may please a court your honors my name is robert abel not represent the appellant a crime in this case mr ryan is a faculty member for now for about twenty five years and significant to our case he is a tenure faculty member for nearly about the same time he works in the journalism school he's been much on one hundred both within the university and otherwise in his profession and the genesis of that there's two claims  the court today both are in the nature of retaliation claims and they arise the genesis of the case is an audit report regarding professor ryan's use a self author classes that he taught roll over the course going back up believed about two thousand and eight and anyway an audit was performed and the determination was made that he had violated university policy  the demand was made to him by a supervisor who was then d dean of the college that he resigned and of course as a tenured faculty member he had a property interest  in accordance with the supreme court decision a board of regents versus roth from the early seventy's and continued employment in that case and he refused the demand that he resign and subsequent to that formal administrative proceedings tortillas terminations were not great a few weeks later in march of excuse me in may of two thousand and eighteen outside is another way to this is another way to describe those ensuing proceedings the process yes it is they were consistent with the due process requirements that attach in iraq from his property interests your honor so so he has his  his refusal to resign which i guess is maybe invoking his due process rights you might say was which was met with due process what is that was due process but the basis for his retaliation claim as to that and the mistake that was made by the district court your honor was a statement made by david blackwell provost of the university in a press release issued and published in the local newspaper the lexington herald leader that accused professor ron not just of violating university policy but of having stolen from students of being a thief is an accusation that inflicts a reputational injury  is is what they discussed and do burne well what was it i think you're referring to your honor the step in the administrative process was the matter got referred to an entity known as the senate committee on privilege intent privilege and tenure that determined that there had d not been a violation of university policy and recommended the proceeding terminations proceedings be  ended and they still remain pending as we speak some twenty almost twenty six months later but so the faculty committee on her stand recommended that he not be terminated and i was wondering what did he actually get terminated and how did that happen but you're saying no he hasn't actually been terminated been terminate the basis of are at the basis of retaliation your honor is the accusation that he had stolen from students an accusation inflicted a reputational injury and the court's preceden and in retaliation for that a reputational injury was inflicted that reputational injury being an accusation that he had stolen from students and was that was the basis that was the paces for the due process that was the basis for the disciplinary action against him i mean they were going to have proceedings regarding whether he should be terminated those his tenure rights and now is all about whether he stole from the university or from students so this  every time a university or allege oppressor's done something wrong that that itself is retaliation because that's that's always a good just of that proceeding no i would not say always although it could be in some instances where there is proof that there was no basis the accusation but it's your honor it's one thing basis for the accusation so you have the hearing right so so whatever the professor were accused of something terrible like sexual assault and gets placed on some kind of administrative leave and then you know there is an up cry because he's a very popular professor at the university president says well professor so and so it's been a huge fight student sexual assault and then there's a university proceeding to figure that out is the professor is the university president's statements of fact that there's been an accusation retaliate is that well if you if you assume that it's a fact that in fact occurred that would be a different thing i would like for you all t like the court to draw a distinction between a terminations that's based on a violation of university policy as as opposed to a violation of university policy and as in this case by the way this individual stole from students thank you during the duke myself but i don't start when as soon as during the due process hearing the dean or the investigator someone is going to testify that the professor stole from the students so that claim is going to be made in the here and i say he's accused others say here's the evidence that he actually stole and you're saying there's a stench in between i guess saying it to the media versus today saying it during the proceeding which the proceeding might be it was their evidence presented about whether he did or did steal the tenure privilege and tenure committee did an investigation i think they interviewed some people i did not  did not have a type of closet judicial proceeding or something like that and they issued a report that's attached as one of the exhibits to the complaint but it was not it was not in the nature of the hearing as i think you are contemplating  retire our claim is you would as you observe judge realer that an assertion of a constitutional right to due process was made an exercise of that right and in retaliation a false accusation that he had stolen from students was made that is actionable retaliation because that type of accusation inflicts a reputational injury in those that's the essence of what i'm characterizing as a due process retaliation client i'm not i'm not claiming that the process was deficient i'm claiming that an injury or reputational actionable injury was inflicted by the statement they get stolen from students which is not true credibility or your honesty or certainly great otherwise or is really very very well the due process hearing him in this case can resolve whether or not university policy was newspaper article in relatively short order perhaps even on the st page that's the injury that we're seeking to cure in this lawsuit lorenzo that speaks to alleged misconduct by faculty members that impacts students which is what was going on but now raises matters of public concern  university i guess recognized it because they issued a press release that is part of the publication in the newspaper the subsequent to that as pleaded in the complaint and there was quite a reaction from professor ryan's colleagues on the faculty protesting this action and whatnot and subsequent to that at a public fora faculty form with the provost and university president there professor ryan protested this abus power and mismanagement that have been directed at him to at a minimum taint and stand his professional reputation for the rest of his life i guess i guess what i was getting at is it seems like there's  again an internal employment dispute and the reason becomes a matter of public concern is mostly because the subject of the dispute starts speaking publicly about it and maybe i'm wrong about that but it seems like an odd way to transfer form america's private  by the university they are the ones that issued the press release that made the accusation the professor ryan had stolen from students the list was thrust in the public eye by the employer not by professor r could correct one characterization that's been made i think of the facts and of the record there's reference made a press release that is not the case exhibit k two our motion to dismiss is the e mail from the progress has matter to see has the right to speak on that as you referred to earlier that is what was going on that is alternately what was going to happen whether it would be filing and certainly the audit once it was completed th occurred here is a public record anyone could have obtained a copy of that estimate in open records request those factual details were in there and of course what it showed was the professor ryan had the university pay for the printing of a book that he required his students to hand instead of giving them the book for free since the university already paid for it which is by the way what his department chair thought was going to happen he sold it to local bookstores and then required his students that's who get it the au report is attached as exhibit a in our motion in this mess and should be there but if you like that i appreciate that clarification because i didn't quite understand that sax on the record we all went to law school we're pretty familiar with  instructing reading assignments or book purchases that sometimes or the author right so next year is that it was paid for by the university as opposed to a private publishing company so there were this happened multiple times through the years but the most so the university has an in house print shop that the university can do and that gets charged back to the department and the versity has a process and usually two aspects of that process i think that are important st the university can pay for its own printing and of course when it does it does it with the expectation that you wouldn't double dip and then charge the students for their nd day university also has a policy to address the experience we've all had of when a professor assigns their own textbook  that is not prohibited per se it does however require those professors to make a donation back of any profits so the they aren't engaging in in any self dealing what happened here in the most recent example or some pr years but in the most recent example he took this it's chemical workbook it's not like a hardbound textbook it's a workbook that you can have pages that your rep fell and so it's not really usable or students can sell them back so that's what the institution but when you're the one who's accused of the nefarious dealings that resulted in the missing money you know you're an employee being caught and disciplined because of the missing money that's not protected speech concern this case is different this case is the quintessential employee beef that this court st noted in in murray back in the mid eighty's and it's been repeated time and time again and for that you made a point earlier that the comment was the gist of what the complaint was going to be about professor ryan in order to revoke his tenure and terminate his employment and i think that's critical to know because that addresses the block case law case has some horrific facts you have a rape victim who's gone to law enforcement and over the course of eighteen months there's little to no ringback development in that investigation into that crime and she speaks to the local news of the cleveland plain dealer and she's complaining about the sheriff and the sheriff reacts because on a press conference in revealing some of the most intimate details of that rape in a very embarrassing fashion but what's different about block that we don't have in this case and as a very friendly union the plaintiffs and block the rape victim and bar specifically pled that the sheriff's riggs so called retaliatory speech had no bearing on her original generator that goes to the heart of your question that the gist of the provost speech was about the very heart and nature of what the disciplinary proceedings were so i think blot frankly supports our position in this case  is in our brief and footnote twenty two by the way the proceedings work is step one which is what it occurred actually before the provost made the comment step one requires university minister has to sit down with the tenured professor and see if they can work it out then this situation there wasn't a lot to negotiate so to speak but step one he has had a conference have a meeting in gauge an interactive process which the university has a duty to do under ceremony that they did that didn't work summer of eighteen in august six is when they made their report and their report did not exonerate professor ryan they specifically said he needs to repay the money they just found that the amount of money wasn't enough to justify tenure and  that's their opinion that opinion then goes to the president as an advisory opinion the president then makes a decision whether to move forward he then initiates more charges it would then go back to the university faculty for a different  t back the president had more questions asked mr reed who's the auditors do have a different conversation with professor ryan factors and even from the president to professor or i am lang at some of those topics that discussion takes as all this did it take a months and again that's part of the problem with this complaint you know conduct teaches us that we have to look to determine whether something is protected speech we have to look at its content its form and its context and this complaint gives almost no guidance as to either of those three what was the complaint alleges that professor ryan said we ended he say where did he say it best there's two paragraphs in the complete progress forty four and forty five which are at page nine of the record which which convert this to a matter of public concern these bare bones pleadings i would say does one of two things either not enough to establish a plausible point or it's just enough to plead himself out of protected speech when he says i spoke about the proceedings to fire me and i didn't think there was grounds for there is a quintessential employee brief employee be it but in the midst of all that though i think the worst position i would argue t better argument perhaps is the way to say it is none of this is clearly established when you look at the plethora of cases that we have armed what constitutes protected speech there is no thoroughly stablished law from even the supreme court of the circuit says the provos responding about the very gist of the charges against it in your professor is prohibited nor would that be considered a tap it were behind the proposed black i would have had no idea from the rooms of the supreme court or the  circuit to refer back to early question judge reader that he's supposed to say no comment under no circumstances going to make any comment he must simply look at her pleading was no guidance from this court that has said that nd the other allegation of retaliation is that the asst universities auditor at the direction of the president kept asking questions so think about this process how it's designed the university faculty committee issues a link to her pore and says we don't think it meets it in these or other issues in the president takes that report and perhaps it is a good point let's look a little further that can't possibly be retaliatory when you're following the process the professor  is is entitled to under the university policy and rd there's the allegation that for the spring semester one hundred and ninety two million one thousand he was removed from the teachings and well that's not retaliatory but this court on at least three different occasions in the th circuit quite clearly has said that there is no constitutional right to teach or constitutional right to teach certain classes or at certain times in the absence of that guidance  one we had a factual argument regarding whether or not the university paid for the cost of the publications in question were rule twelve motion i mean this comes up to the  not at that stage yet and that's not in the record second with regard to public concern i've really called the court's attention to been ever since lorenzo it's kind of an unusual case but but this court holding there was to the to the if the professor was accused of sexual harassment posted the complaint on some bulletin boards around the school issued as a kind of a treat to the local media and the court held that he was speaking to a matter of public concern because because it involves the university's policies there sexual harassment here use of textbooks and it intersected with the welfare of students you know they're being subjected to sexual harassment here with regard to the use of textbooks and the court also noted that finding a public concern was strengthened by  inflicted which it has been here and of course has to the st amendment we're talking form content and context and a rule twelve motion it's and misuse of public power doesn't strip you of your st amendment right to protest but with that said thank you all for convening this is very unusual to do this i guess some we're all going to have to get used to at least for a while