From the Courts
A community college faculty member provided evidence that he was retaliated against on the basis of his comments at a board meeting in violation of the First Amendment.
Despite a prohibition on public comment, David Michael Smith, a professor at College of the Mainland, briefly voiced his disagreement with the college president’s assertions at a board meeting. The college president subsequently complained to Smith’s supervisor that Smith was disruptive, unprofessional, and violated the Faculty Code of Professional Ethics found at the college’s policy DH(EXHIBIT). Smith was formally reprimanded and placed on a conduct correction plan. He was later given a negative performance evaluation referencing the reprimand and was excluded from a hiring committee convened by his supervisor.
Smith sued the college and the college president claiming that he was retaliated against for his comments at the meeting in violation of the U.S. Constitution First Amendment. The college filed a motion for summary judgment arguing that Smith failed to show that he suffered an adverse employment action, that his interest in commenting outweighed the governmental interests of the college, and that his comments motivated an action against him.
The court disagreed. The court determined that the reprimand constituted an adverse employment action because it had the reasonable likelihood of affecting Smith’s pay, promotion opportunities, or other conditions of employment. Further, the court found the restriction on public comment to be a valid, content-neutral policy; however, the court did take issue with the punishment for violating the restriction through the application of a discretionary respectful conduct standard found in the ethics code. Finding a lack of evidence that the comments interfered with the operation of the college or Smith’s completion of his duties, the court concluded that the college’s interests did not outweigh Smith’s interest in making the comments. Finally, the court determined that Smith provided evidence that his comments motivated the discipline, citing the progression of the events at the meeting, the controversial nature of the subject matter, and the fact that the subject of Smith’s criticism, the college president, filed the complaint resulting in the reprimand. Because all of the prongs of the analysis were resolved in Smith’s favor, the court denied the college’s motion for summary judgment. Smith v. The College of the Mainland, No. 3-11-286, 2012 WL 6020066 (S.D. Tex. Dec. 3, 2012) (mem.).