Litigation Update: Reges v. Univ. of Washington – University Acknowledgement of Indigenous Land

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Ryan Lacey:  Hello, and welcome to this Federalist Society Webinar. This afternoon, August 9, 2022, we have a litigation update on Reges v. University of Washington and discuss universities requiring faculty acknowledgment of indigenous land. My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our expert on today’s program.

 

      Today, we are fortunate to have an excellent speaker in Joshua Bleisch, whom I will introduce very briefly. Joshua is a Faculty Legal Defense Fund Fellow at the Foundation for Individual Rights and Expression. Prior to joining FIRE, Josh was a Law Fellow at the National Association of College and University Attorneys. Josh earned his BA in political science from Wabash College and his JD in 2019 from Indiana University Maurer School of Law.

 

      After Josh gives his remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can toward the end of today’s program.

 

      With that, thank you for being with us today. Josh, the floor is yours.

 

Joshua Bleisch:  Thank you so much, Ryan, and thank you so much for having me here and giving me the opportunity to update your members about this really, I think, exciting and potentially important case involving Stuart Reges.

 

      So first, I’ll start with the facts of this case. Stuart Reges is a Computer Science faculty member at the University of Washington, which is in Seattle. He’s been employed there since 2004 as a teaching professor—or, basically, an untenured lecturer—and he specializes in introductory computer science courses. He’s renowned for his teaching and for the approach that he has to teaching students who are new to coding and to computer science. He even has led a winning coding team to a coding competition, and he really takes pride in his teaching and in his interactions with his students.

 

      He also has a really long history of exercising his right to free speech, even expressing dissenting viewpoints. In the late ‘70s and early ‘80s, he wrote for local and national media about being a gay man at that time and the mental health issues that he dealt with. And in the ‘90s, he protested, then, the war on drugs while he was employed at the University of Stanford, and that ended up getting him fired from there. But more recently, at the University of Washington, he has spoken out about land acknowledgments.

 

      Now, what are land acknowledgments? These are becoming more and more popular on college campuses, and for those of you who are not as online or as tuned in to the culture wars -- may not be as familiar with these, but essentially, what they do is they allow any kind of institution—in this case, it’s the University of Washington—to acknowledge the historic presence or ownership of an indigenous tribe on the land that this institution now sits.

 

      So in the University of Washington’s case, they have a list of best practices as part of their diversity, equity, and inclusion initiatives, where they encourage faculty to include a land acknowledgment statement on their syllabi. The university’s land acknowledgment statement reads, “The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip, and Muckleshoot nations.” So they have this university-approved version of a land acknowledgment statement that then the School of Computer Science and Engineering—of which Stuart Reges is a member—goes, and it encourages its faculty to include on their syllabi.

 

      The issues for Stuart Reges began almost a year ago, last fall, when somebody shared an article from The Atlantic about land acknowledgments, essentially arguing that they are performative and that they don’t really mean much, even for those who might care or might believe in the sentiment behind them. He chimed in and also noted his disapproval of land acknowledgment statements and noted that he wanted to organize faculty to have a discussion about them. And he also, at that time, noted that he planned to include on his syllabus an alternative land acknowledgment statement.

 

      This alternative land acknowledgment statement is based on John Locke’s labor theory of property, and Reges’s statement reads, “I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.” Now obviously, there’s a little bit of tongue-in-cheek nature to this, but essentially, it’s Stuart Reges registering his dissent with what he believes is -- what he calls a performative act of conformity in these statements.

 

      So when time came for him to issue his winter quarter 2022 syllabus—the University of Washington is still on the quarter system—he included this in his syllabus in the section where others might include the university-approved statement. This caught the University’s attention, and they didn’t really like what he had to include there. The Director of the Allen School unilaterally removed his syllabus from the course website—or from the school’s website—deleted the statement, and uploaded a new version without it. Stuart tried to update it again, including his new statement, and they removed it a second time, this time including protections to prevent anybody from editing it.

 

      They also, after his first day of class—which, by the way, there were no issues, no disruptions, no other -- his ability to teach was not otherwise affected by his inclusion of this alternate land acknowledgment statement. But the director then sent an email to his students apologizing for what they said was an offensive land acknowledgment statement and for, essentially, creating a hostile environment through this syllabus statement. They also then created what we call a shadow course, which is a separate course section, and encouraged Stuart Reges’s students to disenroll from his course section and instead enroll in this other shadow course as way of punishing him for his viewpoint on this issue. About 30 percent of his students left, and that other course was taught by a professor, not in a live lecture like Stuart’s class, but via recorded lectures, and it was all online.

 

      Shortly after that, they also opened an investigation into him, alleging that he may have violated university policy. One of these policies is Executive Order 31, which prohibits faculty and students from -- which is what we allege in our complaint as an unconstitutionally broad and over-vague policy. It, essentially, allows the University to punish students and faculty for statements—not just conduct but could be speech—that is inappropriate or offensive.

 

      So they notified him that he was being investigated under this policy, among others, and set up this shadow course. For months, he was not informed of the status of this investigation. He didn’t know what could happen. There’s a threat of suspension, threat of termination is part of this, and up until the time that we filed this complaint, he still didn’t know if they were even going to form a faculty committee, which is what the University is supposed to do under this policy.

 

      Today, there’s still been no actual hearing, no formal investigation. It’s unclear what the University is doing, if anything. So what this does is just -- it holds him into this point of limbo in his career. He’s been, essentially, ostracized from this community that he’s been a part of since 2004, and this First Amendment harm occurs every single day that he is continuing to teach under threat of suspension or termination.

 

      So Stuart Reges came to FIRE for assistance. We wrote a letter explaining to the University and its administrators how it ran afoul of his First Amendment rights. When that didn’t get traction, we engaged him as a client and instead decided to sue. We are suing the University of Washington’s president in her official capacity and three administrators in their official and individual capacities, seeking damages to compensate him for the First Amendment harm that he has suffered, as well as an injunction preventing them from establishing another shadow course—which they have done for his fall quarter, now, as well—as well as preventing them from enforcing this vague and overbroad Executive Order 31, which allows the University to punish anything that is offensive or inappropriate.

 

      So I think, with that -- I’m sure there’s something that I forgot, but that’s the status of the case right now. We are awaiting an answer or a dispositive motion from the defendants right now, which is due at the end of September. And we are looking forward to continuing to help Stuart Reges vindicate his First Amendment rights in this case.

 

      So I think, with that bit done, I’d like to turn back over to Ryan and see if we have any questions. I’d be happy to answer anything.

 

Ryan Lacey:  Yeah, absolutely. Thank you so much for that update on the case, and I’d like to remind our audience if you have a question, please enter it into the Q&A section at the bottom of your screen, and I’ll read those questions for Josh. I have a couple questions off the top, right? Has any part of this case considered how the University—which is a public university—might be wasting public funds by creating a shadow course? Right? It seems that if they were doing that unnecessarily, it would be a waste of public funds, and there could be a complaint taken on that regard.

 

Joshua Bleisch:  Yeah, it doesn’t consider that specifically. The basis for our challenging of the shadow course comes from a case out of the Second Circuit, which is Levin v. Harleston. That involved a city University of New York faculty member who was punished, in part, by creating one of these shadow classes. And currently, there’s no precedent for that in the Ninth Circuit, but we’re hoping to build on that precedent from the Second Circuit in order to be as protective as possible of faculty rights and anything that could cause a reasonable faculty member to feel chilled from exercising any additional -- expressing their First Amendment rights is a First Amendment violation and a basis for retaliation. And we argued that by creating this shadow course, that’s what they’ve done here.

 

      So we haven’t considered it under a public funds or a waste of public resources issue. We’re purely considering it here under -- as a basis for creating a chilling effect of faculty speech.

 

Ryan Lacey:  Yeah, makes sense. Another part of this -- and kind of a more broad question. We’ve seen this -- recently, it’s come to light this -- how investigations are kind of used as a punishment in and of themselves, right, where this professor is put in limbo; he’s stressed out about this issue; it has a chilling effect on speech because who wants to go through an investigation like this? Do you think that this case—if it goes on and goes to higher levels—could have a place in the reasoning behind defenses like this or can have an effect on other cases in this reasoning? It’s become more and more prominent to challenge these sort of investigations as punishment. So where do you think this case plays a role in that?

 

Joshua Bleisch:  Yeah, absolutely. And it really is a huge problem and something that FIRE sees all over the place, where universities will announce some kind of investigation into faculty or student speech to try to appease critics but won’t really do much about it because they know they’re in a tough place. Whereas we would argue that once you know that it’s protected speech, once you know that there’s no conduct involved and that it’s not falling into one of the narrow exceptions to the First Amendment, then it should be dropped—that’s the end of the story. But by engaging in these protracted investigations that -- you’re right. That in and of itself is punishment—even if there’s no -- even if, eventually, they come to the right conclusion, and there’s no punishment, there’s no suspension, there’s no docking of pay or anything like that, they’ve gone through months of stress and uncertainty and harm to their reputation because people around them think that they have committed some policy violation or are harassing or whatever the case might be, and that’s just not the case.

 

      And so, yeah, that’s something that we keep in mind and something that there’s good law in the Ninth Circuit about already, but we’re always interested in improving that. And adding to the jurisprudence there is that in the Ninth Circuit, anything that’s reasonably likely to turn an employee from engaging in further protected speech, that can be an adverse action. It doesn’t have to be a certain kind. It doesn’t have to even be severe. And we want to show that this is just another example of just that, where it’s this long protracted investigation that is constitutional harm in and of itself.

 

Ryan Lacey:  Moving on to some audience questions now. And we have a lot; and keep them coming, please. First is Tom Palmer (sp). He asks, “Are there parallel cases that have been adjudicated on this topic?”

 

Joshua Bleisch:  On land acknowledgment statements specifically, none that I’m aware of. There are a few cases -- this also falls within the doctrine of employee’s speech and of, what some term, an academic exception to the employee speech doctrine. In the Ninth Circuit, there’s this case: Demers v. Austin. There are also cases in the Fourth, Sixth, and Fifth Circuits that basically exclude faculty speech when it’s part of teaching or research or scholarship from the Garcetti exception, which basically accepts, from First Amendment protection, employee speech when it's done as part of somebody’s job duties.

 

      But because professors naturally speak on matters of public concern as part of their job duties, they’re going to need greater First Amendment protection -- they’re not typical government employees. They occupy a special space, and our universities are a unique space. They’re incubators for thought and for creation of new knowledge.

 

      So there are other cases along that line that don’t have to do with land acknowledgment statements but do have to -- that do deal with public employee speech when it is by public college and university faculty on matters of public concern as part of their job duties. And so we do see it fitting along with those kinds of cases.

 

Ryan Lacey:  We have another question about Executive Order 31. When was the executive order issued, and is there any prior litigation under it?

 

Joshua Bleisch:  So it was issued -- I don’t have the date in my head but years and years ago. I think in the ‘80s is when it was issued, but we do know it’s been continuously updated, including a couple of times in the current -- President Cauce’s, administration—a couple of times during her administration. So I don’t know exactly when the offending portion was introduced. It could have been when it was first issued. Like I said, I think it was in the ‘80s, but I don’t have the exact date. What we do know is that it’s still very much in effect. They’ve noted their intent to potentially charge Stuart Reges under this policy, and, to my knowledge, I don’t know of any other litigation that challenges this specifically, no.

 

Ryan Lacey:  Next question. Often, when sports teams change their name or their mascots to stop offending Native Americans, the Native Americans asked about it say that they are never bothered by it in the first place. Has anyone asked the members of these local tribes how they feel about these acknowledgments and…?

 

Joshua Bleisch:  So I don’t know the answer to that question. I don’t know the University’s process when they made this acknowledgment. I don’t know who they consulted or not. I do know that it is a topic of debate, and there’s supporters and critics of these on the right and the left and among native tribes. In just doing reading for this case, I know that there are progressive criticisms of land acknowledgment statements; there are criticisms from tribal groups of them as performative.

 

      I do want to note that FIRE, itself, doesn’t take any position on the utility or the propriety of land acknowledgment statements. But what we do know is that it’s a matter of public debate, and because it’s up for debate, because it’s subject to -- it’s a matter of public concern, and so it’s something that faculty members -- especially in this case, when Stuart Reges was invited to speak on this topic by the administration, it’s something that they need to be allowed to engage in. But to answer the actual question, I don’t know who, if anybody, was specifically consulted by the University or by anybody else for these acknowledgment statements.

 

Ryan Lacey:  Next question. Is the complaint based on the restrictions to your client’s speech, compelled speech, or both or neither? Further --.

 

Joshua Bleisch:  So -- I’m sorry. Go ahead.

 

Ryan Lacey:  Further, are his rights being cabined to some extent because he does not have tenure?

 

Joshua Bleisch:  So I’ll get to the tenure point second. We don’t have a compelled speech claim in our complaint because, essentially -- I’ll just say what we do have, instead, is that we have First Amendment retaliation claims and a First Amendment viewpoint discrimination claim because, theoretically, faculty members could choose not to say anything about this. Where the issue exists here is that the university issued this recommendation—which, again, universities are free to have their own thoughts on these things and their own policies, and they can recommend that people take their own, but -- or they can recommend language. But the moment that they punished Stuart Reges for issuing a dissenting viewpoint on this topic is when they ran into violating the First Amendment.

 

      I want to note, as well, that there were other faculty members who also modified their land acknowledgment statements, that didn’t use the canned version from the University of Washington, but they did so in a way that was also supportive of the general idea or that even went further into acknowledging the -- noting the sacred land there or talking about ways that tribes thought about things and kind of went further in that direction. And those faculty members were not punished like Stuart Reges was punished. So it’s clear to us here that it was the viewpoint -- the viewpoint discrimination is the problem here -- is where they invited him to speak on this topic, he did so, they didn’t like what he had to say, and so then they set up the shadow course. They sent him through this process of a long, drawn-out investigation and accusations of policy violations.

 

      It is important, too—back to the tenure point—that I don’t know exactly how this would be the same or different if he did have tenure, but there are likely far greater protections that would be in place for him, procedurally, if he did have tenure. They are still following -- they are going through these processes that, as far as we can tell, is how -- the communication to him about the policy violation of Executive Order 31 seems to be how they go about business. But a faculty member who has tenure, generally, does have greater protections. They have greater procedural and due process protections. And I don’t want to -- I guess, maybe avoid using due process because those are part of the not necessarily constitutional protections but protections of tenure.

 

      But typically, because of those greater protections—greater procedural protections—universities are not as keen to go after tenured faculty members for controversial speech. When they don’t have those kinds of protections, they are often easier targets, and FIRE’s got some research about this. We’ve got a Scholars Under Fire database that I encourage people to look at, and it seems that a disproportionate amount of faculty member who are targeted or who are punished don’t have protection of tenure. 

 

Ryan Lacey:  Does a professor at the University of Washington have the option to omit such a statement altogether? You already answered that, that they could not. Another question is, is he continuing to be paid, and is he continuing to teach courses? Is it just the investigation, or is there other punitive actions being taken?

 

Joshua Bleisch:  Yeah, so he is still teaching, though he has the lightest teaching load this year that he’s ever had since he started there. He’s, I think, teaching one course this quarter and two in the fall, which is light for what he’s typically had. So, yes, he is still being allowed to teach, so there are no other punitive actions yet about keeping him from the classroom or suspending him, but it is this, like I mentioned, this state of limbo that he is sitting in with his peers at the Computer Science and Engineering School and with having this investigation hanging over his head.

 

      And it’s important to note that even without, yes, any specific decision on being suspended or being terminated or having pay docked or other privileges, that that shadow class and that ongoing investigation, those are First Amendment harms. Those are adverse employment actions. Those do chill his and any reasonable person’s continued protected expression.

 

Ryan Lacey:  Though this case is occurring in the Ninth Circuit, how applicable is it to the reasoning of the Sixth Circuit in Meriwether, which, I believe, FIRE had a hand in as well?

 

Joshua Bleisch:  Yeah, that is another case that FIRE had a hand in. And while the faculty member there -- ultimately, the court, I believe, found that her fleeting remarks on sexual topics or use of profane language was not protected or was not a matter of public concern. It is applicable -- back to what I was saying with the academic freedom exception to the Garcetti Rule where the Fifth Circuit adopted that test, and instead of applying Garcetti and holding that a public employee’s speech, when it was part of their job duties, is not protected, went instead to the more traditional Pickering-Connick balancing test. And that’s, I believe, ultimately where the faculty member, unfortunately, lost.

 

      But this case, we do see matching up with that in that Stuart Reges’s expression here is part of a syllabus, which is a core function of a professor as an academic to set their syllabus to decide what students read and their grading policies to some extent. And in this core academic function, he’s also speaking on a matter of public concern, and it’s not -- categorically not protected under Garcetti and instead because of Demers, and somewhat of the reasoning in Buchanan and Austin in the Fourth Circuit, that that still is -- has the opportunity to be protected by the First Amendment.

 

Ryan Lacey:  Is your claim predicated solely by the US Constitutional grounds or other law: employment law, state law, etc.?

 

Joshua Bleisch:  Yeah, we don’t have any employment law claims or state law claims, no state constitutional law. There is a State of Washington constitutional provision on free expression. We decided not to include that. It appears to be coextensive with the First Amendment, so it includes First Amendment claims, Section 1983 claims.

 

Ryan Lacey:  And so he is still teaching, just with a smaller class, smaller course load. In his new syllabus, is he including this land acknowledgment—or his amended one that he drew up?

 

Joshua Bleisch:  He is. Yep. He’s still including it, and he introduced it on the first day of class, and there have been no disturbances, no issues, to our knowledge, so things are -- even with this land acknowledgment statement, he’s still able to teach effectively. He’s still able to be the great professor that he always has been.

 

Ryan Lacey:  And kind of a broader question: What constitutes a publicly funded university and, therefore, one that must abide by the First Amendment? What makes the University of Washington one that must abide as opposed to another school?

 

Joshua Bleisch:  So the exact organization of state universities varies by the state, but basically, the University of Washington is a public entity. It’s an arm of the State of Washington. It receives funding from the State of Washington. Proportions vary, and these days, the proportion of income that universities receive via state dollars versus tuition and other things, I know, is decreasing. But, essentially, it’s that -- and sometimes they’re set up in charters in a constitutional provision, sometimes they’re statutorily created, but at its core, it’s an arm of the State of Washington and therefore a state entity and able to be sued under Section 1983.

 

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      And to be clear there it’s -- and I know the title for this is “University of Washington,” and that’s convenient shorthand, but for Ex parte Young reasons and for 1983 reasons, the specific defendants in this case are the president and three administrators who actually caused the First Amendment harm here.

 

Ryan Lacey:  Another question from the audience. Why can’t the University simply have a position that its agents/teachers are not to undermine? Why can’t the -- if the University as an organization, as an employer, take a position on an issue and say -- tell its employees that “You are not to undermine our stated position,” like another employer might?

 

Joshua Bleisch:  Can you repeat that one more time? I’m sorry.

 

Ryan Lacey:  Yeah. Why can’t the University hold a position—say, about land acknowledgment, that this is the Native Americans’ land—and have it be policy that its agents/professors can’t undermine it? Does the University not have that ability because of their publicly funded status?

 

Joshua Bleisch:  So I think it has less to do with their status as a state entity and more to do with the fact that professors are special kinds of state employees here, and basically, having some kind of provision like that, I would imagine, is viewpoint discriminatory, whereas you are not allowing somebody to express viewpoint X if university has viewpoint Y, if that makes sense.

 

       And where it differs for other state employees, likely, is that, in general, state employees who are not public college and university faculty -- like I said, the state employee speech doctrine from Garcetti—stemming, then, earlier there from Pickering and Connick—the state has the ability to not have the efficient administration of the services that it provides affected by the public employee’s speech. And that’s kind of the reasoning there.

 

      But faculty are different. Faculty are always commenting on controversial issues, on matters of public concern. The First Amendment is especially concerned with academic freedom, so faculty should have the right to pursue even controversial research topics, to write about controversial research topics without fear of retaliation or retribution from the state, and part of that is also writing on and discussing these topics. And because of that academic freedom right and because faculty are a different type of public employee, that’s why, in general, I think that would be impermissible.

 

Ryan Lacey:  And can you speak to any of the origin of these kind of land acknowledgments, especially at universities? Why have they become popular, and did they grow out of the particular movement or theory?

 

Joshua Bleisch:  So I don’t know their exact origin. I don’t know who popularized them or who first conceived them as something worth pursuing, but I do know that they have gotten a lot more popular in the last couple years as universities become more and more concerned with showing a commitment to diversity, equity, and inclusion and with showing that they are being inclusive to people of all kinds, whether it’s black students, indigenous students, immigrants. And I think it’s really -- the popularity of these statements have exploded along with what we see elsewhere, with new positions about diversity, equity, and inclusion, committees designed to study how universities are doing with diversity, equity, and inclusion, and it seems like this is another avenue for that kind of work.

 

Ryan Lacey:  Well, we’ve run out to the end of the questions, and I consolidated some of the questions, so if I didn’t ask your specific one, it’s just to prevent duplication. But do you have any closing thoughts, Josh, on this case or where you think it might go next, etc.?

 

Joshua Bleisch:  So I think it’s hard to predict where this might go next, but I know that Stuart is a real champion for the First Amendment and for free speech, and we really sincerely hope that we’re able to vindicate his rights here and then also create some good law for both his colleagues at the University of Washington and faculty all over the place.

 

      And I guess I will also end by just -- if you’re not aware of FIRE, Foundation for Individual Rights and Expression, check us out. We recently expanded our mission. We were formerly focused on defending the expression rights—rights of conscience and due process—for students and faculty on college campuses, but now we’re turning our focus to be more broad and focusing on First Amendment issues in the country writ large. So it’s exciting times for us, exciting times for this case, and I just thank you for your interest in what we’re doing and interest in Stuart’s case here. And I hope to have some more good updates for you soon.

 

Ryan Lacey: Yeah, and we’d love to have you back when the case moves further along so you can give us another litigation update on a call. On behalf of The Federalist Society, I want to thank you for the benefit of your valuable time and expertise today. And I’d like to thank our audience for joining us and participating, especially with all those great questions.

 

      We welcome listener feedback by email at [email protected], and, as always, keep an eye out on our website and your emails for announcements about upcoming webinars and other events.

 

      Thank you all for joining us today. We are adjourned.

 

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