This week, the Supreme Court of the United States issued an important decision for public institutions of higher education. In Heffernan v. City of Patterson, 578 U.S. ___ (Apr. 26, 2016) (slip op.) , the Court held that public employers can be liable for violating an employee’s First Amendment rights even if it turns out that the employee was not actually engaged in conduct protected by the First Amendment. Rather, the Court held that it is the motives of the public employer that matter—if the employer punishes an employee for activities that (if they would have occurred) are protected by the First Amendment, the employer can be liable for damages.
For a more comprehensive analysis of the decision, please see our recent Legal Alert. This decision has significant implications for public colleges and universities. Frequently, professors and other employees engage in speech activities that may be protected by the First Amendment. Because the Supreme Court has now confirmed that it is solely the motives of employers at issue in these cases, chancellors, presidents, deans, and other individuals in public college or university leadership need to be cognizant of the types of speech that are protected. This can be a difficult inquiry, and is one that is even more important following Heffernan.