The Jorjani Ruling: When Does Controversial Speech Justify Employment Termination?
The United States Court of Appeals for the Third Circuit recently issued an opinion concerning a recurring issue of particular interest to school entities. Jorjani v. New Jersey Institute of Technology addresses the right of a school entity to take an employment action (in this case, the non-renewal of a teaching contract) because of controversial comments an employee made concerning race, politics, and immigration on a private social media account.
The facts of the case are that the plaintiff, Jorjani, was a contracted teacher at the New Jersey Institute of Technology (NJIT), a state institution of higher education where his contract was subject to periodic renewal. During his employment, Jorjani became a vocal proponent of "alt-right" philosophies, including such things as the "left-wing myth of human racial equality." He also formed the "Alt-Right Corporation" and spoke at conferences.
During the term of his 2017 contract, Jorjani was interviewed and discussed how the "left persecutes and silences right-wing thought in academia." The conversation was taped, and after he assumed the recording had stopped, Jorjani commented on matters concerning race, immigration, and politics. The meeting became the basis for a piece published in The New York Times, which included a video excerpt of remarks he made at a conference characterizing "liberalism, democracy, and universal human rights" as "ill-conceived and bankrupt sociopolitical ideologies," and repeated comments he had made supportive of Adolf Hitler.
As a result of the article, NJIT received negative calls, emails, and strongly worded statements from both the faculty senate and various departments within NJIT in opposition. Additionally, a Facebook campaign was started to have Jorjani fired. Ultimately NJIT decided not to renew Jorjani’s contract. He then sued NJIT for a violation of his First Amendment rights.
The United States District Court for the District of New Jersey granted NJIT’s motion for summary judgment, concluding that Jorjani’s speech was not protected. The Third Circuit Court of Appeals reversed that decision and sent the case back to the district court for further proceedings. In doing so, the court articulated a standard that needs to be followed anytime this kind of issue arises.
· First, the court addressed whether Jorjani was speaking as a private citizen on a matter of public concern. The court concluded that in this case, Jorjani was acting as a private citizen, and the topics of his comments were “easily” matters of public concern.
· Next, the court addressed whether the disruptions identified by NJIT to its functioning outweighed the First Amendment right of its employee. This part of the test—disruption to the operation of the school—is a burden that must be met by the governmental entity in order to succeed against a First Amendment claim.
NJIT pointed to disagreement among faculty and administrators, students’ disapproval of his comments, and the number of negative calls and emails. The court rejected these disruptions as a basis for outweighing Jorjani’s rights. The court noted that when applying the test, the employer must consider whether the speech at issue impairs employee harmony, has a detrimental impact on close working relationships where personal loyalty and confidence is necessary, impedes the performance of the speaker’s duties, or interferes with regular operations. The court also stated that the focus must be on what happened, not what might happen. Although a governmental entity can act to prevent future harm, and need not allow events to unfold to the extent that the disruption is evident, the governmental entity must ground predictions in reason, and not speculation.
The court concluded that there was no support for NJIT’s contention that student disapproval of Jorjani’s speech disrupted the administration of the university. The court stated that NJIT never identified the exact number of calls or complaints made in person or writing, nor were there any details about the students’ concerns. The court stated that there was no objective evidence that students questioned Jorjani’s ability to teach, grade, or supervise his students and there was no evidence of specific student upheaval or unwillingness to abide by university policies. The court found that the cited disputes among Jorjani and his colleagues were not enough of a disruption as the disputes did not interfere with the ability of either Jorjani or other faculty to fulfill their responsibilities.
The court found that NJIT’s obligation to respond to calls and emails could conceivably become so overwhelming in number or nature as to disrupt the normal operation of the school but that the record only established that, throughout this occurrence, there was at most a minor uptick in communications that required no additional staffing to support the single administrator who handled the inquiries.
Ultimately, the court concluded that the actual disruptions identified by NJIT were not sufficient to outweigh the First Amendment rights of Jorjani and that, therefore, NJIT’s decision to not renew his contract violated his civil rights.
The test for determining whether the free speech rights of an employee when speaking as a private citizen are outweighed by the disruption to the school entity caused by those comments is very fact specific. What is clear, however, is that once it is determined that the speech at issue is made by the employee in his or her private capacity and that the speech is about matters of “public concern,” the employer has a heavy burden to prove that the speech actually caused disruptions in the workplace. Mere conjecture about what might happen is not enough and the disruption that occurs needs to be substantial before action can be imposed on an employee based on the employee’s speech.
The problem school entities face in these scenarios is that there is often a great deal of pressure for them to “do something” about someone whose comments are viewed to be offensive. However, the consequences of taking action that interferes with an employee’s First Amendment rights are significant and careful review of the facts must take place before any action is imposed.
We will keep you informed of any further developments in this case.
Clients who have questions regarding issues discussed in this article, or any education law matter, should feel free to call us at 215-345-9111.