9th Circuit expands 1st Amendment protection for professors' syllabus speech--and gets it wrong

What is the First Amendment protection for professors in making choices for their classes? The issue constantly arises and rarely are there easy answers. A decision of the United States Court of Appeals for the 9th Circuit, on Dec. 19, 2025, in Reges v. Cauce, addresses this, but I think came to the wrong answer in protecting an instructor's ability to put very offensive statements in his syllabus.

The case involved the University of Washington adopting an official school land acknowledgment, which states, "The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations." In 2019, The Paul G. Allen School of Computer Science and Engineering at the University of Washington adopted a recommendation that instructors include an "Indigenous Land Acknowledgment" in their course syllabus. No one was required to do this.

Stuart Reges, a teaching professor at the University of Washington, disagreed with the land acknowledgment and decided to parody it in the course syllabus for his computer programming class in 2022, a required course for some students with over 500 enrolled. His syllabus contained the following statement: "I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington."

Some students complained and the university began an investigation of Reges. Ultimately, no sanctions were imposed on him,. but he was cautioned that his conduct likely violated university policy, caused "significant disruption," and that repeating a similar statement in future syllabi could result in discipline.

Reges sued, but the federal district court granted summary judgment against him, concluding that the harms caused by his speech, including the disruption and offense to students and teaching assistants, outweighed his First Amendment rights.

The United States Court of Appeals for the 9th Circuit, in a 2-1 decision, reversed the district court and held that the University of Washington violated Reges' First Amendment rights even though no sanctions were imposed against him. Judge Daniel Bress wrote the opinion, which was joined by Judge Milan Smith, with Judge Sidney Thomas dissenting.

There is no disagreement between the majority and the dissent as to the legal rules that apply to this case. In 2006, in Garcetti v. Ceballos, the Supreme Court held that there is generally no First Amendment protection for the speech of government employees on the job in the scope of their duties. Richard Ceballos was a Los Angeles Deputy District Attorney who was removed from a supervisory position after he wrote a memo and gave it to the defense lawyer as he was constitutionally required to do, that a deputy sheriff in one of his cases was lying. The Supreme Court, 5-4, ruled against Ceballos' First Amendment claim, holding that there was no constitutional protection for his speech as a government employee engaged in his official duties.

But the court said it was not deciding whether the same rule "would apply in the same manner to a case involving speech related to scholarship or teaching." The court acknowledged "that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this court's customary employee-speech jurisprudence."

Although the Supreme Court has not addressed this issue, the 9th Circuit, in Demers v. Austin (2014), said that "teaching and academic writing are at the core of the official duties of teachers and professors" and "a special concern of the First Amendment." Demers thus held that where a professor is engaged in teaching and academic writing, Garcetti v. Ceballos would not apply, but instead the court would use the test from Pickering v. Board of Education (1968). Under this approach, a government employee's speech is protected by the First Amendment if it involves a matter of public concern and if the employee's speech outweighs the employer's interests.

The 9th Circuit ruled in favor of Reges using the Pickering test. The court said that "Reges unquestionably spoke on a matter of public concern." The court concluded, "We hold that UW has not met its burden under Pickering of demonstrating that its legitimate interests outweigh Reges's interest in speaking on a matter of public concern in the university setting."

Although I strongly support freedom of speech by faculty and students, in this instance I believe that the 9th Circuit erred in finding First Amendment protection. First, under Demers v. Austin, there is First Amendment protection for an instructor in teaching and in academic writing, but the statement in the syllabus had nothing to do with teaching the computer science course. The parodied land acknowledgment had nothing to do with the content of the class, and it was not part of any academic writing.  

Imagine that Reges used class time to express his disagreement with land acknowledgments--or with President Trump's foreign policy or Israel's actions in Gaza or the Seattle Mariners' manager's pitching choices in the decisive playoff game. Although Reges would have a right to say these things in a myriad of contexts, none could reasonably be said to relate to the teaching of his computer science class. Under Demers v. Austin, none would have the First Amendment protection accorded to teaching and academic writing. The fact that the statement is in a syllabus, like the fact that a statement might occur in the classroom, does not automatically make it a part of teaching or academic writing.

Second, even if it is assumed that Reges' speech involved teaching and the Pickering balancing test is to be applied, the 9th Circuit gave insufficient weight to the university's interests in preventing a hostile environment for Native American students. This was the point of Judge Thomas in his dissent: "Reges's land acknowledgment disrupted student learning, especially for Native students. Students reported that 'they will not attend class or will be dropping [Reges's] course rather than take the course.' ... Moreover, several students, in written complaints, showed how Reges went beyond offense to threaten their learning." Judge Thomas thus rightly concluded: "Because the University's interest in avoiding disruption to the education and enrollment of Native students outweighs Reges's interest in repeating his 'land acknowledgment' in this particular forum, the district court was correct to grant summary judgment to the University on the First Amendment retaliation and viewpoint discrimination claims."

Ultimately, the University of Washington handled this in an appropriate manner. Reges suffered no punishment at all. But he was told not to put in his syllabus in a computer science class a statement that would be deeply offensive to many Native American students and others that had absolutely nothing to do with the teaching in his course. Freedom of speech by instructors must be protected, but it is not absolute and the 9th Circuit here misapplied the law in finding constitutional protection for expression where none was warranted.