Mt. Healthy's Enduring Commitment to First Amendment Rights on Campus

This post originally appeared on www.jurist.org on 7/29/2013.

Author: Alliance Defending Freedom Legal Counsel David Hacker

In June, the US Supreme Court decided University of Texas Southwestern Medical Center v. Nassar [PDF], holding 5-4 that plaintiffs must prove Title VII retaliation claims with but-for causation. Ho-hum, right? Well, it turns out the Court's opinion provides an important comparison between retaliation claims brought under Title VII and those of 42 USC § 1983. The Court's opinion indicates that § 1983 claims, which protect against retaliation undertaken in response to the exercise of constitutional rights, are not subject to but-for causation, but remain governed by "mixed-motive" causation. This difference ensures robust protection of academic freedom and free speech for students and faculty and is essential to preservation of the "marketplace of ideas" on campus.  

Students and faculty are regularly censored on today's public school and university campuses. Administrators empowered by explicit or implicit campus speech codes regularly retaliate against students and faculty who advocate views in conflict with campus orthodoxy. Savvy administrators often cloak their retaliatory actions in seemingly benign critiques of educational or professional incompetence. As a result, students and faculty who look for justice in the courts often resort to First Amendment retaliation claims brought under § 1983 in which they need show only that their speech was a "substantial" or "motivating" factor for the punishment. Nassar's adoption of a but-for standard for Title VII retaliation claims will not alter the mixed-motive framework for First Amendment retaliation claims, and courts should avoid the unjustified temptation to do so.

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