TMCC Dean Julie Ellsworth told Jensen not to circulate his fliers during the break at the event, but he refused to relent. Ellsworth warned him that there would be consequences for his “disobeying” her.
In the two performance reviews following the confrontation, Jensen’s department chair suggested he receive an “excellent” rating, but Ellsworth gave him “unsatisfactory” ratings for “insubordination.” That designation required Jensen to undergo review for possible termination.
District Court Judge Larry Hicks dismissed the case in 2023.
Now the Ninth Circuit has reversed Judge Hicks and found that Jensen is entitled to his day in court. Moreover, the panel found that Judge Hicks erred in refusing to allow Jensen to amend his complaint.
The panel applied the Pickering standard that we have previously discussed. The Court has held that, when a public employer retaliates against an employee for workplace-related speech, the First Amendment requires “balanc[ing] . . . the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
That standard, in turn, triggers a five-part inquiry:
“(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
The Ninth Circuit ruled that:
“Jensen’s criticism of the changes in TMCC’s mathematics curriculum addressed a matter of public concern. “[T]he preferable manner of operating [a] school system . . . clearly concerns an issue of general public interest.” Pickering, 391 U.S. at 571. The handout Jensen distributed at the Math Summit spoke to the preferable manner of operating TMCC, specifically its math department. Jensen described how the math department’s lowered standards would impact almost a third of TMCC’s degree and certificate programs and how graduates would consequently have inadequate math and technical skills when entering the job market. Jensen also grounded his criticism in the effect these lower standards would have on the community, noting that employers in the surrounding area subsidize TMCC through their taxes and expect competent graduates in return. The decline of TMCC’s educational standards and the resulting impact on the community is a matter of public concern.”
The ruling remands the case back to the District Court of Nevada, where Jensen’s First Amendment claims can proceed. He may also choose to amend his other claims as necessary to proceed alongside them. Jensen is also represented by Nevada attorney John Nolan, who brought the lawsuit and wrote the briefs filed with the Ninth Circuit.
Here is the opinion: Jensen v. Brown
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.
