“The public university occupies a central place in the law of the First Amendment. The First Amendment protects the free exchange of ideas. The university is a primary generator and repository of ideas, a place in which unfettered academic debate and open discourse promotes the search for truth and prepares students for a discordant world lacking in orthodoxy. When we place limits on what professors may say or impose punishment for the views they express, we destock the marketplace of ideas and imperil future generations who must be exposed to a range of ideas and readied for the disharmony of a democratic society.”
—from Reges v. Cauce (9th Cir. 2025)
The Ninth Circuit has issued an important decision reaffirming the special First Amendment status of public universities—one with clear implications for faculty speech and discipline, particularly in light of recent UCOP commentary about faculty expression interfering with the University’s “public service mission.”
Stuart Reges, a teaching professor of computer science at the University of Washington, objected to his school’s recommended inclusion of a land acknowledgment in course syllabi. He responded by including a satirical version in his own syllabus, which offended some students. UW reacted by removing the statement from the website, publicly condemning it, encouraging complaints, conducting a lengthy investigation, and ultimately finding that Reges had caused a “significant disruption.” Reges sued.
The Ninth Circuit held:
1. Reges’ speech was protected because
• it addressed a matter of public concern,
• it constituted speech related to scholarship or teaching (and thus fell outside Garcetti), and
• Reges spoke for himself, not for the institution; and
2. Reges’ speech interests outweighed UW’s asserted administrative interests to prevent disruption because
• the speech concerned a contested public issue, and
• student discomfort or anger cannot, by itself, justify discipline, as that would operate as a heckler’s veto and undermine the university’s special constitutional role as a place where students may be challenged.
There is much more contour in the opinion, but a few takeaways seem especially relevant for Berkeley:
• The court held that a prolonged disciplinary investigation itself can constitute an adverse employment action. This has implications for abusive-conduct and related policies that have subjected faculty to years-long investigations over protected speech. At a minimum, speech-based cases should be screened and resolved quickly.
• The Ninth Circuit squarely rejected student discomfort as a sufficient rationale for censoring faculty speech. This is notable given that discomfort featured prominently in the discipline of our own lecturer, Kao.
• The court reaffirmed that faculty speech can be limited only where it causes actual, material, and substantial disruption. Here, the evidence did not meet that standard. The panel also appeared skeptical of disruption claims where the institution itself amplified the controversy—for example, by soliciting complaints or publicly highlighting the alleged transgression.
The opinion is also notable for how starkly it illustrates the consequences of allowing subjective offense to drive balancing. The majority recounts student complaints emphasizing that Reges’ prior writings were “very triggering”—so much so that the student couldn’t read them! The dissent offers a contrasting vision, one in which universities’ obligations to particular student groups effectively limit faculty speech that might cause them distress.