The University of Connecticut had the right to demote a dean for speaking out against university policies despite the First Amendment because he was a member of management, a federal appellate court said.

According to the Sept. 17 decision by the 2nd U.S. Circuit Court of Appeals in New York in Amir Faghri vs. University of Connecticut, Faghri was demoted from his position as dean of engineering in 2006 after he spoke out against university policy on several issues, including the university’s plans to open a regional campus in Dubai, and its plan to close its School of Allied Health, School of Family Studies and the College of Continuing Education.

After his demotion, Faghri filed a lawsuit against the university, its president and its provost, claiming he was demoted in retaliation for exercising his First Amendment right to free speech and for deprivation of property without due process of law, as required by the Fourteenth 14th Amendment.

Reversing a lower lower-court ruling that denied the university's motion for summary judgment dismissing the case, a three-judge panel unanimously held that the university was justified in demoting Faghri because of his management position.

“Because the deanship of the School of Engineering is an executive policymaking position, the management of the university was entitled to have such a position occupied by one who voiced support for, or at least did not voice opposition to, the university's policies,” the ruling stated.

“It was therefore entitled to remove Faghri from that position for publicly opposing the university policies. To be sure, the First Amendment protects Faghri's right to speak in opposition to university policies. He could not have been jailed or held liable for such speech or enjoined from speaking.

“But the management of a public institution, such as a university, is not required to retain in a management or policymaking position a person who publicly opposes its policies. Such an institution is entitled, for the sake of effective implementation of its policies, to have in management positions, especially high-ranking executive positions, persons who will support its policies, rather than persons who will undermine its goals by voicing public opposition to them.”

The case was remanded to the lower court.

Stephen Bergstein, a plaintiffs attorney with Bergstein & Ullrich LLP in Chester, New York, noted First Amendment issues apply only to public, not private, employers. Bergstein, who was not involved in the case, said the court held in this decision that “if you're upper-level management, your loyalty to the public entity outweighs your right to speak out, that at some point the further up the ladder you go, the fewer rights you have.”

Bergstein said that had Faghri—who retained his professorship—been just a teacher, he could not have been disciplined. 

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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