Another Hopeful Sign: Hiers v. Board of Regents

In my last piece, I covered the recent decision in Coalition for TJ v. Fairfax County School District, where the court declared that a new admissions process for a highly-regarded STEM-focused high school was unconstitutional, finding that scrapping the old merit-based process in favor of “racial balancing” (based on Kendian “equity” principles) was clearly illegal under decades of Supreme Court authority. I also noted that individual public administrators could face personal liability for their involvement in adopting such “woke” programs, as the clear nature of the law puts their usual qualified immunity in serious jeopardy.

Another recent decision (Hiers v. Board of Regents of the University of North Texas) amplifies this latter point. The Hiers case should serve notice to public university administrators that while wokeism may be the accepted narrative of the faculty lounge, the law is not so easily ignored—and that continued violations may well result in their being held personally liable.

Nathaniel Hiers was an adjunct mathematics professor at the University of North Texas (UNT), teaching linear algebra. As described by the court:

An anonymous person had placed in the mathematics faculty lounge a stack of flyers, each of which warned faculty against committing “microaggressions” on college campuses. The flyer defines microaggressions and provides examples of statements characterized as microaggressions that it suggests faculty should avoid using in the workplace. For instance, statements such as “I believe the most qualified person should get the job” and “America is the land of opportunity” are cited as microaggressions promoting the “[m]yth of [m]eritocracy.”

Professor Hiers reacted with the following chalkboard message:

Note that Professor Hiers did not remove or otherwise seek to censor speech. Instead, he simply responded to anonymous speech in the faculty lounge with his own anonymous speech in that same venue disagreeing with it. Nothing wrong with that, right?

[Related: “Forbidden Campus Speech”]

Wrong. Like many college campuses today, the UNT administration apparently believes the First Amendment and academic freedom are nonexistent if the speaker dares disagree with the gospel of wokeism. As tenured UNT music professor Timothy Jackson learned the hard way, even purely academic dissent from the woke agenda (in his case, publishing a symposium piece debunking the poorly-reasoned claim by a CRT advocate that the work of famous music theorist Heinrich Schenker promotes “a white racial frame”) will get you cancelled at UNT, with UNT administrators joining the cancel culture mob. (Professor Jackson sued UNT and has recently obtained a favorable ruling allowing his lawsuit to proceed.)

Earlier this month, the UNT administration literally stood by while Antifa physically threatened and assaulted a visiting speaker and the student organizer of the presentation (who continues to receive death threats). Beyond UNT President Neal Smatresk tut-tutting such behavior as “not reflective of the UNT I know and love,” UNT has taken no action against those involved.

In the case of Professor Hiers, his chalked statement (which everyone agrees was a joke) led Chair of the Mathematics Department (and likely future Lysenko Award nominee) Ralf Schmidt to email the entire department:

Would the person who did this please stop being a coward and see me in the chair’s office immediately. Thank you.

Hiers promptly identified himself as the author, replying:

I’ll be by in a few minutes. I don’t see anything “cowardly” about commenting on silly political fliers left lying in the lounge. If it’s fine for someone to leave stacks of them around the lounge, criticizing them should be fine too.

When they met, Schmidt scolded Hiers, terming criticism of the microaggression flier “stupid” and “cowardly.” He also demanded an apology, which Hiers refused to issue. The next week, despite having previously been invited to teach again the following semester, Hiers was informed that UNT would no longer employ him.  In response to Hiers’ request for an explanation, Schmidt sent the following letter:

Dear Nathaniel,

My decision not to continue your employment in the spring semester was based on your actions in the grad lounge on 11/26, and your subsequent response.

In our conversation you characterized the flyers that upset you as political statements. I looked at them in detail, and they are anything but. Every example of a microaggression listed there makes very much sense, and I am disappointed about your general dismissal of these issues and that you failed to put yourself in the shoes of people who are affected by such comments.

I also think that leaving behind a chalkboard message like you did is not a benign thing to do. Think about how people who see this might react. They don’t know who wrote this; it might be a faculty member, grad student or anyone else. The implicit message is, “Don’t you dare bringing [sic] up nonsense like microaggressions, or else.” This is upsetting, and can even be perceived as threatening.

Finally, I was disappointed at your response during our conversation. Everyone makes mistakes, and I’m all for forgiveness if actions are followed by honest regret. But you very much defended your actions, and stated clearly that you are not interested in any kind of diversity training.

In my opinion, your actions and response are not compatible with the values of this department. So with regret I see no other choice than to not renew your employment. Please know it gives me no pleasure; in fact, we were counting on you, and it causes considerable difficulties to replace you as a teacher.

Sincerely, Ralf Schmidt

[Related: “How Princeton Eviscerated Its Free Speech Rule and Covered It Up”]

Not surprisingly, Hiers responded to this open retaliation and viewpoint discrimination with a federal lawsuit against UNT, Schmidt, and various other administrators. The defendants filed the usual Rule 12(b)(6) motion to dismiss, with the individual defendants invoking qualified immunity. In its opinion largely denying this motion, the District Court made a full-throated defense of free speech and castigated the UNT administration for ignoring well-settled law:

Writing for himself and Justice Brandeis nearly a century ago, Justice Oliver Wendell Holmes extolled what he viewed as a foundational tenet of freedom of expression in our country: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” Since that time, the Supreme Court has consistently recognized that the Founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

This case implicates these bedrock constitutional principles protecting freedom of thought and expression. The setting is a public university, the University of North Texas (“UNT”), and the speaker is a mathematics professor at that university, and a public employee, Nathaniel Hiers. Amidst a slew of constitutional claims asserted by Hiers following his departure from UNT, a single question is paramount: What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer?

. . .

[U]niversity officials argue that Hiers “was never required to publicly announce his support for the concept of microaggressions or to otherwise publicly apologize for his conduct.” But they cite no authority, and the Court has found none, indicating that it matters whether the government seeks to compel speech in public or in private. To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period. So this argument also fails.

At bottom, Hiers has plausibly alleged that the university officials violated his First Amendment rights by attempting to compel his speech.

. . .

The Court thus concludes that, in light of Rankin, reasonable officials in the university officials’ shoes would have known that Hiers’s speech touched on a matter of public concern and that discontinuing his employment because of his speech violated the First Amendment. Accordingly, the university officials are not entitled to qualified immunity on Hiers’s retaliation claim. (Citations omitted.)

Now, unlike the summary judgment in Coalition for TJ, this is not an outright win: the Court has only held that if taken as true, the complaint states a claim for which relief could be granted. But given that the facts of the case are not seriously disputed, the message is clear: UNT—as well as Schmidt and other UNT officials—are very, very likely to go down in this fight.

Something is clearly wrong at UNT. One would think that with both Professor Jackson and now Professor Hiers well-positioned to hit UNT for sizeable judgments, there would be at least one adult in the room to explain that wokeness über alles is not a winning legal strategy. The Texas Legislature should also assess whether the UNT administration is properly stewarding its state funding by inviting and then having to defend against cases such as these, and it should cut UNT’s appropriations accordingly.

But given that the UNT administration is apparently unwilling to lift a finger to punish even threats of physical violence against those on its campus who dissent from the gospel of wokeness, administrators will likely need to be hit with personal liability for anything to change. Nevertheless, this case should be an object lesson to other public university administrators (such as feckless University of Texas President Jay Hartzell) that requiring faculty or students to pledge allegiance to DEI or other political positions as a condition of employment, advancement, funding, or admission remains illegal under well-settled law.

Author’s Note (3-16-22): I requested comment from UNT President Smatresk, UNT System General Counsel Alan Stucky, and Professor Schmidt.  None of them responded before publication of this article.


Image: Michael Barera, Wikimedia Commons, Public Domain

Louis K. Bonham

Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (BA ’83, JD ’86), was an Articles Editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the US Court of Appeals for the Fifth Circuit.

11 thoughts on “Another Hopeful Sign: Hiers v. Board of Regents

  1. Mr. Bonham is correct when he writes: ‘UNT—as well as Schmidt and other UNT officials—are very, very likely to go down in this fight.’ Judge Jordan finds that ‘Hiers’s chalkboard message… show[s] that his speech touched on a matter of public concern’ (and is therefore protected under the First Amendment).

    To prevail in court, UNT will need to argue that UNT’s interest in restricting Hiers speech outweighed his interest in speaking on the topic, and that UNT’s had a valid state interest in compelling an apology from Hiers. One would expect UNT to argue these things in their motion if they could provide evidence for them, but they are conspicuous only in their absence.

    It is unclear how far how far UNT will to in defending the department chair, but the lawsuit may make academic administrators think twice before they violate a faculty member’s constitutional rights.

  2. So long as the taxpayer and public gets to bankroll the awards, this stuff is never going to stop. I think there needs to be some examination whether institutional leadership that do this (should be) obvious nonsense (in this case, the department chair) shouldn’t face personal liability for this type of thing.

  3. What’s the deal with Gov Abbott and the Republican legislature in Austin? Re they asleep? I expect this kind of thought-police bullying in Oregon, not in Texas.

    1. Unfortunately, Gov. Abbott is completely AWOL when it comes to higher ed in Texas.

      The last serious effort at higher ed reform in Texas was under Gov. Perry. One of his “reform” regents, Wallace Hall, has said that the biggest impediment to higher ed reform / accountability in Texas today is Gregg Abbott.

      Longtime UT critic Mark Pulliam had been sounding the alarm for years. He finally got an audience with Abbott’s chief higher ed advisor a couple of years ago, who essentially dismissed his concerns and blew him off.

      Abbott has appointed EVERY member of the UT System Board of Regents. They are potted plants whom have been utterly supine in the face of UT’s descent into wokeism.

  4. Hmmmm..

    Would the standard of Meritor Savings Bank apply if the dean hadn’t been stupid enough to give the real reason for termination and instead attempted a pretext?

  5. Let’s hope the court and/or the Texas legislature will make UNT pay a financial penalty for this.

    But on the other hand, if they react with something like their Lt. Governor’s proposal to abolish tenure, leave me out. I note that this adjunct professor did not have tenure, and look what happened. Had he had tenure, the affair would have played out much differently.

    1. Well seeing as qualified immunity was found not to hold, hopefully the administrators will be held personally liable.

    2. No, Mike Adams had tenure, and he’s dead.

      I’ve lost count of the number of tenured professors bullied into early retirement.

      And now IHEs are taking the Soviet approach to mental health…..

    3. Given that the probability of any non-leftists ever being granted tenure asymptotically approaches zero, anything that preserves tenure merely fortifies the left. The right has thus far shown not much more than rhetorical support for reining in public universities; actual oversight and governance is still theoretical. I’m increasingly sympathetic toward anyone willing to propose a full Henry VIII-style “Dissolution of the Universities”.

    4. I’d insist on not just money damages but also an injunction to prohibit future violations. I’m not sure that would be available but it’s worth a try. These wokesters should live in fear of contempt of court the same way they make everyone else live in fear of cancellation.

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