Professor’s Complaint That University Demoted and Disciplined Him Because of His Anti-DEI Statements and Blog Post Turned Away by Supreme Court

On January 22, 2024, the U.S. Supreme Court declined to hear a complaint from North Carolina State University (“University”) professor, Stephen Porter (“Porter”) alleging that he was discipline/demoted because he spoke out against campus diversity, equity, and inclusion measures. The Court’s decision lets a ruling by the Fourth Circuit Court of Appeals stand, claiming that Porter failed to show that the University officials retaliated against him for his DEI negative blog and comments. This case is one of a growing number of lawsuits pursued by college and university faculty/administrators claiming a free speech right to speak out against campus DEI measures. 

Porter, a tenured faculty member in graduate-level statistics and research methods, and a member of the University’s Higher Education Program Area (“HEPA”) admits that he has been outspoken concerning the University’s “focus on so-called social justice issues” and his concerns that higher education is abandoning rigorous methodological analysis in favor of “results-driven work aimed at furthering a highly dogmatic view of diversity, equity and inclusion.” Porter’s complaint is based on three statements or communications he made and which he believes are free speech protected:

• During a Department meeting regarding a proposal to add a question about diversity to student course evaluations, Porter expressed his concern about the question and suggested that the proposal was made without proper research. The University’s Office of Institutional Equity and Diversity learned of Porter’s statements and thereafter, issued a report referencing the incident and labeling Porter as a “bully.”

• His second communication related to a 2018 article in the Journal Inside Higher Education and criticized a faculty search committee chaired by Alyssa Rockenbach, a member of Porter’s Department. In response to the article, Porter emailed the following statement to all faculty in the Department, “Did you all see this? This kind of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work, Alyssa!”

• On September 3, 2018, Porter published a post on his personal blog entitled “ASHE (the Association for the Study of Higher Education) has become a Woke Joke.” Porter continued his post stating that research into topics for an upcoming ASHE conference shows that the conference has shifted from post-secondary research to social justice topics. 

Porter’s “Woke Joke” post was criticized by the president of ASHE during her keynote conference address. Additionally, he was told that students in the Department were having “strong reactions” to the keynote speakers comment and that the Department “needed to pay attention to them.” Around the same time, Porter also received a letter from the Department Chair complaining about his use of profanity during a Department meeting and his collegiality. Porter was removed from HEPA shortly after his 2019 evaluation because the Higher Education faculty were not able to make concerted progress on resolving issues within the Program. As a result of his HEPA removal, Porter was expected to teach a fifth course, although the requirement that he teach a fifth course was later rescinded.

Porter’s federal complaint alleges that the University violated his First and Fourteenth Amendment rights when they removed him from HEPA and excluded him from HEPA events including advising certain Ph. D students because of his “Woke Joke” blog post, the diversity survey question incident and the faculty hiring email. The district court initially dismissed Porter’s complaint stating he failed to state a First Amendment retaliation claim.

On appeal, the Fourth Circuit Court of Appeals, in examining Porter’s Free Speech claims, began its analysis by addressing whether Porter was speaking as a public employee and whether his speech related to “scholarship or teaching.” Therefore, “if [the speech] was not related to scholarship or teaching, then the speech was unprotected.”

Additionally, the Court stated that even if Porter’s speech was made as a citizen and addressed a matter of public concern, the Court would still need to “balance the interest of the employee in speaking freely with the interest of the government (the university) in providing efficient services.” Moreover, to state a claim of retaliation for engaging in speech, Porter would need to show that “but for” his protected speech, the University would not have removed him from HEPA and other related events and require him to teach an additional course.

Porter’s negative comments about adding a diversity question to the students’ classroom survey was not protected speech according to the Court. Porter was not teaching a class nor was he discussing topics he may teach or write about as part of his employment when making his comment. As such, the Court determined that Porter was speaking in his capacity as an employee, but it was not a product of his teaching or scholarship and thus unprotected.

Similarly, Porter’s sarcastic email about his colleague to all department faculty expressed no viewpoint that might be of public concern, “Instead it was an unprofessional attack on one of his colleagues” that was unrelated to his teaching or scholarship according to the Court. As such, this comment was also not free speech protected.

Finally, as to the “Woke Joke” blog, the Court stated that even assuming it amounted to protected speech, Porter’s complaint fails to allege a “causal connection” to state a claim for retaliation. The post occurred on September 3, 2018, and University administration made no mention of the post until November 19, 2018, and Porter’s removal from HEPA did not occur until July 5, 2019. Simply put, too much time elapsed between his Blog post and the claimed adverse action to support Porter’s retaliation claim.

Assertions of free speech to speak out against campus DEI measures by higher education officials are likely to increase. Oftentimes employees mistakenly believe that “free speech” protections encompass any speech or expressions. The above analysis strongly indicates that if the university official is not speaking on a topic related to his teaching or scholarship, it will not be entitled to free speech protection. The Supreme Court’s decision not to hear this case signals that it agrees with the Fourth Circuit’s analysis of this issue and its application of the “scholarship or teaching” standard for university professors. We will continue to monitor these disputes as they progress through the courts.