Reported / Citable
Background
Stuart Reges, a teaching professor of computer science at the University of Washington, objected to the university’s recommendation that faculty include an indigenous land acknowledgment in their syllabi. In response, he inserted a counter-statement in his own syllabus expressing disagreement with the practice. The university investigated Reges under its anti-discrimination policy (Executive Order 31), removed the statement from his syllabus, reprimanded him, and threatened further discipline.
Reges sued university administrators under 42 U.S.C. § 1983, alleging First Amendment retaliation. The district court granted summary judgment to the university, finding the syllabus statement was government speech not protected by the First Amendment. Reges appealed.
The Court’s Holding
The Ninth Circuit reversed. Writing for a divided panel, the majority held that Reges’s syllabus statement was protected employee speech on a matter of public concern, not unprotected government speech. The court applied the Pickering balancing test and found that the university’s interest in enforcing its anti-discrimination policy did not outweigh Reges’s First Amendment interest in commenting on a contested public issue through his course syllabus.
The court further held that EO-31, as applied to Reges’s speech, was unconstitutionally vague and overbroad. The policy’s broad prohibition on conduct that creates a “hostile environment” gave administrators unfettered discretion to punish disfavored viewpoints, and the university offered no evidence that Reges’s syllabus statement actually created a hostile environment for students.
Judge Thomas dissented in part, arguing that the university had a legitimate interest in controlling the content of official course materials and that the majority’s analysis undercut institutional academic freedom.
Key Takeaways
- A public university professor’s syllabus commentary on a contested social issue is protected employee speech under the First Amendment, not government speech — at least when the university has not mandated specific syllabus content.
- The Garcetti government-speech doctrine, which strips First Amendment protection from speech made pursuant to official duties, does not automatically apply to faculty course materials at public universities.
- Anti-discrimination and anti-harassment policies that give administrators broad discretion to punish speech creating a “hostile environment” may be unconstitutionally vague and overbroad as applied to faculty expression on public issues.
- The dissent’s emphasis on institutional academic freedom signals ongoing tension between individual faculty speech rights and university control over curriculum.
- Though this case arose at a Washington university, the holding binds all Ninth Circuit public institutions, including California’s UC and CSU systems.
Why It Matters
This is the Ninth Circuit’s most significant recent statement on the intersection of faculty free speech, DEI-related institutional policies, and the Garcetti government-speech exception. For California’s public universities — the UC and CSU systems — the holding means that recommended (but not mandated) syllabus content cannot become a basis for disciplining faculty who express dissenting views. Administrators who rely on broad anti-harassment policies to suppress faculty speech on public issues risk constitutional liability.
The decision will likely intensify the national debate over academic freedom and DEI policies. For university counsel, it requires a careful review of how anti-discrimination policies are applied to faculty expression — particularly where the speech addresses a matter of public concern and does not demonstrably harm students. The sharp dissent suggests this issue may warrant en banc or Supreme Court review.