From the Seventh Circuit, in a fairly high profile lawsuit by a law school professor suspended because students objected to how he taught and dealt with some race-related issues. Two interesting bits related to QI.
First is on pp. 8-10. For a long time, public-employee speech was controlled by Connick/Pickering, which required a balancing of the government's interest against the employee's right to speak on public matters. Then Garcetti held that speech employees make as part of their job gets no protection at all. But Garcetti dropped a footnote (and Justice Souter a concurring opinion) suggesting that academic speech is different and that there may be a professor exception; it expressly left the issue unresolved. Some circuits have held as much--and the 7th Circuit does here. But the court says the university is not entitled to QI. Pre-Garcetti precedent protects what the prof did here, Garcetti did not resolve the issue, and no Seventh Circuit precedent applied Garcetti to a professor's classroom speech. Therefore existing precedent did place the issue beyond debate, because pre-Garcetti law told the university it could not punish this speech and no post-Garcetti precedent established differently. Implicit in this is that university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech.
This seems to flip the presumption: Absent law telling the university the speech is unprotected, it should have understood that it was protected. It usually goes the other way (the officer can act absent clear precedent that he cannot act).
On the other hand, university officials enjoy QI as to his compelled-speech claim because no case law holds that the government as employer cannot compel its employees to speak. Barnette (which we discussed in the QI Puzzle about writing the pledge) is about students and no law addresses employees.
I expect this appear in the next edition of the book.
