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.
The jurisprudential background leading up to Nassar is complicated, but here it is in a nutshell: In Price Waterhouse v. Hopkins, a plurality of the Court adopted the mixed-motive framework for Title VII status-based discrimination claims. Congress later codified this standard into Title VII, but did not include it for Title VII retaliation claims, which are governed by a different section of the statute than status-based discrimination claims. Thus, when presented with the question of the proper causation standard for Title VII retaliation, the Nassar Court concluded, although not without strong dissent, that the plain language and statutory history of the retaliation section show Congress intended but-for causation to be the standard.
Long before Nassar and Price Waterhouse, the mixed-motive standard was used to provide vigilant protection to constitutional and civil rights. In Mt. Healthy City School District Board of Education v. Doyle, the Court adopted the mixed-motive framework in First Amendment retaliation cases. There a public school declined to rehire a teacher after he told a disc jockey about a new school dress code. The teacher previously had several disciplinary problems: run-ins with co-workers, profane descriptions of students, and obscene gestures while at school. The school justified its rehire denial by citing the teacher's "notable lack of tact in handling professional matters," particularly, the radio station incident and the obscene gestures. The Court reasoned the burden was on the teacher to show that his conduct was constitutionally protected and that the conduct was a "motivating factor" for the schools decision not to rehire him.
For decades, Mt. Healthy's mixed-motive framework has provided crucial constitutional protection for students and faculty at public universities who dissent from the dominant campus orthodoxy. As the Third Circuit said in DeJohn v. Temple University, "free speech is of critical importance" on public university and college campuses throughout this country "because it is the lifeblood of academic freedom."
Broad protections for student and faculty speech are supported by a mixed-motive framework, which uncovers retaliatory conduct threatening to fundamental rights. Often, the evidence surrounding punishment of a student on campus or a faculty member in the workplace contains several justifications for the adverse action. In the case of a professor, a college may deny her tenure because of a less than preferred number of publications and the viewpoints she expresses in existing publications. Rarely is any decision made for one reason alone.
During the congressional debates on the Civil Rights Act of 1964, Clifford P. Case famously stated: "If anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of." Senator Case was responding to Senator John McClellan's amendment to the bill that would have required Title VII plaintiffs to prove an adverse employment decision was "solely because of" an impermissible motive, such as race or religion. In the end, Case's quip and underlying theory of civil rights jurisprudence carried the day, at least for Title VII status-based discrimination and First Amendment retaliation claims.
As Justice O'Connor said in concurrence in Price Waterhouse: "[T]he [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs. He is invited to make an estimate concerning facts that concededly never existed."
Unfortunately, some lower courts have interpreted Price Waterhouse and later cases as giving mixed messages on the proper causation standard for civil rights retaliation. Thus, at least one federal appellate court has applied but-for causation to First Amendment retaliation claims brought under § 1983. The Court's decision in Nassar, however, shows clearly that the exacting statutory language and congressional intent contained in Title VII do not translate into binding or even persuasive reasoning for altering the mixed-motive framework provided for First Amendment retaliation claims.
Academic freedom and campus free speech depend on opportunities for students and faculty to challenge the entrenched orthodoxy. Too often public schools and universities censor and retaliate against dissenters for their speech and cloak those adverse actions in seemingly benign and multivariable justifications. A but-for standard would facilitate punishment of disfavored speakers and thus imperils the marketplace of ideas. Nassar indicates that the mixed-motive framework lives on and will continue to provide critical protections for civil and constitutional liberties on campus.
David J. Hacker serves as senior legal counsel with Alliance Defending Freedom at its Sacramento, California Regional Service Center, where he litigates cases to uphold the constitutionally protected rights of Christian students, faculty, and staff at public schools and universities across the nation. He joined Alliance Defending Freedom in 2005 and earned his J.D. from Washington University in St. Louis, Missouri.
Suggested citation: David Hacker Mt. Healthy's Enduring Commitment to First Amendment Rights on Campus, JURIST - Hotline, July 28, 2013, http://jurist.org/hotline/2013/07/david-hacker-retaliation-claims.php.
This article was prepared for publication by John Paul Regan, an Associate Editor with JURIST's Professional Commentary Service. Please direct any questions or comments to him at firstname.lastname@example.org