The Stupid! It Burns! (appellate edition)

In her article Court Rules to Protect N.C. Professor's Right to Religious Speech (via Curious Presbyterian), Stephanie Samuel of the Christian Post reports that "The Fourth Circuit Court of Appeals ruled on Wednesday that a North Carolina university’s decision to deny a professor a promotion based on religious and political commentary – inspired by his conversion to Christianity from atheism – is unconstitutional." Samuel goes on to say that "A three-member panel ruled that University of North Carolina–Wilmington professor Mike Adams’ political activities constitutes protected, private speech."

We can read the Fourth Circuit's opinion at Adams v. Trustees of UNCW, No. 10-1413.

Update: Let me briefly summarize the Fourth Circuit's ruling.

First, neither the district nor the appellate court found that UNCW actually discriminated against Adams. The district court held that based on the evidence the plaintiff, Adams, presented to the court, it was not possible for Adams to win at trial on the basis of religious discrimination or disparate treatment. They therefore granted summary judgment in favor of the defendants, UNCW. The Fourth Circuit concurred: Adams simply did not have a case.

The district court held that Adams' speech was not protected, and therefore there was no basis for him to allege discrimination or retaliation based on the content of protected speech. The Fourth Circuit held that this decision was in error: Adams' speech was indeed protected. That is the sole extent of their ruling.

The district court, however, did not address whether or not that now-protected speech influenced UNCW's decision to deny Adams' promotion to full professor. The district court did not address whether UNCW's interests outweighed Adams' free speech interests. As the district court did not address these issues, the Fourth Circuit could not consider them: these questions are matters of legal fact, which an appellate court cannot determine.

The conclusion that Samuel draws, that the Fourth Circuit declared the UNCW's action unconstitutional, cannot honestly and logically be drawn from content the actual decision.

end of update

It is extremely important to understand first that the Fourth Circuit is reviewing a summary judgment of the district court. "A summary judgment is a determination made by a court without a full trial." Thus the Fourth Circuit is not considering the actual outcome of the case, but rather reviewing the district court's decision to deny a trial. Accordingly, the Fourth Circuit says,

Summary judgment is only appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. We construe the evidence in the light most favorable to Adams, the party opposing the Defendants’ summary judgment motion, and draw all reasonable inferences in his favor (11) (quotations and citations omitted).

The Fourth Circuit is not deciding whether or not Adams was discriminated against, but deciding whether the district court was correct in concluding that Adams could not possibly have been discriminated against.

The Fourth Circuit upholds the district court's summary judgment that Adams was not discriminated against on the basis of his religion:

Having reviewed the record in the light most favorable to Adams, we agree with the district court that he failed to set forth direct evidence of religious discrimination. ... We also conclude the district court properly held that Adams failed to satisfy his burden for proving discrimination using the burden-shifting analysis of McDonnell Douglas. ... Accordingly, we affirm the district court’s grant of summary judgment to the Defendants on Adams’ Title VII claim (14, 17).

The Fourth Circuit also upheld the district court's summary judgment that Adams was not denied equal protection:

Having reviewed the record, we agree with the district court’s conclusion that Adams’ evidence creates no issue of disputed fact that the Defendants’ decision to deny his promotion was the result of intentional or purposeful discrimination based on his religious beliefs, or that he was treated differently from others with whom he was similarly situated. ... Accordingly, the district court did not err in granting the Defendants’ motion for summary judgment on this claim (28-29).

The sole remaining issue is Adams' claims of First Amendment discrimination. The district court held that because Adams introduced his speech in his application for full professorship, it ipso facto became unprotected, "official" speech (19). Furthermore, the district court employed Garcetti v. Ceballos to make this determination. The Fourth Circuit, however, determined that the district court "misread Garcetti... The district court cited no precedent for this determination, that protected speech can lose its First Amendment protected status based on a later reading of that speech." The Fourth Circuit also observes that the "clear language" of Garcetti makes suspect its applicability to academia (19). Essentially, the Fourth Circuit held that the district court's summary judgment for the defendants was made for the wrong reason, and they remanded this issue back to the district court.

A plaintiff making a First Amendment discrimination must satisfy the three prongs of the McVey test. As quoted by the Fourth Circuit, the court must determine

(1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was a substantial factor in the employee’s [adverse employment] decision (18).

Since the Fourth Circuit observes that the district court considered only the first element, the Fourth Circuit likewise has ruled on only this element (19). Neither the district court nor the Fourth Circuit rule on the second and third prongs.

The Fourth Circuit's opinion is extremely narrow: holds only that that speech protected by the First Amendment does not become unprotected merely because the speaker references that speech in an official context (21). As the Fourth Circuit observes, "The Defendants were not precluded from examining the materials for a permissible purpose using lawful criteria. At the same time, their review of those materials can be examined for an impermissible discriminatory use." Note the Fourth Circuit's language here: the review of materials can be examined. The Fourth Circuit does not itself actually actually examine UNCW's review of the materials; it merely directs the district court to do so, rather than simply holding that the speech was unprotected.

I agree with the Fourth Circuit's opinion, and I think it is important to uphold free speech in this manner. There are indeed permissible and impermissible ways to officially examine the content of protected speech. UNCW may

consider [Adams' protected speech] not according to the content qua speech, but as factoring into the sweeping requirements of scholarship and service necessary to support his promotion to full professor.

Clearly the district court should find Adams speech meets the first prong of the McVey test (The Fourth Circuit observes that UNCW admits that the speech was protected when first uttered (20)) and examine the other two prongs.

But because the district court did not examine the other two prongs of the McVey test, it stretches credulity for Samuel to consider this decision a "big win" for Adams. We cannot infer that UNCW moved to hold Adams' speech unprotected because they would have lost had it been held protected. Cases at law are not wide-ranging academic discussions aimed at finding the deepest truths; a wise judge wants to decide the case on the narrowest grounds possible, and a wise lawyer does not open wider issues unless the narrower issues fail to support her case. Indeed because the district court found no reasonable case for religious discrimination, it seems likely that it will come to the same conclusion when it examines the First Amendment case in more detail, and will grant UNCW summary judgment on broader grounds.

If it stretches the bounds of credulity for Samuel to call this decision a "big win" for Adams, it breaks those bounds to conclude, "The Fourth Circuit Court of Appeals ruled on Wednesday that [UNCW's] decision to deny a professor a promotion based on religious and political commentary... is unconstitutional." The Fourth Circuit made no such ruling, and the ruling that it did make does not in any way draw any conclusions whatsoever about UNCW's decision to deny Adams' promotion. We cannot consider this statement an actual lie — Samuel accurately describes the the actual ruling — and we must consider the lede to be an inference. But this inference is so divorced from the actual content of the ruling that we must conclude that Samuel has not only failed to bend over backwards to avoid fooling herself, but that she has bent over backwards to try to fool herself and her audience. If not an actual lie, it is such an egregiously unsupported conclusion that we must consider it at best a grossly negligent disregard for intellectual integrity and at worst intellectual dishonesty.