[00:00:00] Speaker 01:
We'll call the next case, Dr. Jensen versus Dr. Brown.

[00:01:08] Speaker 00:
Good morning, your honors.

[00:01:09] Speaker 00:
Can you hear me?

[00:01:10] Speaker 00:
Is that working?

[00:01:11] Speaker 00:
No.

[00:01:12] Speaker 00:
Let's see.

[00:01:12] Speaker 01:
I can hear you.

[00:01:13] Speaker 00:
You hear me?

[00:01:14] Speaker 01:
OK.

[00:01:14] Speaker 01:
That's better.

[00:01:15] Speaker 00:
OK, excellent.

[00:01:16] Speaker 00:
That works well?

[00:01:16] Speaker 01:
Yes.

[00:01:17] Speaker 00:
Excellent.

[00:01:18] Speaker 00:
Good morning, your honors.

[00:01:19] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:01:22] Speaker 00:
Sure.

[00:01:22] Speaker 00:
Thank you.

[00:01:23] Speaker 00:
It may please the court, your honors.

[00:01:25] Speaker 00:
My name is Daniel Ortner on behalf of the appellant Lars Jensen, who's here with us in the courtroom.

[00:01:30] Speaker 00:
Professor Jensen was disciplined and almost fired for his exercise of his First Amendment rights.

[00:01:38] Speaker 00:
The district court erred for three reasons in its dismissal of Professor Jensen's complaint.

[00:01:43] Speaker 00:
First of all, Professor Jensen should have been entitled to amend his complaint to fix any pleading defects in the complaint.

[00:01:51] Speaker 00:
The right to amend a complaint is given with extreme liberality under this court's precedent, and the district court didn't even explain its reasoning why it didn't give Professor Jensen a right to amend.

[00:01:59] Speaker 00:
That is reversible error under this court's precedent.

[00:02:03] Speaker 00:
Second, Professor Jensen suffers ongoing harm as a result of the material, the adverse material that remains in his employment file.

[00:02:13] Speaker 00:
The district court therefore erred in finding that his claims were barred by sovereign immunity.

[00:02:17] Speaker 00:
Third, Professor Jensen's right under this court's decision in Demers v. Austin to express himself on matters of public concern related to his teaching and scholarship

[00:02:27] Speaker 00:
was violated here and the district court didn't even apply the relevant test.

[00:02:33] Speaker 00:
It didn't apply the Denver's recurring test to the facts of this case.

[00:02:36] Speaker 00:
That was an error not to apply the test.

[00:02:39] Speaker 00:
And then when the court does do so, Professor Jensen's right to speak clearly outweighs any interest that the college has in disciplining Professor Jensen for his speech.

[00:02:50] Speaker 02:
Wait a second.

[00:02:51] Speaker 02:
Do we even decide that at this point?

[00:02:54] Speaker 02:
I mean, the governmental interest is the government's defense, and they haven't even answered the complaint.

[00:03:01] Speaker 02:
Is that right?

[00:03:02] Speaker 00:
So this was on a motion to dismiss.

[00:03:04] Speaker 00:
And really, the fact that this is a motion to dismiss is a big factor in this appeal, Your Honor, because in the motion to dismiss stage, the district court should have construed the complaint in the light most favorable to Professor Jensen, should have made all inferences in his favor, and instead it- Is there a case law specifically saying that under these circumstances, except

[00:03:21] Speaker 02:
If it's obvious from the complaint that there is no chance that the weighing comes favors the plaintiffs, that it shouldn't be decided on a motion to dismiss.

[00:03:35] Speaker 00:
Well, especially on a motion to dismiss stage, again, as you said, I mean, there hasn't been discovery here that you really have to take the allegations.

[00:03:40] Speaker 02:
But there's specific case law on this, and I don't think it's in your brief, but there is.

[00:03:44] Speaker 00:
Well, yes.

[00:03:45] Speaker 00:
The Demers case, obviously, is the case that most clearly establishes Professor Jensen's right in this case.

[00:03:50] Speaker 00:
The other cases where the court has said, like the case Moran v. Washington, for instance, the state of Washington, the court has said the district court has to apply the relevant test.

[00:03:58] Speaker 00:
It can't just say it's not clearly established.

[00:04:00] Speaker 00:
It's to look at the facts and apply the Demers pickering test to the facts of the case.

[00:04:05] Speaker 00:
So the district court erred in just failing to actually apply the relevant test to the facts of this case.

[00:04:10] Speaker 00:
And when you do so on qualified immunity, you look at the facts here.

[00:04:14] Speaker 00:
You look at the Demers case.

[00:04:16] Speaker 00:
Demers really is a close analog to this case.

[00:04:19] Speaker 00:
There you have a professor who passed out material to his colleagues in the university.

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It was a pamphlet.

[00:04:24] Speaker 00:
It was criticizing the university's actions, what they were doing with the department that he was a part of in the communications department.

[00:04:32] Speaker 00:
And he was disciplined in very much the same way as Professor Jensen was.

[00:04:35] Speaker 00:
There was an audit and a review and adverse material in his file, negative evaluations.

[00:04:39] Speaker 00:
It really, on all fours, in all meaningful respects, that case establishes the clearly, the Jensen's clearly established right in this case.

[00:04:48] Speaker 00:
So the district court really erred in failing to look at the facts of the Demers case and recognizing how closely analogous they are to the facts that we have here.

[00:04:57] Speaker 00:
And really here what you have is a case where you have the clearly, the professor's right to speak out.

[00:05:03] Speaker 00:
As the court recognized in Demers, that's a highly protected right given the university setting.

[00:05:08] Speaker 00:
When you apply Pickering or the Demers test, you have to look at the context in which it's taking place.

[00:05:14] Speaker 00:
This court has recognized repeatedly that universities are places where free speech is paramount.

[00:05:19] Speaker 00:
This court has recognized also that in the employment setting in universities,

[00:05:23] Speaker 00:
you expect a great degree of debate and discourse and disagreement even.

[00:05:28] Speaker 00:
In the Adamian case, for instance, the court mentioned that the debate in the college setting is expected to be vigorous, argumentative, unmeasured, and even distinctly unpleasant in its nature.

[00:05:38] Speaker 00:
So you expect a certain level of disagreement, of dissent in the university setting.

[00:05:44] Speaker 00:
In the case of Bauer v. Sampson,

[00:05:46] Speaker 00:
The court said that the vigorous exchange of ideas and the resulting tension between an administrator and its faculty is as much a part of college life as homecoming and final exams.

[00:05:57] Speaker 00:
You expect a degree of disagreement.

[00:05:59] Speaker 00:
And so when the university here said, you know, Professor Jensen was being insubordinate, when he just passed out flyers during a break, the record shows, you know, the complaint says it was during a break of a public meeting where he was allowed to be there.

[00:06:13] Speaker 00:
He was passing out material to his colleagues.

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in light of the college settings.

[00:06:17] Speaker 02:
It doesn't matter whether there seems to be some dispute, whether this is a public meeting or what that means.

[00:06:22] Speaker 02:
Doesn't it matter?

[00:06:24] Speaker 00:
I don't think it matters.

[00:06:25] Speaker 00:
I would say at this point, this is a motion to dismiss on the complaint.

[00:06:29] Speaker 02:
But what does public mean?

[00:06:30] Speaker 02:
It seemed to be open to the community, meaning the school community.

[00:06:33] Speaker 00:
It was announced publicly.

[00:06:35] Speaker 00:
Anyone could sign up for the Zoom of the meeting to join the meeting.

[00:06:38] Speaker 00:
Anyone could come to the meeting.

[00:06:39] Speaker 02:
Anyone meeting?

[00:06:39] Speaker 02:
I could.

[00:06:41] Speaker 00:
You could have signed up for it.

[00:06:43] Speaker 00:
Yes, yes, your honor.

[00:06:44] Speaker 02:
Does that make a difference?

[00:06:44] Speaker 02:
Suppose it was only open to members of the math department, or maybe it was only open to people in the college?

[00:06:53] Speaker 00:
No, it doesn't make a difference, your honor.

[00:06:55] Speaker 00:
This court, in Demers, for instance, Professor Demers there, passed it out material to his colleagues.

[00:07:01] Speaker 00:
It doesn't have to be publicized outside of the college community to be.

[00:07:04] Speaker 02:
But in fact, there are pickering cases where the individual was just talking to one other person.

[00:07:11] Speaker 00:
That's right.

[00:07:12] Speaker 00:
Connick v. Myers is an example of that where it was just colleagues in the lunch room that the person there was talking to.

[00:07:18] Speaker 00:
So you don't need it to be publicized widely.

[00:07:20] Speaker 00:
And this court has said so expressly.

[00:07:22] Speaker 02:
OK.

[00:07:23] Speaker 02:
So although the defendants seem to make a big deal of it, it doesn't really matter.

[00:07:30] Speaker 00:
No, it doesn't.

[00:07:31] Speaker 00:
And the facts should be construed in the light most favorable to Professor Jensen.

[00:07:36] Speaker 02:
But the facts don't matter.

[00:07:38] Speaker 02:
It doesn't matter whether he was speaking

[00:07:40] Speaker 02:
to the math department, whether it was just members of the math department or members of the school community or the world, it doesn't matter.

[00:07:49] Speaker 00:
Yes, that's right, Your Honor.

[00:07:50] Speaker 00:
We agree with that.

[00:07:51] Speaker 00:
It doesn't really matter.

[00:07:53] Speaker 00:
He was speaking on a matter of public concern.

[00:07:54] Speaker 00:
This is concerning standards for the math department lowering down the standards to make it easier for people to graduate.

[00:08:00] Speaker 00:
It's something that interests his colleagues, interests the public and employers.

[00:08:04] Speaker 00:
And he spoke about it, wrote about it to his colleagues, and passed it out.

[00:08:08] Speaker 00:
As you said, Your Honor, it doesn't matter whether it was just to his math colleagues or to a broader audience.

[00:08:13] Speaker 00:
That is speech on a matter of public concern.

[00:08:15] Speaker 00:
He had a right to do so.

[00:08:17] Speaker 00:
And here there's no disruption.

[00:08:18] Speaker 00:
The other side actually in the district court disclaimed any interest in focusing on disruption.

[00:08:23] Speaker 00:
They don't even really try to argue that there was substantial disruption in this case.

[00:08:28] Speaker 00:
And the claim of insubordination simply doesn't hold up in light of the college environment, you know, just merely passing out material when you're superior,

[00:08:35] Speaker 00:
Dean doesn't want you to, is not in subordination under this court's precedent.

[00:08:40] Speaker 00:
And so really when you look at the facts here, the district court, first of all, didn't actually look at the facts carefully like it should have, and then when you do, this is a case where you have a clearly established right, and the district court failed to recognize that.

[00:08:51] Speaker 00:
So what relief is Dr. Jensen seeking?

[00:08:54] Speaker 00:
So Professor Jensen is seeking a couple of things in this case.

[00:08:58] Speaker 00:
First of all, he's seeking injunctive relief from the district court to clear his file from adverse material in his file, to change his evaluations back to excellent, which is what he was entitled to had the retaliation not taken place against him.

[00:09:14] Speaker 00:
He's seeking an injunction.

[00:09:15] Speaker 00:
He claims in his complaint that there's an ongoing policy of retaliation against professors for his speech.

[00:09:19] Speaker 00:
So he's seeking an injunction against the ongoing policy of retaliation.

[00:09:23] Speaker 00:
And then also you're seeking damages as well.

[00:09:25] Speaker 02:
On that issue, it seems that you really would have to amend the complaint because there's nothing in the complaint specific about any other incident.

[00:09:32] Speaker 00:
Other incidents of retaliation.

[00:09:35] Speaker 00:
I think, you know, the complaint, again, the motion is misstaged and needs to be interpreted liberally in light of the allegations in the complaint.

[00:09:44] Speaker 02:
For instance, he points to... Does he even allege that this is a policy?

[00:09:46] Speaker 00:
He does allege that it's a policy, yes, in the complaint.

[00:09:48] Speaker 02:
Okay, just to give any examples.

[00:09:49] Speaker 00:
Doesn't give any other examples.

[00:09:51] Speaker 00:
That's right, Your Honor.

[00:09:52] Speaker 00:
And again, the right to amend should have been given liberally, and he should have been able to expand that.

[00:09:56] Speaker 00:
But he didn't need that.

[00:09:57] Speaker 00:
There's enough here.

[00:09:59] Speaker 00:
Really, I mean, if you're talking about the sovereign immunity issue, it's a question of what is the nature of the relief that's being sought in this case?

[00:10:04] Speaker 00:
Is it like damages?

[00:10:07] Speaker 02:
I had always understood the sovereign immunity has to have to do with money, right?

[00:10:13] Speaker 02:
This has nothing to do with money.

[00:10:15] Speaker 00:
Yes, exactly, Your Honor.

[00:10:16] Speaker 00:
Even some cases where there's money involved, as long as what's incidentally affects the fisc of the government, it's still seen as forward-looking.

[00:10:22] Speaker 00:
But here, that's not even the case at all.

[00:10:23] Speaker 02:
There's nothing like that.

[00:10:24] Speaker 02:
He also says something about he wants to have... One of the reasons he wants to have this expunged and he wants... I guess he wants an order that he should get merit pay going forward based on

[00:10:38] Speaker 02:
A proper file yet.

[00:10:39] Speaker 00:
Yes, he says there's ongoing effect of this material on his file.

[00:10:43] Speaker 00:
So it's an ongoing harm every every day that the materials in his file is hurting.

[00:10:46] Speaker 02:
He's not very specific about that either, but he seems to suggest that he is getting paid less because of what's in his.

[00:10:53] Speaker 00:
Yes, and it's affecting him every time he's being evaluated.

[00:10:56] Speaker 00:
He also mentions that it limits his... What do you mean it's affecting him every time he's being evaluated?

[00:11:00] Speaker 00:
In the question of whether he gets a merit pay increase.

[00:11:02] Speaker 00:
They consider past performance in that process.

[00:11:05] Speaker 02:
But he's not looking for back pay, he's looking for a future.

[00:11:08] Speaker 02:
He's looking for it not to affect his pay in the future.

[00:11:11] Speaker 00:
Yes, he is also seeking damages, and that's why the qualified immunity is an issue in the case.

[00:11:14] Speaker 00:
But for the forward-looking relief that's related to sovereign immunity that he's seeking in the future, the file to be expunged.

[00:11:20] Speaker 02:
That might be a problem on an Edelman versus Jordan

[00:11:25] Speaker 02:
problem as to the 11th Amendment.

[00:11:29] Speaker 00:
Under Edelman, the Court in Edelman says even if money might eventually be involved in it, as long as what you're seeking is forward-looking in its nature, that is fine under Ex parte Young.

[00:11:43] Speaker 00:
So I would say that that is still covered.

[00:11:45] Speaker 00:
But here, there's clear relief that is forward-looking, including the removal of material from this file.

[00:11:50] Speaker 02:
He suggests at one point that they could still have another termination hearing

[00:11:55] Speaker 02:
against him.

[00:11:56] Speaker 02:
Based on the current file, the defendants say no, they couldn't.

[00:12:00] Speaker 00:
That's right.

[00:12:01] Speaker 00:
They could, Your Honor.

[00:12:02] Speaker 00:
Nothing has been removed from his file.

[00:12:05] Speaker 00:
The allegations against him are still there.

[00:12:07] Speaker 00:
He's not been cleared.

[00:12:09] Speaker 02:
What if he doesn't do anything again to aggravate them?

[00:12:12] Speaker 00:
There's no guarantee they couldn't go after him again for it.

[00:12:15] Speaker 02:
The government says specifically that there's some rule that says they couldn't.

[00:12:20] Speaker 00:
My understanding is that there's nothing preventing them from doing so.

[00:12:23] Speaker 00:
It's still in his file.

[00:12:25] Speaker 00:
They try to make it sound like it's an exoneration of some kind, but it was just a decision not to fire him.

[00:12:30] Speaker 00:
But the material remains in his file.

[00:12:32] Speaker 00:
There's no clearing of his name.

[00:12:36] Speaker 00:
And that's what's having an ongoing chilling effect on his speech as well.

[00:12:39] Speaker 00:
He does mention his complaint that he's chilled.

[00:12:41] Speaker 00:
This is paragraph 88 of the amended complaint.

[00:12:44] Speaker 00:
chilled from participating in ongoing speech on campus as a result of the fact that he now knows that they'll come after him if he speaks out critically of the administration's preferred policy.

[00:12:53] Speaker 00:
That's another ongoing harm under the fact that this is a First Amendment case.

[00:12:57] Speaker 00:
The chilling effect is particularly pernicious here.

[00:12:59] Speaker 04:
Have you proposed to amend your complaint?

[00:13:02] Speaker 00:
So there's several things that Professor Jensen would add to his complaint.

[00:13:06] Speaker 00:
Actually, before the district court, there was, in the motion to dismiss briefing, additional material that came out in discovery, where the magistrate allowed discovery, emails that showed intention to go after Professor Jensen for his speech, that established the motives and what was going on before the campus event where he spoke out.

[00:13:26] Speaker 00:
That material, you know, the district court was aware of that, and that would be added to any amended complaint and didn't allow an amendment.

[00:13:33] Speaker 00:
There are some allegations the district court pointed out were not alleged as clearly as they might have liked it to be, like the procedural due process claim, for instance.

[00:13:40] Speaker 00:
They said, you know, we didn't adequately allege it and we're not going to consider it.

[00:13:44] Speaker 00:
That could be added to the complaint.

[00:13:45] Speaker 00:
Additional developments since the filing of the complaint regarding ongoing retaliation, ongoing effects, would be added to the complaint as well.

[00:13:53] Speaker 02:
I mean, I guess this is where we've gotten ourselves after Twombly and ICBA.

[00:13:56] Speaker 02:
Why should all this be in the complaint?

[00:14:00] Speaker 02:
Why should we simply be going on to discovery and summary judgment or trial?

[00:14:06] Speaker 02:
What's the point of putting this in the complaint?

[00:14:08] Speaker 02:
You have enough, you have pieces of this in the complaint and you can stand on them.

[00:14:14] Speaker 02:
I would suggest that you don't get up next time and say first that I want to admit my complaint.

[00:14:20] Speaker 00:
Well, I think you're right.

[00:14:21] Speaker 00:
We do have more than enough in our complaint to survive both qualified immunity and sovereign immunity and to establish Professor Jensen's

[00:14:29] Speaker 00:
injury here, and especially when you take into account the fact that a lot of what they're arguing is really affirmative defenses.

[00:14:35] Speaker 00:
I mean, qualified immunity isn't affirmative defense.

[00:14:37] Speaker 00:
There's no obligation in the complaint to allege the rights there or to point to cases in the complaint.

[00:14:43] Speaker 00:
It seems like they want that kind of level of pleading where you have to point to specific cases, rebut defenses in that context, and that's just not required under, especially in light of the 12b6 standard.

[00:14:54] Speaker 00:
Professor Jensen has, his complaint should have survived

[00:14:58] Speaker 00:
The motion dismissed, and the district court was wrong, and this court should reverse.

[00:15:03] Speaker 01:
Do you want to reserve?

[00:15:04] Speaker 00:
Yes.

[00:15:04] Speaker 00:
Very well.

[00:15:05] Speaker 00:
Thank you.

[00:15:23] Speaker 03:
Let's bring this down to my size.

[00:15:25] Speaker 03:
Good morning, Your Honors, and may it please the court.

[00:15:27] Speaker 03:
My name is Kai Beverly Graham.

[00:15:29] Speaker 03:
I am counsel for the appellees in this matter.

[00:15:31] Speaker 03:
I'm going to start with talking about the qualified immunity issues in this case.

[00:15:36] Speaker 03:
The key question there as the argument has been framed is whether or not the Demers decision stands for a clearly established right.

[00:15:43] Speaker 03:
The case law, in particular the Wesby case from the Supreme Court, which is very recent, gives us a pretty exhaustive understanding, and I lay it out in my briefing, as to what we need to establish a clearly established right.

[00:15:55] Speaker 03:
One of the key points that isn't present here is that the administrator on the ground facing the circumstances needs to be able to understand the contours of the right.

[00:16:03] Speaker 03:
The administrator needs to be able to apply the rights to the facts facing them without any doubt.

[00:16:10] Speaker 03:
The Demers case doesn't establish a right to that degree.

[00:16:13] Speaker 03:
And that's because the Demers case actually found there was no qualified immunity on the facts of the issue and remanded to the district court to look at the issue of weighing the governmental interest.

[00:16:23] Speaker 03:
And the Demers court spent some time discussing the complexity of weighing governmental interest.

[00:16:29] Speaker 03:
The court indicated that especially in the academic context, those... I'm sorry.

[00:16:34] Speaker 02:
How can we do that at all on a 12b6 in general?

[00:16:39] Speaker 03:
Your Honor, I think that's generally a difficult task.

[00:16:42] Speaker 03:
In this case, it's not, and that's because of the nature of the allegations in the complaint.

[00:16:47] Speaker 03:
The crux of the complaint, and this really cries through the allegations, is really the events at the math summit at TMCC.

[00:16:53] Speaker 02:
But it's not all of it.

[00:16:55] Speaker 03:
I'm sorry?

[00:16:56] Speaker 02:
It's not all of it.

[00:16:57] Speaker 03:
There are some conclusory allegations about other things, but the real weight, the real meat of the complaint is all centered around what happened at the mass summit.

[00:17:06] Speaker 03:
And Dr. Jensen alleges that with verified allegations.

[00:17:09] Speaker 03:
It's what ultimately could be treated as evidence.

[00:17:12] Speaker 03:
And he describes it in great detail.

[00:17:13] Speaker 03:
And what he describes is not a public meeting.

[00:17:16] Speaker 03:
It's actually a professional development event that was not open to the public.

[00:17:19] Speaker 03:
There's no allegation this is a public forum.

[00:17:21] Speaker 02:
What difference does it make?

[00:17:23] Speaker 03:
It makes a difference because that goes directly to the supervisor's government interest, your honor, which I can explain.

[00:17:29] Speaker 02:
At that work meeting, which was... First of all, it was open to the whole college, right?

[00:17:36] Speaker 03:
It was open to the math department.

[00:17:38] Speaker 03:
It was open to faculty who are eligible for professional development.

[00:17:42] Speaker 03:
And that's on the record.

[00:17:43] Speaker 03:
We can see what Dr. Jensen attaches as the agenda on the record.

[00:17:48] Speaker 03:
That's at 57.

[00:17:49] Speaker 03:
There's an indication that this is a professional development event.

[00:17:52] Speaker 03:
There's actually a link for faculty to click on to register.

[00:17:54] Speaker 02:
I thought it's open to the community.

[00:17:56] Speaker 03:
Well, I'm not sure what the community means, and that's part of the problem.

[00:17:58] Speaker 03:
It's a little vague.

[00:18:00] Speaker 02:
I thought it meant the college.

[00:18:02] Speaker 03:
Well, those at the college who attend professional development events.

[00:18:05] Speaker 03:
So that doesn't necessarily include all classes of employees.

[00:18:09] Speaker 03:
But some class of employees were invited to this event.

[00:18:12] Speaker 03:
That is true.

[00:18:13] Speaker 03:
But as the complaint tells us, the event was pursuant to a very specific agenda, had a very specific purpose.

[00:18:19] Speaker 03:
which was to go over implementation of a new policy that had come down from the college's Board of Regents.

[00:18:24] Speaker 03:
It was not open to any discussion about this policy.

[00:18:27] Speaker 03:
It was specifically for the purpose of discussing implementation of the policy.

[00:18:31] Speaker 03:
It was a working meeting.

[00:18:33] Speaker 03:
It was also important.

[00:18:34] Speaker 02:
Where this document is that you just referred to?

[00:18:43] Speaker 03:
So I want to make sure I have the precise site.

[00:18:45] Speaker 03:
So that's at ER57 on the record.

[00:18:49] Speaker 03:
And this is a document that is labeled as the Math Summit Agenda, which in turn is incorporated by reference in the complaint.

[00:18:55] Speaker 03:
And on that document, you can see there's an indication for the Math Summit.

[00:19:00] Speaker 03:
And right below it is instructions to pre-register for the session using the ProDev website, which our position is manifestly refers to professional development.

[00:19:12] Speaker 03:
Importantly, at that meeting, as is alleged in the complaint, that meeting was pursuant to this agenda.

[00:19:18] Speaker 03:
The agenda was established according to the complaint by Dr. Julie Ellsworth, who we can clearly infer from the complaint was Dr. Jensen's supervisor at the time.

[00:19:26] Speaker 03:
What the complaint alleges is that during a question and answer session that was specifically supposed to be about implementation of this plan, Dr. Jensen announced that he wanted to look under the hood, which was clearly an indication he wanted to criticize the plan, not discuss its implementation.

[00:19:40] Speaker 03:
And we know that he wanted to criticize the plan because he attaches to the complaint a document that he ultimately typed up that reduced his thoughts to writing, which has nothing to do with implementation of the plan and is purely criticism of this mandate that came down from the systems board.

[00:19:56] Speaker 03:
So our position is that Dr. Jensen's supervisor had, based on the allegations in the complaint, a reasonable interest in keeping him on topic

[00:20:05] Speaker 03:
Case law tells us we don't have to wait for a situation to devolve into actual disruption.

[00:20:11] Speaker 03:
If it's clear we can see it coming down the road, that's sufficient.

[00:20:15] Speaker 03:
And because Dr. Jensen alleges all this in the complaint, this is an issue where we need further discovery.

[00:20:21] Speaker 03:
He tells us in great detail in his verified allegations what happened to that meeting.

[00:20:25] Speaker 03:
When his supervisor instructed him to stay on topic,

[00:20:28] Speaker 03:
He left the event, typed up his comments, and instead of posting them on a board that was available in the room for this purpose, as his supervisor instructed him, he decided to violate her instructions and hand them out directly to participants.

[00:20:41] Speaker 03:
When his supervisor indicated he should stop... During a break.

[00:20:43] Speaker 03:
I'm sorry.

[00:20:44] Speaker 02:
During a break.

[00:20:46] Speaker 03:
He does allege it's during a break, but is also still in the same room as the meeting is taking place.

[00:20:50] Speaker 03:
I'm not aware of any authority that says that the administrator's authority ceases just because the employee's on a break.

[00:20:57] Speaker 03:
There's lots of conduct that an employee could engage in that would be problematic, and they shouldn't be able to get away with it just because it's on a break.

[00:21:03] Speaker 03:
So I'm not sure that makes a difference.

[00:21:05] Speaker 03:
What is critical here is that his direct supervisor repeatedly instructed him to cease doing what he was doing.

[00:21:11] Speaker 03:
This is alleged in the complaint.

[00:21:13] Speaker 03:
And in this room full of people, he openly defied her, refused to follow her instruction, and continued to pass out the document, even though he had an alternative means of expression available to him.

[00:21:22] Speaker 03:
So our position is that on these facts, as they're alleged in the verified complaint, the governmental interest is absolutely clear.

[00:21:29] Speaker 03:
The administrators had a reasonable interest in preventing this conduct.

[00:21:32] Speaker 03:
They had an interest in

[00:21:34] Speaker 03:
preserving discipline, and they had an interest in the supervisor's authority not being so directly challenged in front of all of her colleagues.

[00:21:42] Speaker 03:
I think that the degradation of her authority, the challenging nature of that conduct in the context of the complaint is manifest.

[00:21:49] Speaker 03:
Because of this governmental interest, under Demers, there's a complicated balancing that has to take place to determine

[00:21:55] Speaker 03:
whether or not the government's interest outweighs Dr. Jensen's interest.

[00:21:59] Speaker 03:
And because of the necessity of that complicated balancing, this couldn't possibly be a case where the law is so clearly established, as Wesby requires, that any administrator could easily apply it on the ground, the contours are clear, etc.

[00:22:12] Speaker 03:
The contours here are not clear because of this complicated balancing that has to take place.

[00:22:15] Speaker 03:
What we're suggesting is that the administrators could have held the Demers case in their hands while making these decisions, and what is in the four corners of that case is not clear enough

[00:22:24] Speaker 03:
to establish that the discipline for this insubordinate conduct is barred by the First Amendment.

[00:22:30] Speaker 04:
And so that... It would seem to me that if you take the allegations in the complaint in the light most favorable to the plaintiff, the pleader, one could reasonably conclude that his so-called criticism as you described it was nothing more than a way of raising a discussion about the proposed changes that were going to take place at the college as a result of the change

[00:22:54] Speaker 04:
to a co-requisite plan as opposed to a prerequisite scheme.

[00:23:04] Speaker 04:
Why isn't that the way we should analyze it?

[00:23:08] Speaker 03:
Well, we have the document that was passed out in front of us.

[00:23:11] Speaker 03:
And so we can see clearly from the four corners of that document that really what it is is a criticism.

[00:23:16] Speaker 03:
It's not about implementation, which was the agendized notice topic of that day.

[00:23:24] Speaker 04:
Well, he just wanted to, why isn't it that he just, he passed out the document and he wanted to raise a discussion about what he saw as the negative consequences of this new plan.

[00:23:37] Speaker 03:
Well, I don't understand Demers to provide an absolute right for that.

[00:23:41] Speaker 03:
We have to keep in mind, Your Honor, this is a workplace.

[00:23:43] Speaker 04:
This is a workplace meeting.

[00:23:45] Speaker 04:
Your whole argument was that, look, based on the allegations in the complaint, there's no qualified immunity.

[00:23:52] Speaker 04:
I mean, there is qualified immunity here.

[00:23:55] Speaker 04:
There is qualified immunity, right?

[00:23:57] Speaker 03:
Yes, that is correct.

[00:23:58] Speaker 04:
That is correct.

[00:23:59] Speaker 04:
But that to me suggests that you're not taking the allegations in the complaint in the light most favorable

[00:24:07] Speaker 03:
to Professor Jensen.

[00:24:09] Speaker 03:
Well, my understanding of that requirement is I think there's a reasonableness in there, reasonably most favorable, reasonably favorable to the plaintiff.

[00:24:14] Speaker 03:
I don't think that anything requires us to take allegations to such an extreme understanding that it kind of cuts against what the document itself is telling us.

[00:24:24] Speaker 03:
And our position is that the document he's attached, which shows his comments, makes clear.

[00:24:28] Speaker 04:
As I listen to your comments, you added

[00:24:33] Speaker 04:
I got the impression that you were suggesting that by what he did, it caused disruption rather than discussion.

[00:24:43] Speaker 03:
Well, as my colleague pointed out, our position isn't that there was actual disruption, at least not as is alleged to date.

[00:24:49] Speaker 03:
And nothing requires the administrator to wait for actual disruption.

[00:24:52] Speaker 03:
Well, there's nothing in the complaint that says there was any disruption.

[00:24:57] Speaker 03:
Correct.

[00:24:57] Speaker 03:
So our view is that regardless of the question of disruption, what we have here as alleged is clear from the allegations is a naked manifest challenge in a room full of people to a supervisor's authority at a meeting at work.

[00:25:10] Speaker 03:
And our view, this is not alleged to be a public forum.

[00:25:12] Speaker 03:
Dr. Jensen could have stepped outside of the room into one of the public spaces at the college and criticized the plan to his heart's content.

[00:25:18] Speaker 03:
But he was in a meeting room.

[00:25:19] Speaker 03:
A meeting was taking place.

[00:25:21] Speaker 03:
And in that context, our view is that it is not at all clearly established under Demers that the administration didn't have the right to act.

[00:25:28] Speaker 03:
Well, let me ask you this.

[00:25:29] Speaker 04:
Was it a meeting where, what was the, what was the professor's name that was conducting the meeting?

[00:25:37] Speaker 04:
Dr. Ellsworth.

[00:25:38] Speaker 04:
Dr. Ellsworth.

[00:25:38] Speaker 04:
Was it Dr. Ellsworth?

[00:25:40] Speaker 04:
Was there just to tell the audience that this is what was going to happen?

[00:25:45] Speaker 03:
I'm sorry, I didn't understand.

[00:25:46] Speaker 04:
Well, was Dr. Ellsworth there just as she led the meeting, as she led this

[00:25:51] Speaker 04:
meeting, was she there just to tell the audience, the members of the group that was there, the people that were there, that this co-requisite scheme, this is how it's going to play out, or was it there, let's, you know,

[00:26:10] Speaker 04:
What can we do to implement this the most effective way?

[00:26:13] Speaker 04:
You know, we want to solicit ideas, you know, complaints, concerns.

[00:26:19] Speaker 04:
It was the former, Your Honor.

[00:26:20] Speaker 04:
The former.

[00:26:20] Speaker 04:
She was just here to tell them this is what we're doing and no discussion.

[00:26:26] Speaker 04:
And any criticism is off the base.

[00:26:29] Speaker 03:
Questions were specifically contemplated, but this is an operational meeting.

[00:26:34] Speaker 03:
So the purpose is to tell, it was indeed to tell the folks.

[00:26:36] Speaker 02:
I mean, I've read the agenda now.

[00:26:38] Speaker 02:
It doesn't certainly read that way.

[00:26:41] Speaker 02:
Well, that implementation was... First of all, it's clear from the agenda that it was open to the whole college.

[00:26:47] Speaker 02:
That's clear from the agenda.

[00:26:50] Speaker 03:
Yes, employees of the college, not the public at large, which is why it's not a public forum, which is one of our points.

[00:26:54] Speaker 02:
Okay.

[00:27:02] Speaker 02:
But it also... I'm sorry, I have to just find it again.

[00:27:09] Speaker 01:
Go ahead.

[00:27:09] Speaker 01:
I'll just jump in real quick.

[00:27:10] Speaker 01:
So Demers was a summary judgment case, correct?

[00:27:13] Speaker 01:
Correct.

[00:27:13] Speaker 01:
This case is not.

[00:27:14] Speaker 01:
That is correct.

[00:27:15] Speaker 01:
It seems to me that's a pretty big hill you've got to get over.

[00:27:19] Speaker 01:
So give me over that hill.

[00:27:21] Speaker 03:
Again, Your Honor, as I mentioned before, in many cases, I would agree.

[00:27:26] Speaker 03:
And that might be the end of it and simply allow repleting.

[00:27:29] Speaker 03:
But in this case, the clear core nucleus of what Dr. Jensen is complaining about is the math summit.

[00:27:36] Speaker 03:
And he describes that in tremendous detail, with verified allegations.

[00:27:39] Speaker 03:
There's no room to move with those verified allegations.

[00:27:42] Speaker 03:
There's no room to change the allegations, to suggest that he didn't defy Dr. Ellsworth's authority.

[00:27:49] Speaker 03:
There's really nowhere else to go on this record.

[00:27:51] Speaker 02:
And there's no indication that there's anything that's going to- Well, she told him to stop talking, and he stopped talking, right?

[00:27:58] Speaker 02:
Then he went and he printed out this piece of paper, and he brought it in.

[00:28:02] Speaker 02:
She didn't tell him, don't bring a piece of paper.

[00:28:05] Speaker 03:
I need to.

[00:28:07] Speaker 02:
I'm sorry.

[00:28:07] Speaker 02:
And then so during the break, he hands out this piece of paper.

[00:28:10] Speaker 02:
Now, she obviously took great offense, but I don't know that that was on the pleadings without any evidence or anything, a defiance of something she'd said, because she didn't say it.

[00:28:23] Speaker 03:
Well, Your Honor, what the complaint alleges is that she didn't tell him in the first instance to stop talking.

[00:28:29] Speaker 03:
She told him, if you want to comment on this, go post it on the board that's provided for that purpose.

[00:28:34] Speaker 03:
And that is that he directly defied that instruction.

[00:28:37] Speaker 03:
So that was the first instance of insubordination.

[00:28:40] Speaker 03:
He then continued to try and pass the paper out in defiance of our instructions.

[00:28:44] Speaker 03:
So there was our view as a clear instruction that he acted in defiance of.

[00:28:51] Speaker 02:
Well, this all morning summit is a time for sharing planned course and curriculum changes across the math department with members of the broadest TMCC interest.

[00:29:04] Speaker 02:
And then we're going to learn about various things.

[00:29:08] Speaker 02:
And then they're going to have later says they're going to have breakout sessions to talk about it.

[00:29:15] Speaker 02:
Breakout sessions starting at 1030.

[00:29:18] Speaker 02:
So it certainly seems as if there was supposed to be a discussion and not simply a bunch of headaches.

[00:29:24] Speaker 03:
Oh, indeed, it was meant for a discussion, but on a very particular topic, which is implementation.

[00:29:28] Speaker 03:
Implementation presupposes this is what we're doing.

[00:29:30] Speaker 02:
OK, that's a different answer than you could have judged by us before.

[00:29:34] Speaker 03:
Oh, I may have misspoken, and I apologize.

[00:29:35] Speaker 03:
I think that's what I intended to express, and if I didn't express that clearly before, I apologize.

[00:29:44] Speaker 03:
Your honors, if I may, briefly, just on the sovereign immunity point, as my time is almost up, our position is quite simple.

[00:29:52] Speaker 03:
to be entitled to accept the ex parte Young exception to sovereign immunity, the complaint needs to adequately allege some kind of entitlement to prospective injunctive relief.

[00:30:03] Speaker 02:
And our position is that- Where did this come from?

[00:30:05] Speaker 02:
I mean, my understanding is that all of the Supreme Court cases on qualified immunity deal in some way or other with money.

[00:30:15] Speaker 02:
I mean, with sovereign immunity.

[00:30:17] Speaker 02:
And that the rationale in Edelman v. Jordan and all of those cases is

[00:30:21] Speaker 02:
Once you're reaching the public fisc, then there's an immunity problem.

[00:30:28] Speaker 02:
And this has nothing to do with the public fisc.

[00:30:34] Speaker 02:
You're taking, I looked at, is it Papasan?

[00:30:38] Speaker 02:
You're taking a sentence out of context from Papasan or the district court was, because Papasan was a money case.

[00:30:45] Speaker 02:
And I don't understand why, when you're not dealing in money, any of this has anything to do with sovereign immunity.

[00:30:52] Speaker 03:
Well, numerous of the cases refer to an ongoing violation.

[00:30:54] Speaker 02:
Yes, but they're always in the context of money.

[00:31:00] Speaker 03:
Well, Your Honor, our position is, nevertheless, that in order to be entitled to injunctive relief, even step aside from ex parte young and just take a more backed up, holistic view,

[00:31:09] Speaker 03:
To be entitled to injunctive relief, the complaint needs to plausibly allege some set of facts which, if true, would establish what the relief is fixing.

[00:31:17] Speaker 03:
What ongoing harm is this injunction going to fix?

[00:31:20] Speaker 03:
And that's where the complaint is absolutely silent.

[00:31:23] Speaker 03:
Other than a few conclusive allegations of ongoing reputational harm or loss of employment, which don't have a shred of detail supporting them, there's no- What about the suggestion that they could, with all this documentation in the record and that

[00:31:39] Speaker 02:
the determination was simply not to fire him, that they could try and fire him again?

[00:31:44] Speaker 03:
Well, Your Honor, a couple points in response to that.

[00:31:47] Speaker 03:
I don't have the Nevada system of higher education code in front of me, but I can tell you that the sort of proceeding that Dr. Jensen was subject to has, I believe, a 180-day deadline to complete, and then those facts are done with.

[00:31:59] Speaker 03:
So there's really no realistic way that this is going to be re-litigated.

[00:32:02] Speaker 03:
But another point would be you could always say that.

[00:32:05] Speaker 03:
Regardless of what happens in the litigation, if Dr. Jensen violates the college code, he could always be disciplined again.

[00:32:09] Speaker 02:
No, no, I'm talking about even if he doesn't do anything else.

[00:32:13] Speaker 03:
Well, there's no way to guarantee that somebody will never do anything wrongfully.

[00:32:17] Speaker 03:
But our position is that, nevertheless, in order to be entitled to injunctive relief, Dr. Jensen needs to allege some set of facts that- What about the suggestion that it's affecting his merit pay?

[00:32:27] Speaker 03:
I believe the allegation in the complaint is a speculative allegation that may affect merit pay.

[00:32:33] Speaker 03:
I don't think there's any allegation that his merit pay has actually been affected in any way.

[00:32:37] Speaker 03:
That points to the very issue.

[00:32:39] Speaker 03:
What would an injunction accomplish here?

[00:32:41] Speaker 03:
Let me ask you this.

[00:32:42] Speaker 02:
Suppose we say he can't go forward now and in two years they in fact say we're not going to give you a merit increase because of what's in your record.

[00:32:56] Speaker 02:
Can he sue then?

[00:32:58] Speaker 03:
Well, that would be a new harm.

[00:32:59] Speaker 03:
So I believe at that time he would be able to.

[00:33:01] Speaker 02:
It would be a new harm, but it would be based on things that happened years ago.

[00:33:05] Speaker 03:
Yes, I can see that.

[00:33:07] Speaker 03:
In that hypothetical, that would be based on things that happened years ago, but Dr. Jensen would still have relief due to the occurrence of the new harm.

[00:33:13] Speaker 03:
And at that time, under facts that are alleged like that, there might be a basis.

[00:33:19] Speaker 02:
You would argue that there was a limitations period because he'd already

[00:33:23] Speaker 02:
the underlying facts were established and they're in their file and how can you go question them now?

[00:33:28] Speaker 03:
I think the claim accrues for purposes of limitations when the harm occurs.

[00:33:31] Speaker 03:
So under the scenario you've articulated, Your Honor, I don't believe I would have a statute of limitations argument.

[00:33:36] Speaker 04:
So those negative evaluations remain in his file?

[00:33:39] Speaker 03:
Well, first of all, the NC code, the VATA system of higher education code, requires that because Dr. Jensen wasn't terminated at his termination hearing, and we quibble over whether that's prevailing, but that count sure looks like a victory to me, his evaluation was automatically upgraded.

[00:33:57] Speaker 04:
That's not my question.

[00:33:58] Speaker 03:
Well, so it's no longer really a negative.

[00:34:00] Speaker 03:
Do they remain in his file?

[00:34:02] Speaker 03:
Well, what I was trying to indicate is I don't think what remains is actually negative anymore because the unsatisfactory was necessarily removed by operations of the college's rules.

[00:34:10] Speaker 03:
However, the files themselves with the qualitative commentary that one might perceive as negative, yes, are in the file.

[00:34:17] Speaker 02:
So there's now an excellent evaluation in the file instead of the one that was there before?

[00:34:25] Speaker 03:
I don't believe the requirement is to upgrade to excellent.

[00:34:27] Speaker 03:
I think it goes to a mid-level satisfactory or something like that.

[00:34:33] Speaker 03:
But what's important is that

[00:34:36] Speaker 03:
Even if that material is still in the file, nothing tells us what the injunction will do, removing the file.

[00:34:42] Speaker 03:
Nothing tells us how an injunction removing the file is going to alleviate the harm that Dr. Jensen is allegedly occurring, because he doesn't connect the file and the pleading to the harm.

[00:34:51] Speaker 03:
There's no allegation that the administrators are disclosing the file, causing this alleged reputational harm, these alleged career difficulties.

[00:34:58] Speaker 03:
There's no allegation that explains how the presence of the file flows into the supposed psychological harm that's being suffered.

[00:35:04] Speaker 03:
And that's the key problem.

[00:35:07] Speaker 03:
And I see that my time is up, Your Honor, but I'm happy to answer any additional questions.

[00:35:10] Speaker 01:
Thank you very much, Counsel.

[00:35:11] Speaker 03:
Thank you, Your Honors.

[00:35:25] Speaker 00:
Thank you, Your Honor's Mate.

[00:35:26] Speaker 00:
A couple of quick points on rebuttal.

[00:35:28] Speaker 00:
First of all, in sovereign immunity, as the question asked just now, his file was not upgraded to the excellent that it was entitled to.

[00:35:34] Speaker 00:
It still says it was just the lowest level of satisfactory, and all the adverse material remains in his file, including the letter, the investigation.

[00:35:41] Speaker 00:
All that's still there.

[00:35:42] Speaker 00:
So it did upgrade it from unsatisfactory, but it certainly didn't give him what he would have been entitled to without the retaliation against him.

[00:35:49] Speaker 00:
On the allegations for sovereign immunity, I would point the court to the RWV Columbia Basin College case.

[00:35:56] Speaker 00:
All that's required is that President Jensen allege not prove the ongoing harm, and he's clearly done that here in this complaint.

[00:36:04] Speaker 00:
He doesn't need to prove for sovereign immunity purposes.

[00:36:06] Speaker 00:
It's really just a question of what's the nature of the relief he's seeking.

[00:36:09] Speaker 02:
Is it damages or is it ongoing?

[00:36:11] Speaker 02:
Do you think that this standard applies outside of a money context?

[00:36:14] Speaker 00:
No, and all the cases that we cite are clearly in our favor.

[00:36:17] Speaker 00:
They don't cite any cases going the other way.

[00:36:18] Speaker 00:
We cite several cases that show that expunging records, for instance, is forward-looking relief.

[00:36:24] Speaker 00:
There are no cases to the contrary.

[00:36:25] Speaker 02:
Well, expunging records is probably right.

[00:36:27] Speaker 02:
But more broadly, the sovereign immunity concern has always been in the context of the public fist.

[00:36:37] Speaker 00:
That's correct, Your Honor.

[00:36:38] Speaker 00:
Turning really quickly to qualified immunity,

[00:36:43] Speaker 00:
You know, again, at this point, at this stage, is the motion dismissed.

[00:36:46] Speaker 00:
The facts have to be interpreted in light most favorable to Professor Jensen.

[00:36:49] Speaker 00:
And here you have, and I would just point the court to the fact that the other side disclaimed any interest in disruption as being one of their interests.

[00:36:58] Speaker 00:
They did so in the reply brief in the motion dismissed.

[00:37:01] Speaker 00:
On page 5 of their reply group, they said, it doesn't matter whether there was disruption.

[00:37:05] Speaker 00:
All they're relying on is this vague claim of insubordination.

[00:37:08] Speaker 00:
In this meeting where he was there, allowed to be there, passing out material to his colleagues, the fact that there was a decision doesn't mean the debate has to stop in light of this court's precedent in Damien and others.

[00:37:20] Speaker 00:
The vigorous debate in college campuses doesn't move in a neat and tidy fashion where the decision is done and everyone has to fall in line.

[00:37:27] Speaker 00:
You expect ongoing, vigorous debate in the college community over the right policy.

[00:37:31] Speaker 00:
That's what you have here.

[00:37:33] Speaker 00:
As you mentioned, Your Honor's mentioned, Professor Jensen didn't keep asking questions.

[00:37:37] Speaker 00:
He sat down and then went and passed out a piece of paper that he typed up to his colleagues.

[00:37:42] Speaker 00:
That, under this court precedent, is not in subordination and it does violate his clearly established right.

[00:37:48] Speaker 00:
This court has also found that the right was clearly established in other cases.

[00:37:53] Speaker 00:
Just recently in Dodge v. Evergreen School District number 114, two years ago, this court found that it was a high school teacher in that case.

[00:38:00] Speaker 00:
But his right under the Pickering Test was clearly established.

[00:38:04] Speaker 01:
Was it the Hat case?

[00:38:05] Speaker 00:
It's the hat case, the Trump hat case.

[00:38:06] Speaker 00:
That's right.

[00:38:07] Speaker 00:
And there was actually evidence of much greater disruption in that case than here, but the court still found that the right was clearly established.

[00:38:13] Speaker 00:
It does happen that there are cases where it's clearly established.

[00:38:15] Speaker 00:
This is one of them where the facts so clearly favor Professor Jensen that any reasonable administrator should have known that his rights were violated by stopping him from speaking and punishing him for his speech.

[00:38:24] Speaker 01:
Thank you very much, counsel.

[00:38:25] Speaker 01:
Thank you.

[00:38:25] Speaker 01:
Thank you both for your, again, fine advocacy in this matter.

[00:38:30] Speaker 01:
This case is submitted.

[00:38:31] Speaker 01:
And one moment.