In its ruling today in a case filed by a UC Irvine retired professor against The Regents and several UCI administrators and faculty, the U.S. Court of Appeals for the Ninth Circuit upheld a lower court decision in the University’s favor, holding that the University and individual faculty and administrative defendants are immune from liability.  At the same time, the ruling avoided any dilution of First Amendment protections for faculty speech.

In Hong v. Grant et al., retired chemical engineering professor Juan Hong sued The Regents and UCI administrator and professors, both in their individual and official capacities.  Hong alleged that the University had retaliated against him, by issuing a “no action” on his faculty merit review, because of comments he had made in department meetings concerning administrative issues. The University claimed that the merit review attended only to the merits of performance and that the faculty and administrators participating were immune from such suits.

The Ninth Circuit affirmed the decision of the lower court, finding that The Regents and the administrator sued in his official capacity were immune under the 11th Amendment, which provides complete immunity to state actors for official acts.

The Court also held that the administrators and faculty sued in their individual capacity were immune for their decisions in this merit review under a doctrine that says state officials may be held liable only if they knowingly violate a clearly articulated Constitutional right.

The University recognizes that protection for faculty speech, whether that speech occurs in a department meeting, within the academic personnel review process or within the Senate’s Council on Academic Personnel, is crucial to a well-functioning academic environment. In fact, the University had argued in briefs to the Court that faculty speech must be protected. At oral argument, the University argued that immunity protected it and the individual faculty defendants when engaged in such routine faculty merit reviews.

The Court’s approach is consistent with the unique nature of faculty speech on a university campus. In declining to rule that department speech was unprotected, the Court showed great respect for the importance of the issue in that, and other, University settings, and left for the future consideration of those important issues on a case by case basis.

The Court’s ruling is publicly available at

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