[00:00:01] Speaker 00:
Good morning, your honors.

[00:00:02] Speaker 00:
And may it please the court, Joshua Blish for the appellant, Stuart Regis.

[00:00:05] Speaker 00:
And I'd like to reserve five minutes of my time for rebuttal.

[00:00:07] Speaker 00:
I'll keep an eye on the clock.

[00:00:10] Speaker 00:
The University of Washington encouraged faculty to put land acknowledgement statement on their syllabi.

[00:00:15] Speaker 00:
But Professor Regis doesn't believe political statements have any business in course syllabi, and he disagreed with the university's message.

[00:00:23] Speaker 00:
So to make his point, he wrote a parody of the statement and put that on his syllabi instead.

[00:00:28] Speaker 00:
When some students and staff felt offended by Professor Regis' parody, the university punished him for it, violating the First Amendment.

[00:00:35] Speaker 00:
But disagreement is not disruption.

[00:00:38] Speaker 00:
This is true particularly in the university setting, where students are adults and where engagement with ideas that you disagree with is a feature, not a bug, of higher education.

[00:00:48] Speaker 00:
If the district court's opinion is allowed to stand, faculty will censor themselves for fear that any complaint might lead to their punishment.

[00:00:55] Speaker 00:
This court should reverse and direct entry of summary judgment for plaintiff

[00:00:58] Speaker 00:
for Appellant Sir Regis on all his claims.

[00:01:00] Speaker 00:
I understand Professor Regis has been...

[00:01:05] Speaker 04:
But I understand Professor Regis has been making comments about the land acknowledgement in other ways, like on the door of his office, and in his email signature, and perhaps in media visits.

[00:01:18] Speaker 04:
And so what is the relevance of that to this case?

[00:01:21] Speaker 04:
Which way does that cut?

[00:01:22] Speaker 00:
It's not relevant to this case, because right now we're focused on his speech in the syllabus.

[00:01:28] Speaker 00:
The government, just the same way that it can't expel a

[00:01:31] Speaker 00:
a hand biller to a far along sidewalk out of the public park.

[00:01:36] Speaker 00:
The government here cannot open up a syllabus for debate about a matter of public concern like the historical ownership of state land in the way that they did and then banish Professor Regis because of the viewpoint.

[00:01:49] Speaker 00:
And that's the second point, which is the problem here is not necessarily that he can put this on his door or save this on the sidewalk on campus.

[00:02:00] Speaker 00:
The university

[00:02:01] Speaker 00:
his option was to either parrot the university's position on his syllabus or say nothing.

[00:02:07] Speaker 00:
Instead, he chose to say something different and he got punished for it.

[00:02:10] Speaker 00:
And I'd also like to note that it's not exactly true that he has the ability to use his land acknowledgement statement anywhere else on campus.

[00:02:19] Speaker 00:
Dean Albritton, the Dean of the College of Engineering, noted at her deposition that

[00:02:26] Speaker 00:
Professor Regis wouldn't ask if he could hold up a sign with his land acknowledgement statement, for example.

[00:02:33] Speaker 00:
whether or not he would be subject to punishment would depend on the nature of any complaints that the university might have gotten.

[00:02:38] Speaker 00:
So yes, he's been allowed to during the pendency of the litigation include his line of acknowledgement statement on his email signature or on his door.

[00:02:46] Speaker 00:
But it's not exactly true that he's free to continue doing so without punishment indefinitely.

[00:02:51] Speaker 03:
Counsel, let me ask you this.

[00:02:52] Speaker 03:
I think I heard you just a minute ago suggest that we as the Court of Appeal could render a decision for your client without sending this back to the trial court.

[00:03:02] Speaker 03:
I there the case is just filled from my perspective with questions about who actually dropped out why the student took a leave of absence did so why the students sections and so on isn't that the quintessential kind of thing that 1 would send back to the district court the fact finder to make a determination of what the real facts are.

[00:03:22] Speaker 00:
I don't think so, Your Honor.

[00:03:24] Speaker 00:
I don't think that we have any disputes of material fact here.

[00:03:27] Speaker 00:
The parties agree about what basically happened.

[00:03:30] Speaker 00:
The parties agree that Professor Regis included his land acknowledgement statement on the syllabus.

[00:03:34] Speaker 00:
The parties agree that a certain number of students and staff complained because they felt offended.

[00:03:39] Speaker 00:
The dispute here is the

[00:03:43] Speaker 00:
What is the significance of those complaints of offense?

[00:03:47] Speaker 03:
Well, yes and no.

[00:03:49] Speaker 03:
There was one who allegedly dropped out, turned out might not have even been real.

[00:03:53] Speaker 03:
That's right.

[00:03:53] Speaker 03:
Another one that took a leave of absence, but nobody knows why.

[00:03:56] Speaker 03:
If the student did that because of Professor Regis and his actions, then that's important.

[00:04:01] Speaker 03:
If not, then why mention it in the first place?

[00:04:05] Speaker 03:
To me, there are open questions, material questions.

[00:04:08] Speaker 03:
that go to what the impact of Professor Regis' actions were, at least from the perspective of the university.

[00:04:15] Speaker 03:
Isn't that correct?

[00:04:18] Speaker 00:
Your Honor, as we noted in our opening brief, this is de novo review.

[00:04:21] Speaker 00:
And if the court sees it differently than the litigants did in their cross motions for summary judgment, that there are disputes of material fact certainly remanding to the district court for further development on that would be available to you.

[00:04:35] Speaker 01:
So what's the current status?

[00:04:37] Speaker 01:
If I have the facts right, there is a finding of violation but no sanctions.

[00:04:45] Speaker 01:
Is that where it stands?

[00:04:47] Speaker 00:
There are no official sanctions at the conclusion of the investigation, but that doesn't mean that there wasn't adverse action.

[00:04:54] Speaker 01:
I'm not necessarily questioning adverse action.

[00:04:59] Speaker 01:
What's the remedy you're seeking?

[00:05:01] Speaker 01:
To revoke the letter of discipline?

[00:05:05] Speaker 00:
That would be a great place to start.

[00:05:07] Speaker 00:
I think an injunction preventing the university from enforcing.

[00:05:10] Speaker 01:
Well, that's a stretch.

[00:05:16] Speaker 00:
Prevent the university from enforcing Executive Order 31 or prevent the university from punishing Professor Regis in the future for any other complaints of offense that students might submit.

[00:05:29] Speaker 01:
But as it sits now, it's a letter of reprimand, no sanctions.

[00:05:33] Speaker 01:
Is that right?

[00:05:34] Speaker 00:
That's not right.

[00:05:35] Speaker 00:
Your Honor, in the letter, Dean Albritton noted that if they received, if they, in their view, there was any other disruption, which as we know from the way that this case played out, any complaints means disruption to the university.

[00:05:49] Speaker 00:
So if there are further complaints, she will have, in the letter she said she would be forced to conclude that he intentionally violated Executive Order 31.

[00:05:56] Speaker 00:
And so that kind of,

[00:05:58] Speaker 03:
that the threat of future enforcement has a chilling effect would have a chilling effect on a person of ordinary firmness.

[00:06:12] Speaker 03:
pay increase as a result of this dispute?

[00:06:15] Speaker 00:
You did not misunderstand that, Your Honor.

[00:06:17] Speaker 00:
When the university subjected Professor Regis to the year plus long investigation as part of that, unbeknownst to Professor Regis at the outset even, his merit pay increase that he would have normally been entitled to was held in abeyance.

[00:06:33] Speaker 03:
So that gets to my colleague's question to you then.

[00:06:35] Speaker 03:
Isn't that something you would be looking for, or did he ultimately get that?

[00:06:39] Speaker 00:
He did receive his merit pay, but he is due interest.

[00:06:42] Speaker 00:
And I would also note that we've alleged emotional distress damages here too.

[00:06:48] Speaker 00:
Professor Regis was held on the hook for a period of I think 13, 14 months, unsure if he would be suspended, if his pay would be docked, or if he would be even fired while the university was investigating his alleged violation of university policy.

[00:07:06] Speaker 00:
Never mind that the university's investigation apparently concluded with an oral report

[00:07:11] Speaker 00:
from the investigative committee to administrators in October of 2022, but the university never informed Professor Regis about the conclusion of this investigation until the summer of 2023.

[00:07:22] Speaker 00:
So for this entire period of time, he had no idea what his future at the university would be.

[00:07:27] Speaker 00:
So so that in addition to the interest that he's owed the damages and the threat of future enforcement from that June 12th 2023 letter Those are all the damage.

[00:07:37] Speaker 03:
Those are the remedies that we remedying those damages and you have what you have pled for those I'm sorry, and I didn't you have you and your complaint you pled to recover those in some way.

[00:07:48] Speaker 03:
We did your honor.

[00:07:50] Speaker 03:
Yeah, I

[00:07:51] Speaker 01:
So I always have trouble in pickering cases and assessing how much disruption or potential disruption is enough.

[00:07:59] Speaker 01:
I mean, there are some cases that say kind of set a low threshold.

[00:08:04] Speaker 01:
Some seem to set a higher threshold.

[00:08:07] Speaker 01:
And I think it's dodges as a reasonable probability of disruption.

[00:08:16] Speaker 01:
Can you help me analytically tell me what would you think the measure of disruption is underpickering?

[00:08:23] Speaker 00:
Of course, your honor.

[00:08:23] Speaker 00:
And I think before we get into that specifically, I think it might be important to note at the outset the burden that's on the university when showing their interest in avoiding that disruption, which, you know, in Hernandez... I just want to know how much taking into consideration as their burden, how much disruption is enough?

[00:08:44] Speaker 00:
I think it's their interest in efficient operations, right?

[00:08:47] Speaker 00:
So we look to whether the employee has been able to continue his or her job duties, and we look to whether the employer's mission has been burdened in any way.

[00:08:57] Speaker 00:
And here, I think the key difference here between the University of Washington and many other Pickering cases, many other public employee speech cases,

[00:09:05] Speaker 00:
is that we have a public university campus.

[00:09:08] Speaker 00:
And the mission of a public university campus is to engage in the kind of debate of ideas and search for truth, that that's the whole reason we have academic freedom in the United States.

[00:09:24] Speaker 00:
The university, there's no, for 50 years, in fact, this court has helped.

[00:09:28] Speaker 01:
I get your argument, but I mean, in the university context, how much disruption

[00:09:34] Speaker 01:
satisfies the pickering burden?

[00:09:36] Speaker 00:
I think, Your Honor, if the professor is no longer able to teach, if there's something going on... No, I'm talking about the disruption to the students.

[00:09:45] Speaker 00:
So, are you asking, Your Honor, about that?

[00:09:49] Speaker 01:
Well, I think you understand my question.

[00:09:52] Speaker 00:
I think so.

[00:09:53] Speaker 00:
So I think the university has, you know, stated an interest in creating a welcoming environment for its students and to the extent that the university wants to provide other resources for its students to help out or to even

[00:10:05] Speaker 00:
share its own view about, in this case, Professor Regis' statement.

[00:10:10] Speaker 00:
The university is free to do so.

[00:10:12] Speaker 00:
But if it were to take action against Professor Regis or any other speaker based on the reactions of the listener, it would really just be effectuating an unconstitutional heckler's veto.

[00:10:26] Speaker 00:
to the extent that Professor Regis, in this case, was able to continue teaching his class.

[00:10:32] Speaker 00:
There were no walkouts.

[00:10:33] Speaker 00:
There were no major disruptions in his class.

[00:10:35] Speaker 00:
He's continued teaching throughout the pendency of this litigation.

[00:10:39] Speaker 00:
So the university's interest here, which is the efficient provision of its services, education, has not been disrupted in any way by Professor Regis's expression.

[00:10:49] Speaker 04:
And I think... Maybe part of what you're saying, which is more how I understood the briefs and gets back to some things that

[00:10:57] Speaker 04:
We've said in our cases a long time ago and they're kind of in tinker that, you know, the type of disruption that we're talking about underpickering when you're talking about a university professor saying something that may really rile people up is kind of not the type of disruption that can be really factored into this because the consequence of that would be that you're telling, you're essentially suppressing a viewpoint in an academic setting.

[00:11:22] Speaker 00:
That's right, Your Honor.

[00:11:22] Speaker 00:
And, you know, I think tinker is helpful, but I would also caution that,

[00:11:26] Speaker 00:
the kind of substantial disruption that Tinker talks about is not exactly, I wouldn't say is relevant to university setting where we have students who are adults and there's a lot more freedom for faculty and for students for freedom of expression than there is in the K-12 setting.

[00:11:41] Speaker 00:
And I think that's why the district court's reliance on cases like Downs and like Johnson was erroneous because those are K-12 cases, public employee speech cases where

[00:11:53] Speaker 00:
It involves teachers who either put up religious banners in their classroom or hang up bulletin boards.

[00:11:57] Speaker 00:
And there's just a lot more control in that case.

[00:12:00] Speaker 00:
The government interest is a lot stronger than it is in a case like Professor Regis's where it's a public university campus.

[00:12:07] Speaker 00:
And to go back to Judge Thomas's point about the disruption needed,

[00:12:14] Speaker 00:
I wanted to point to Dodge in particular, which I think is a really helpful case for this one, which is that in that case, a teacher, so again, the government interests are a little bit stronger, but a teacher wore a MAGA hat to a pub,

[00:12:29] Speaker 00:
to a professional development session.

[00:12:32] Speaker 00:
And a lot of the same things that we heard in this case, we heard in that case.

[00:12:38] Speaker 00:
So some of the teachers' colleagues felt shocked.

[00:12:41] Speaker 00:
They felt upset.

[00:12:42] Speaker 00:
They felt angry, scared, frustrated, and not safe.

[00:12:44] Speaker 00:
Those are a lot of the same kinds of complaints of offense.

[00:12:47] Speaker 00:
These are the same kinds of subjective feelings that students and staff in this case heard.

[00:12:52] Speaker 00:
But the Ninth Circuit and Dodge, those kinds of feelings are not the disruption

[00:12:58] Speaker 00:
But that's the normal disruption that occurs any time there's controversial speech.

[00:13:02] Speaker 00:
And it's not the kind of disruption that can justify it.

[00:13:05] Speaker 04:
Is there a suggestion, maybe in the state's brief, excuse me, the university's brief, that maybe a syllabus is different because it's government speech?

[00:13:14] Speaker 04:
Do you want to address that?

[00:13:15] Speaker 00:
I do, Your Honor.

[00:13:15] Speaker 00:
I think the district court rejected that argument, and I think rightly so.

[00:13:21] Speaker 00:
First, I think we can look to the facts in this case about why this isn't government speech.

[00:13:27] Speaker 00:
The university has a syllabus guideline policy, but there's no mandate.

[00:13:30] Speaker 00:
There's no mandate about content.

[00:13:33] Speaker 00:
That's all up to the professor's discretion.

[00:13:35] Speaker 00:
So a syllabus really is just the written work product of the faculty's in-class speech.

[00:13:40] Speaker 00:
And defendants themselves acknowledge that faculty have great flexibility in crafting their syllabi.

[00:13:45] Speaker 00:
So the idea that it might be mistaken for the government's own speech I think doesn't really play in this case.

[00:13:54] Speaker 03:
I want to follow up on the Hector Rito concept.

[00:13:58] Speaker 03:
As I read these briefs, I was struck by how sensitive the students or others were.

[00:14:09] Speaker 03:
Some people would call it woke, but they call it whatever they want.

[00:14:13] Speaker 03:
But the reality is you've got people who were

[00:14:17] Speaker 03:
upset, what standard do we use in determining whether there's a pickering issue or not?

[00:14:24] Speaker 03:
Let's say we had a room full of people who considered a triggering moment, if you will, as if the professor blues nose or the professor wore a MAGA hat.

[00:14:37] Speaker 03:
Can that possibly count in a pickering analysis?

[00:14:42] Speaker 00:
I don't think so, Your Honor, at least to the extent, I mean, it's something that you would consider in the sense that in a

[00:14:47] Speaker 00:
balancing test, you weigh lots of different things.

[00:14:49] Speaker 00:
But I don't think it has really any weight in a university setting.

[00:14:52] Speaker 00:
I think this court's cases make that very clear that a university setting is a place for a vigorous exchange of ideas.

[00:15:01] Speaker 00:
There's no compelling interest in a sedate academic environment.

[00:15:04] Speaker 00:
So to the extent that that goes to the government's interest in punishing or limiting the public, the professor's expression.

[00:15:11] Speaker 03:
I don't think that plays and I see that if you were in the university and you had a conservative professor and everybody else was liberal and they didn't like what the conservative said.

[00:15:22] Speaker 03:
You couldn't take that into account.

[00:15:24] Speaker 03:
Is that what you're saying?

[00:15:25] Speaker 00:
I'm saying the university would not have a compelling or sufficient interest in punishing that conservative professors.

[00:15:33] Speaker 00:
And that's the point.

[00:15:34] Speaker 03:
It goes to the interest then.

[00:15:36] Speaker 00:
That's exactly right.

[00:15:36] Speaker 00:
And that's the point of the First Amendment is to protect even unpopular speech and even in a place like a university campus, or especially, I'd say.

[00:15:43] Speaker 01:
But in this context,

[00:15:45] Speaker 01:
The difference is you have concerns about the native population.

[00:15:51] Speaker 01:
They're singled out.

[00:15:53] Speaker 01:
And the university is trying to recruit native students, trying to promote a welcoming environment.

[00:16:01] Speaker 01:
That's different from wearing a mega hat.

[00:16:05] Speaker 01:
That's one of the central, I guess, objects of most universities in the Northwest.

[00:16:14] Speaker 00:
I don't think it is any different, Your Honor.

[00:16:16] Speaker 00:
And yes, it has more relevance in the Northwest, but that's precisely why this is core political speech.

[00:16:21] Speaker 01:
Except that if it interferes with recruitment of indigenous and native students, then it does disrupt the mission of the university.

[00:16:32] Speaker 00:
But Your Honor, I don't think the university can rely on speculative.

[00:16:37] Speaker 01:
No, but I mean, Dodge says reasonable predictions of disruption.

[00:16:42] Speaker 00:
That's right, Your Honor, but this is, again, we're at a university where students are adults, where, again, it's... That's all you say.

[00:16:51] Speaker 00:
They are adults.

[00:16:52] Speaker 00:
All right, that was just a joke.

[00:16:53] Speaker 00:
I know.

[00:16:54] Speaker 00:
Usually, they are adults.

[00:16:55] Speaker 00:
Obviously, there are some under 18.

[00:16:57] Speaker 00:
But for the most part, this is a community of academics and people going to learn and people going to be exposed to new ideas.

[00:17:03] Speaker 00:
In Rodriguez versus Maricopa County, this court said that the First Amendment embraces a heated exchange on campus, even or perhaps especially,

[00:17:12] Speaker 00:
when they concern sensitive topics like race where the conflict and risk of insult is high.

[00:17:17] Speaker 00:
So it's a topic like this where it's especially important in the Pacific Northwest is still squarely protected and there needs to be plenty of breathing room for faculty and everybody else on a university campus to debate and disagree on those ideas.

[00:17:31] Speaker 00:
And I see I'm eating into my five minutes.

[00:17:33] Speaker 00:
If there are no further questions, I'll reserve that.

[00:17:36] Speaker 00:
Thank you.

[00:17:43] Speaker 02:
Good morning, Your Honors.

[00:17:49] Speaker 02:
May it please the Court.

[00:17:51] Speaker 02:
David Haas for the University Appellees.

[00:17:55] Speaker 02:
I think we should start with something we all agree with.

[00:17:59] Speaker 02:
Universities should take great care to avoid silencing their professors.

[00:18:05] Speaker 02:
And with respect to this case, the University of Washington did not silence Professor Regis.

[00:18:13] Speaker 02:
I would submit that in terms of the appellants brief and including some of the argument today, the actual facts of this case have been given short shrift and I think that that's because fundamentally the Pickering balancing is a fact driven inquiry.

[00:18:30] Speaker 02:
So let's unpack the facts briefly just for a moment.

[00:18:33] Speaker 02:
What happened here was beginning in the late winter of 2021, Professor Regis began using his

[00:18:41] Speaker 02:
land acknowledgement statement.

[00:18:43] Speaker 02:
He was using it on his signature block on his emails.

[00:18:48] Speaker 02:
He was emailing it to professors.

[00:18:49] Speaker 02:
He was encouraging discussion among professors about this.

[00:18:53] Speaker 02:
The university took no action.

[00:18:55] Speaker 02:
There was no objection to the content of his speech whatsoever.

[00:18:59] Speaker 02:
Then what happened was he included it on his syllabus and the reaction of the students was immediate.

[00:19:07] Speaker 02:
It was immediate and

[00:19:09] Speaker 02:
Professor Regis even acknowledged this in his own diary.

[00:19:14] Speaker 02:
He acknowledged that this, it blew up in a sense.

[00:19:19] Speaker 02:
And so the university took very limited action.

[00:19:23] Speaker 02:
And let's be clear about what that action was.

[00:19:26] Speaker 02:
The university removed the land acknowledgement statement from the electronic version of the 2022 winter syllabus.

[00:19:37] Speaker 02:
They also instituted an additional section of the class.

[00:19:41] Speaker 02:
And this was in response to a number of student complaints and concerns.

[00:19:46] Speaker 02:
They were concerned that Professor Regis could not be fair and impartial to them, that he potentially could react to certain categories of students differently in their class.

[00:19:59] Speaker 02:
And so in order to fulfill the university's educational mission, the university instituted

[00:20:06] Speaker 02:
a second section.

[00:20:08] Speaker 02:
That's all the university did.

[00:20:11] Speaker 02:
And in fact, that's where we were.

[00:20:13] Speaker 02:
Now, not withstanding the fact that the disruption, the fallout from what was included on the syllabus continued.

[00:20:20] Speaker 04:
And to be clear... Just maybe a clarification on that.

[00:20:23] Speaker 04:
It seemed that your clients would be willing to have him or would allow him to put it on a syllabus going forward?

[00:20:31] Speaker 02:
As long as it doesn't... Again, the reaction that the university took

[00:20:35] Speaker 02:
was a reaction to the disruption.

[00:20:37] Speaker 02:
It was not a reaction to the content.

[00:20:39] Speaker 04:
The reality is, and if I could just... But isn't the disruption related to the viewpoint?

[00:20:46] Speaker 04:
I mean, isn't that why there was disruption, that people did not like the view he was expressing?

[00:20:51] Speaker 02:
I think that you're right.

[00:20:54] Speaker 02:
Offense can lead to disruption, and that was what happened in this instance.

[00:20:58] Speaker 02:
But the university didn't target the content.

[00:21:01] Speaker 02:
The university took action

[00:21:04] Speaker 02:
in order to ensure that it could accomplish its educational mission.

[00:21:09] Speaker 04:
And you know that... And if the root of the disruption is the viewpoint, it doesn't... I'm not sure this distinction is that material.

[00:21:16] Speaker 02:
No, I think, in a sense, it is, Your Honor.

[00:21:19] Speaker 02:
It's a distinction that matters.

[00:21:21] Speaker 02:
And I think you can see that in how the facts played out here, because what happened was the only action that was taken was to remove the land acknowledgement from the syllabus and to institute a second section.

[00:21:34] Speaker 02:
Then the university did nothing else.

[00:21:36] Speaker 02:
And indeed, in terms of taking those actions, the university made clear and offered to him opportunities to express his views elsewhere.

[00:21:47] Speaker 02:
And nothing happened from there until basically the end of February, beginning of March.

[00:21:54] Speaker 04:
Because what happened was- I mean, there's an irony to this case a little bit.

[00:21:59] Speaker 04:
you're asking him not to put something on a particular syllabus, but nonetheless are allowing him to voice the view in all kinds of other forums.

[00:22:09] Speaker 04:
So it seems if the view is what's causing offense, and maybe he is a professor who causes offense in other ways as well, it seems the record might indicate that.

[00:22:19] Speaker 04:
What is the point of kind of stopping one aspect of this syllabus, but then having him be able to go out and promote the same view all over the place?

[00:22:28] Speaker 02:
Because the university, your honor, was faced with an enormous disruption.

[00:22:32] Speaker 02:
And so what it did was it took action simply to make clear to those people who were offended that the university was not sponsoring or endorsing this opinion.

[00:22:41] Speaker 02:
And they did it in a very limited way.

[00:22:44] Speaker 03:
Perhaps my memory is incorrect on this, but I thought that several senior officials

[00:22:52] Speaker 03:
in the apartment or whatever section was, visited with Professor Regis, asked him to take this down, told him that if he didn't do that that there would be consequences.

[00:23:03] Speaker 03:
Isn't that correct?

[00:23:04] Speaker 03:
That happened later, Your Honor.

[00:23:06] Speaker 02:
Basically what happened was after the land acknowledgement was removed from the syllabus and the second section was instituted

[00:23:16] Speaker 02:
Nothing else happened for the next two months, basically because the university was in the mode of assuring its students that they had a welcoming academic environment.

[00:23:29] Speaker 02:
Then, in late February of 2022, because he was disappointed that the university wasn't punishing him more and he wasn't getting more attention, Professor Regis emailed a listserv for the diversity inclusion section

[00:23:45] Speaker 02:
and indicated that he planned on including the land acknowledgement statement again on his spring syllabus.

[00:23:54] Speaker 02:
What happened then was the university's union that represents teaching assistants, they filed a complaint.

[00:24:03] Speaker 02:
They sent an email indicating that they believed that Professor Regis' actions

[00:24:09] Speaker 02:
violated EO 31 and basically and the collective bargaining agreement that the university had entered into with that union.

[00:24:20] Speaker 02:
That action then triggered an investigation because when such a complaint is received under the faculty code the university is required to take certain steps and one of the steps is to go out and have a discussion with the professor to see if

[00:24:39] Speaker 02:
the university and the professor can come to some sort of understanding or resolution.

[00:24:44] Speaker 03:
Can I just interrupt for this?

[00:24:46] Speaker 03:
I don't know where this fits in the timeline.

[00:24:48] Speaker 03:
If I understand correctly, there was also a request that as many students as possible could file complaints as well.

[00:24:55] Speaker 03:
Isn't that correct?

[00:24:56] Speaker 02:
No, Your Honor, that's not.

[00:24:58] Speaker 02:
That's basically what happened was when the issue first came up, because there had been so many complaints,

[00:25:09] Speaker 02:
Director Balazinska wrote an email to the students basically indicating that the university did not support the views that were expressed on the land acknowledgement, but assured them that in the university's views, they would be treated with fairness in Professor Regis's class.

[00:25:30] Speaker 02:
And then it said, if you find that you are not treated fairly, here are ways that you can

[00:25:39] Speaker 02:
file complaints.

[00:25:40] Speaker 02:
It was not an encouragement to file complaints.

[00:25:42] Speaker 02:
It was an assurance that in the university's view, they would be treated fairly, and if they weren't, there were avenues for them to make their views known.

[00:25:55] Speaker 02:
And how many students took that up?

[00:26:00] Speaker 02:
How many students made complaints?

[00:26:03] Speaker 02:
Well, the summary of complaints was about 11 pages long.

[00:26:07] Speaker 02:
I can

[00:26:08] Speaker 02:
It's summarized in the record in the Special Investigatory Committee's report.

[00:26:13] Speaker 02:
Basically, once faculty code 2571 is triggered, if there is no resolution reached between the university and the professor, then what happens is the dean is instructed to appoint a three-person panel, a three-professor panel for professors who have nothing to do

[00:26:35] Speaker 02:
with the school, the School of Engineering, or with Professor Regis, and they are instructed to go out and do a fact-finding investigation.

[00:26:46] Speaker 02:
And that was what happened.

[00:26:48] Speaker 02:
And in the course of that, to give you a sense of the disruption that they found, they found that there was, quote, evidence of severe disruption for Professor Regis' students and TAs, Allen School staff, peer mentors,

[00:27:04] Speaker 02:
and advisors, staff and advisors from other units and the UW Native community and that it lasted four weeks.

[00:27:12] Speaker 03:
Again, I take that conclusory statement, but how many students did they talk to or who filed complaints?

[00:27:22] Speaker 02:
I don't know the exact number and to be fair, many of those complaints were summarized by TAs.

[00:27:30] Speaker 02:
So the TAs reported multiple situations where they were having to address this with students.

[00:27:37] Speaker 02:
What they found was, again, lasting harm to the UW's reputation as a supportive space for native people and harm to UW's ability to recruit and retain native students in STEM.

[00:27:52] Speaker 02:
They found significant workload escalation.

[00:27:55] Speaker 03:
They made that determination as what, experts or what the students said or?

[00:28:00] Speaker 03:
How did that come about?

[00:28:02] Speaker 02:
They conducted a months-long investigation, talked to the students who had made complaints, talked to the TAs who had dealt with those complaints, talked to the various different people in the administration who had to deal with things like that, talked to the individuals who are responsible for Native American belonging and care in the university.

[00:28:25] Speaker 04:
But here's what we've said.

[00:28:26] Speaker 04:
This is what we've said back in 1975.

[00:28:30] Speaker 04:
The desire to maintain a sedate academic environment to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint is not an interest sufficiently compelling to justify limitations on a teacher's freedom to express himself on political issues.

[00:28:45] Speaker 04:
So how is your position consistent with that?

[00:28:47] Speaker 02:
Well, I think that that case is pre-pickering.

[00:28:50] Speaker 02:
And so we're dealing now in a pickering balancing situation.

[00:28:53] Speaker 02:
And I do agree with you in the sense that

[00:28:58] Speaker 02:
The interest has to be strong.

[00:28:59] Speaker 02:
But again, this court also has other significant cases that make clear that some form of limitation is actually permissible depending on how it's enacted.

[00:29:10] Speaker 02:
And I'll give you an example.

[00:29:14] Speaker 04:
For example, well, I will... You see where the line of questioning is going and I think it's kind

[00:29:24] Speaker 04:
the central issue in this case, which is, you know, when are we going to allow a university to discipline a faculty member for something he said in the context of an academic setting?

[00:29:36] Speaker 02:
Well, I think that, again, each case is going to have to be addressed instance by instance.

[00:29:40] Speaker 02:
And in this instance, remember, there was no punishment meted out.

[00:29:45] Speaker 02:
And so that's a critical part of this.

[00:29:47] Speaker 02:
There was no silencing, and there was no punishing.

[00:29:50] Speaker 04:
But I don't really see you arguing there was no adverse action in response to this.

[00:29:56] Speaker 04:
You have other arguments, but I didn't see you contending that sort of nothing had happened to him that would meet that element of the showing.

[00:30:04] Speaker 02:
Well, in terms of the restrictions on speech, it was very, very narrow.

[00:30:08] Speaker 02:
It's hard to imagine a narrower restriction on speech than literally just taking it off a syllabus while offering numerous

[00:30:17] Speaker 02:
opportunities for the professor to express his views.

[00:30:20] Speaker 02:
In terms of the actual punishment, no, I believe that we take the position that there really was no adverse action here.

[00:30:26] Speaker 02:
Because the adverse action that was alleged, that is alleged, is taking the land acknowledgement statement off the syllabus.

[00:30:38] Speaker 02:
That's not punishment.

[00:30:39] Speaker 02:
That's a restriction on speech.

[00:30:40] Speaker 02:
So we'll set that to this.

[00:30:42] Speaker 03:
But counsel, here you've got a professor that had

[00:30:47] Speaker 03:
big class and about a third of them got moved into a new class.

[00:30:51] Speaker 03:
That's kind of a put down.

[00:30:53] Speaker 03:
He also apparently had a merit pay that was deferred.

[00:30:58] Speaker 03:
I gather the university doesn't dispute that.

[00:31:00] Speaker 03:
So there was, there were consequences.

[00:31:03] Speaker 03:
Now I understand you don't view them as being very significant, but in the context of you have a contrarian professor, which is theoretically in the old days was the quintessential nature of a university.

[00:31:15] Speaker 03:
You say that's not a problem and that there's no speech control here.

[00:31:19] Speaker 03:
Is that right?

[00:31:20] Speaker 03:
Correct, your honor.

[00:31:21] Speaker 02:
Again, the university literally in the first request to Professor Regis to take the land acknowledgement statement off the syllabus, Director Balazinska expressly stated that Professor Regis was, quote, welcome to voice your opinion and opposition to land acknowledgements as you have in the past in other settings.

[00:31:44] Speaker 02:
Literally, in the email where she told him that the land acknowledgement statement had been taken off the syllabus, she said, it goes without saying.

[00:31:52] Speaker 02:
You have the right to have discussions about land acknowledgments.

[00:31:56] Speaker 02:
The record makes clear.

[00:31:57] Speaker 02:
I mean, including with students?

[00:31:59] Speaker 04:
Including the students.

[00:32:00] Speaker 04:
Right.

[00:32:00] Speaker 04:
So which way does this cut?

[00:32:01] Speaker 04:
Because it seems to me, you know, we don't usually say, well, you can put out your message on the radio, but not the TV.

[00:32:08] Speaker 04:
And so that's fine.

[00:32:09] Speaker 02:
Oh, no.

[00:32:09] Speaker 02:
I think that this cuts strongly in the pickering balance.

[00:32:14] Speaker 02:
weighs heavily on the university's favor.

[00:32:16] Speaker 02:
Because again, you need to look at the level of restriction on speech versus the punishment at issue.

[00:32:24] Speaker 02:
It's a balancing test.

[00:32:26] Speaker 03:
But consider the Native American issue, for example.

[00:32:30] Speaker 03:
Here you have a professor that is on another syllabus, on his signatures and so on.

[00:32:36] Speaker 03:
This would be well known.

[00:32:38] Speaker 03:
Says exactly the thing that the university took down on the electronic syllabus.

[00:32:42] Speaker 03:
Why wouldn't that undercut the feelings of Native Americans as much as putting it on his own syllabus?

[00:32:49] Speaker 02:
Well, it may, but the goal of the university, it may undercut his credibility.

[00:32:55] Speaker 03:
But again, remember that- I don't mean his credibility.

[00:32:57] Speaker 03:
I'm saying you've indicated that it was a very strong desire of the university, very understandable that you want to foster Native American enrollment.

[00:33:07] Speaker 03:
So take this off.

[00:33:08] Speaker 03:
You're saying this just fends people.

[00:33:10] Speaker 03:
But if they know about the other syllabus and about the signature line and all the other places where he said this, he's still a professor.

[00:33:18] Speaker 03:
How do you gain anything by just taking it off of one syllabus?

[00:33:21] Speaker 03:
And why isn't that really an attempt to riddle his speech?

[00:33:26] Speaker 02:
Because when you look at many of the of the concerns and the complaints that were raised by students, the inclusion of the statement on the syllabus was taken as

[00:33:37] Speaker 02:
an endorsement of the notion by the school.

[00:33:40] Speaker 02:
One of the reasons why it wasn't taken off later was because when the university had to spend all of this time, number one, taking it off, making it clear that this was not the university's position, doing outreach to students to make clear that they were in a safe community, that's why when he included it again, it wasn't taken down because the university had taken action to minimize any disruption from that.

[00:34:05] Speaker 04:
And so this was not- It's hard to see how anybody would interpret this as anything other than his views.

[00:34:10] Speaker 04:
He says, I acknowledge, and to your point, the university countered his speech with its own speech.

[00:34:16] Speaker 04:
So I'm not sure why anyone would have interpreted this as somehow the university endorsing it.

[00:34:21] Speaker 04:
It seems everybody would have understood the university very much did not endorse it.

[00:34:25] Speaker 02:
Well, simply, Your Honor, because it is a university document.

[00:34:28] Speaker 02:
It's a document that the university instructs the professors to put on it, and whether or not

[00:34:34] Speaker 02:
you would have interpreted that way, the complaints and the concerns that were expressed by student tied it directly to the inclusion on the syllabus.

[00:34:43] Speaker 02:
And again, this is the balance.

[00:34:45] Speaker 02:
I would submit that in terms of if you wanted to teach a class to college administrators in how to deal with things like this and how to reach that balance, this is a situation where the university found the perfect balance because they took minimal action to make clear that

[00:35:05] Speaker 02:
The university does not endorse this.

[00:35:08] Speaker 02:
They did outreach to make sure that the native students understood that the university supported them, all the while allowing Professor Regis to express his views, which many people continued to find uncomfortable or disagree with.

[00:35:26] Speaker 02:
But he wasn't silenced.

[00:35:27] Speaker 04:
But I mean, if Professor Regis

[00:35:29] Speaker 04:
Next semester expresses these views to a class and the same degree of disruption occurs.

[00:35:36] Speaker 04:
Wouldn't your position require the rule that he couldn't say that statement in class?

[00:35:42] Speaker 02:
I think that, Your Honor, that would be a different case and a new situation.

[00:35:46] Speaker 02:
I think that it's unlikely in this instance because this issue has gotten enough attention and the university has done its work to prevent that from happening.

[00:35:55] Speaker 02:
But all you can look at are the facts as they have unfolded so far.

[00:35:59] Speaker 02:
And the facts as they have unfolded so far is basically demonstrate that the university took every opportunity and every possibility to prevent him from being silenced while also making clear that the university did not endorse this view.

[00:36:17] Speaker 02:
And, Your Honor, just a couple of, in terms of, I'd like you to consider

[00:36:23] Speaker 02:
the court's decision in Barone versus City of Springfield.

[00:36:26] Speaker 02:
And this was one that was not mentioned in the briefs.

[00:36:30] Speaker 02:
And quite frankly, I came to it when I found out who the panel was, because it's a decision that Judge Smith offered.

[00:36:39] Speaker 02:
In that case, the plaintiff was a victims' rights advocate, and she criticized the police department.

[00:36:46] Speaker 02:
And so she was put on suspension.

[00:36:48] Speaker 02:
When she was brought back, she was asked to sign

[00:36:52] Speaker 02:
an agreement where she would not criticize the police department anymore and she refused to sign it and she was fired.

[00:37:00] Speaker 02:
And the decision made clear that such a blanket prohibition on the Plaintiff's Speech was not justified because it literally silenced her and the punishment that accompanied the ban was to be fired.

[00:37:11] Speaker 02:
But while striking down the prohibition on speech, the decision notes that, and I'm going to quote now,

[00:37:16] Speaker 02:
Concerns about potentially disruptive speech may justify a narrower restriction on speech.

[00:37:24] Speaker 02:
But paragraph 5G's sweeping restriction goes well beyond a permissible restraint under Pickering.

[00:37:31] Speaker 02:
And that case cites Dibble versus Chandler.

[00:37:35] Speaker 02:
And that's important because their argument has been made about a heckler's veto.

[00:37:39] Speaker 02:
And the decision in Dibble versus City of Chandler, which is 515, F3rd, 918,

[00:37:46] Speaker 02:
takes that issue on directly, because that involved a police officer who had put out content on an adult website.

[00:37:55] Speaker 02:
And the argument was that by allowing the offense that the community had over that content amounted to allowing a heckler's veto.

[00:38:08] Speaker 02:
And the decision goes on and it says, we are not galleied by the Dibble's claim that Ronald Dibble is being subjected to some kind of heckler's veto.

[00:38:15] Speaker 02:
Worries about a heckler's veto have generally dealt with the restriction of a citizen's speech based on the anticipated disorderly reaction by members of the audience.

[00:38:25] Speaker 02:
So restrictions on a citizen's speech.

[00:38:28] Speaker 02:
Those worries do not directly relate to the wholly separate area of employee activity that affect the public's view of a governmental agency in a negative fashion.

[00:38:40] Speaker 02:
and thereby affect the agency's mission.

[00:38:43] Speaker 04:
Right.

[00:38:43] Speaker 04:
I mean, I guess this gets to the question of are all government employers treated the same under Pickering, right?

[00:38:50] Speaker 04:
Maybe a university, the analysis might look a little different.

[00:38:54] Speaker 02:
And it does look a little bit different.

[00:38:56] Speaker 02:
But there is an ongoing open constitutional question about the balance between Garcetti and Demers.

[00:39:04] Speaker 02:
And I would point you to a decision that was issued

[00:39:10] Speaker 02:
just 10 days ago, and this is out of the Seventh Circuit, and it's actually a little unusual because it was on a petition for rehearing en banc, and rehearing en banc was denied.

[00:39:22] Speaker 02:
And Judge Easterbrook took the unusual position of issuing a statement along with the denial of en banc hearings.

[00:39:32] Speaker 02:
And he quotes in this, Sweezy versus New Hampshire, which is a case that has been addressed by the parties in this.

[00:39:38] Speaker 02:
And he quotes Sweezy.

[00:39:40] Speaker 02:
He says, it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment, and creation.

[00:39:48] Speaker 02:
It is an atmosphere in which there prevail the four essential freedoms of a university.

[00:39:54] Speaker 02:
To determine for itself the academic grounds, to determine for itself on academic grounds who may teach,

[00:40:03] Speaker 02:
what may be taught, how it shall be taught, and who may be admitted to study.

[00:40:09] Speaker 02:
And he then goes on and this is Easterbrook now says, Sweezy introduced the idea of academic freedom to the pages of the United States reports.

[00:40:18] Speaker 02:
Although a majority did not state clearly who possesses that freedom, the views of Justice Frankfurter and Harlan writing in concurrence have persuaded many other federal judges that the university itself,

[00:40:31] Speaker 02:
is entitled to freedom from outside control even if a faculty member seeks to enlist the aid of non-academic governmental actors.

[00:40:42] Speaker 02:
A university's ability to evaluate and respond to faculty members' speech is essential to the educational enterprise.

[00:40:51] Speaker 02:
An evaluation of every teacher's speech is an essential part of academic administration and deans rather than jurors

[00:40:59] Speaker 02:
should resolve disputes about those matters.

[00:41:02] Speaker 02:
So this is an open constitutional question.

[00:41:05] Speaker 02:
We've obviously briefed the Demers issue.

[00:41:07] Speaker 02:
What I would say is this.

[00:41:09] Speaker 02:
The difference that I think you all are getting at is why is there a difference between the syllabus and the other statements that he's made?

[00:41:18] Speaker 02:
And the difference there in this particular instance was it was the views of the administration that the best way to deal with this was to take the minimal action

[00:41:30] Speaker 02:
of removing the syllabus to signal that this was not endorsed by the university while still permitting Professor Regis to express his views and also doing outreach to make sure that Native students and other people who were affected were welcome.

[00:41:49] Speaker 04:
We let you go a little over your time and need to be mindful of that.

[00:41:52] Speaker 04:
I want to see if my colleagues have any further questions for you.

[00:41:56] Speaker 04:
Okay, thank you very much.

[00:42:06] Speaker 00:
I'd like to start with my friends on the other side spending a lot of time talking about the severity of the university's actions, claiming that they didn't silence because he's been allowed to during the pendency of the litigation continue using his land acknowledgement statement.

[00:42:20] Speaker 00:
What the university did isn't actually that bad here.

[00:42:23] Speaker 00:
And I think that goes much more towards the adverse action element of a retaliation claim than it does the pickering balance and whether or not the speech is protected in the first instance.

[00:42:32] Speaker 00:
In the pickering balance, we look

[00:42:34] Speaker 00:
the public employee's interest balanced against the government interest.

[00:42:40] Speaker 00:
And the nature or the strength of the government's response really goes more towards adverse action.

[00:42:45] Speaker 00:
And as you noted during my colleague's time, adverse action wasn't discussed at the district court.

[00:42:54] Speaker 00:
It wasn't really argued by the other side, but even still,

[00:42:57] Speaker 00:
It is met in this case.

[00:42:59] Speaker 00:
It's an objective standard in the Ninth Circuit.

[00:43:01] Speaker 00:
It's whether the government's actions would chill a reasonable person.

[00:43:05] Speaker 00:
And things like an unwarranted disciplinary investigation or a threat of disciplinary action, both of which happened here, can be adverse employment action.

[00:43:13] Speaker 00:
And that comes from this case's, or this court's case in Casaltzer.

[00:43:18] Speaker 01:
So what class is this?

[00:43:20] Speaker 00:
I'm sorry?

[00:43:21] Speaker 01:
I'm not sure.

[00:43:21] Speaker 01:
I saw it on the record.

[00:43:22] Speaker 01:
What class is this?

[00:43:24] Speaker 01:
It's a coding class?

[00:43:25] Speaker 00:
It was a introductory computer science course.

[00:43:30] Speaker 00:
So Judge Thomas, you asked how much disruption would be necessary.

[00:43:34] Speaker 00:
I note that whatever it is, we don't have it here.

[00:43:38] Speaker 00:
Everything that the university relies on is reaction to Professor Regis' viewpoint.

[00:43:45] Speaker 00:
It's students and staff who have felt offended.

[00:43:49] Speaker 00:
And those are their feelings, but that's all it is.

[00:43:52] Speaker 00:
offense cannot be disruption, especially in the university context.

[00:43:58] Speaker 00:
And the university's reaction to that, what they call a massive disruption, is still a viewpoint-based action.

[00:44:06] Speaker 00:
Speech burden based on audience reactions is just government hostility in a different guise.

[00:44:14] Speaker 01:
No, but I think if I understand the university's argument is that they are trying to reach out to native students and STEM

[00:44:22] Speaker 01:
to encourage them to pursue, you know, STEM-related education.

[00:44:29] Speaker 01:
And so if I understand, I'm not endorsing their argument, I'm just saying.

[00:44:34] Speaker 01:
So as I understand it, what they're saying is don't put it on the syllabus because we are trying to encourage natives.

[00:44:40] Speaker 01:
And if the disruption is the native students don't participate in STEM or drop out, that's a disruption.

[00:44:47] Speaker 01:
So what's your response?

[00:44:48] Speaker 00:
If the university wants to provide other outreach like they say that they did to help encourage that, that's in their interest.

[00:44:55] Speaker 00:
But they can't do it by burdening the protected expression of one of its faculty.

[00:44:59] Speaker 01:
Do you think that if he had put on women can't code as part of his syllabus that that would be disruptive?

[00:45:07] Speaker 00:
If he had included a link to his article, I don't think it would have been disruptive.

[00:45:10] Speaker 00:
I think it's still speech.

[00:45:10] Speaker 01:
Do you think that's protected?

[00:45:12] Speaker 00:
I think it is.

[00:45:12] Speaker 01:
It's still speech on a matter of- Even though women are going to have to take introduction to it?

[00:45:17] Speaker 00:
They would, and if they're- Okay, I got your argument.

[00:45:20] Speaker 00:
They would click through to the article and they would read his viewpoint, and I think it's important to note that

[00:45:25] Speaker 00:
his administrators had no reason to believe that Professor Regis would actually discriminate or retaliate against anybody.

[00:45:31] Speaker 00:
They didn't have those concerns themselves.

[00:45:33] Speaker 01:
No, they were concerned the students.

[00:45:35] Speaker 00:
And so they could reach out to students and say, hey, Professor Regis, he's not going to discriminate against anybody.

[00:45:41] Speaker 00:
He's got these opinions.

[00:45:43] Speaker 00:
We don't agree with him.

[00:45:44] Speaker 00:
But we can assure you, he's going to be treated fairly.

[00:45:47] Speaker 00:
And about that Balazinska email, I would note that, yes, they provided that avenue.

[00:45:53] Speaker 00:
for students to submit complaints, and they take umbrage with the fact that, you know, we think that they were encouraging complaints.

[00:46:00] Speaker 00:
But behind the scenes, Professor Balazsinska was emailing with other colleagues and said that getting additional complaints would help them take action against Professor Regis.

[00:46:09] Speaker 00:
So it's impossible not to view the email to students and her email with other faculty separate from one another when, you know, looking into the government's actions.

[00:46:21] Speaker 04:
to ask you to wrap up here since you've exceeded your time.

[00:46:24] Speaker 04:
Why don't you make a brief concluding remark?

[00:46:26] Speaker 00:
Yeah, I'd just like to note one more time or, you know, one last time if this court is interested in remanding for further considerations, I would just request that you do so with instructions to consider the university's special place in our constitutional tradition and thank you for your time.

[00:46:41] Speaker 04:
Thank you.

[00:46:46] Speaker 00:
Okay.

[00:46:47] Speaker 04:
Regis' case is