [But p]It doesn’t matter what you think of Hiers, an objective reader can understand Hiers criticizing microaggressions. This criticism is about a cultural hot topic in the country. Hiers did not use any features to communicate his critique that would have put it beyond the First Amendment’s protection. Hiers’s communication, although it was rude and even offensive at times, didn’t amount to “fighting words.” Hiers was also not vulgar in the sense that this term is meant. Hiers, however, spoke in pure speech and thus the First Amendment affords strong protection.

First Amendment guarantees that “even harmful speech regarding public issues is protected to protect public debate,” Schmidt and other university administrators, as well as some UNT professors, may have taken offense to Hiers’s chalkboard message. However, this offensiveness does not answer the question of whether the matter is of public concern. There is nothing more alarming than the desire of a law enforcer to inflict violence on the President. See Rankin (Holding such speech constitutionally protected).

Reliance on university officials Martin v. Parrish (5th Cir. 1986), serves only to highlight the weaknesses in their argument. You can read the rest of their argument here. MartinA university professor was fired for telling students that they were “a bunch bullshit”, and “if I don’t like how I teach this Goddamn course, there is the door.” The Fifth Circuit concluded that the “epithets” did not address any matter of public concern and that context and surroundings are crucial in determining whether or not constitutional protection can be afforded to degrading language. In context, the court found that profanity by the professor was “a deliberate, unnecessary attack on a captive.” [student]”Audience with no educational purpose and without justification.”

Hiers’s speech differs from the one in Martin Both in content and context. In terms of content, Hiers did not use profane and vulgar language. Although the Fifth Circuit stated that schools may punish “lewd and indecent speech”, it didn’t mean that all speech might be considered offensive by someone else. In this case the First Amendment would become null and the First Amendment inapplicable to public-employment speech. The context is what Hiers was referring to, and it wasn’t in a classroom. Hiers spoke to his supervisors and colleagues in the faculty lounge where they regularly discuss political and other social issues, often with lots of banter. Simply stated, Martin Here, no one holds any power.

This is also true for Buchanan v. Alexander (5th Cir. 2019). According to the Fifth Circuit, it was determined that sexually explicit and profane discussions among students and professors about sex were unrelated to education for college students who are preparing to become preschool or grade school teachers. This did not concern a public matter. That’s because, “In the context of college classesSpeech that doesn’t serve an academic purpose does not need to be publicized. Hiers also did not speak profanity about student or professors or in the classroom. Again, university officials compare apples with oranges.

The university officials shift gears and point out that the complaint doesn’t indicate whether there was widespread discussion on microaggressions in UNT at the time Hiers addressed the topic. That may be true, but it doesn’t change the outcome here…. The speech of Hiers directly dealt with a sensitive and important social and cultural topic that is still a hot issue in the public discourse. It relates particularly to college campuses and universities throughout the United States. The topic of microaggressions is a hotly debated issue in recent years. To suggest that speech on such a matter is not of public concern is to deny reality….

Together with content and context, the form of Hiers’s criticism of microaggressions also weighs in his favor—though only slightly…. The speech of Hiers was not given in public and wasn’t visible to the entire university community. It was also not done in secret. The intra-office questionnaire is similar to this one. Connick v. Myers Hiers, in 1983, criticized microaggressions on a shared chalkboard that was open to administrators and faculty as well as doctoral students. What’s more, Hiers alleges that UNT professors regularly discussed all manner of topics, including political and social issues, in the faculty lounge…. [T]The chalkboard seems to have been used as a bulletin board by the UNT math department. Although Hiers didn’t sign the message to chalkboard, it could have been a catalyst for more intense intra-office discussion on microaggressions. Hiers wasn’t responding to an anonymous speech by another person when he criticised the flyer. His anonymity didn’t last very long. The form factor is slightly more favorable in Hiers’s case because it touched upon a subject of public concern. In sum, the Court concludes that the content, context, and form of Hiers’s chalkboard message, as revealed by the whole record, show that his speech touched on a matter of public concern….

After determining that Hiers was speaking on a matter of public concern the Court will now balance Hiers’ interest to speak against the “interest of the State as an employer in improving the efficiency of its public services through its employees.”

Courts balance these interest by determining “if the statement impairs disciplinarians’ or co-workers’ harmony, causes a disruption in close working relationships, for which loyalty and trust are required, or prevents the speaker from performing his duties or interferes on the daily operation of the business.” Employers should never allow disruptions to work relationships or office operations to happen before they take action. However, there should be “reasonable expectations” and “danger” for disruption.

The university has not yet addressed this issue. Pickering The balancing test effectively admits the point in this very early stage. They have not asserted any interest in restricting the speech at issue—let alone argued that any such interest outweighs Hiers’s interest in speaking…. [B]One side of the scale is empty. Pickering Hiers is strongly favored by balance. The Court thus concludes that Hiers plausibly alleged that his interest in speaking on the topic of microaggressions outweighed UNT’s interests—whatever those might be—in restricting his speech. Step two is completed by Hiers’s retaliation claims. Pickering balance….

“Preserving freedom to think as one will and to talk as one thinks is both an inherent right and an unalienable goal of democracy. Hiers’s speech was an alleged violation of the First Amendment by university officials who allegedly ignored it. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech….

Also, the court found that Hiers refused to accept an apology, which was the reason he decided not to rehire Hiers, violated Hiers right to not be forced to speak.

Hiers alleges that the university officials … pressured him to apologize for expressing his views on microaggressions. The complaint, and the attachments that it contains, including Schmidt’s email explaining the reasons Hiers was terminated, make it unclear exactly what his apology should have been. On the one hand, Hiers may have been pressured to apologize for the way he delivered his message—attacking a colleague’s belief in a flippant manner—rather than for the viewpoint he expressed.

Hiers’s accusations, however, make it plausible that Hiers would have to retract some of his microaggressions beliefs in exchange for an apology. Hiers claims that university officials fired him because of his refusal to apologize and because he didn’t want to take part in additional diversity training. 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…. It is clear that there is no fixed star in the constitutional constellation. No official, whether high or low, is able to dictate how politics, nationalism or any other matter of opinion should be done. Citizens cannot force them to believe or say what they think is right. … [And] 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….

[A]ccording to the complaint, Schmidt … pressured [Hiers]He had to apologise for his opinions on microaggressions. According to the complaint Hiers was terminated from his employment by the university because he did not retract his critique of microaggressions. These allegations—again, taken as true and viewed in the light most favorable to Hiers—support a plausible inference of compulsion.

Finally, university officials claim that Hiers wasn’t required. Publically Declare his support of the microaggressions concept or any other Publicly “I am sorry for my conduct.” But they cite no authority, and the Court has found none, indicating that it matters whether the  government seeks to compel speech in public or in private. Contrary to what they claim, the precedent shows that when the government tries to force public employees to agree with a belief it does not violate the First Amendment. Period.