The panel reversed the district court’s judgment in favor of University of Washington officials (UW) and remanded for further proceedings in an action brought by UW teaching professor Stuart Reges, alleging First Amendment violations when UW investigated, reprimanded, and threatened to discipline him for contentious statements he made in a class syllabus mocking the University’s recommended indigenous land acknowledgment statement.

Recognizing that debate and disagreement are hallmarks of higher education, the panel held that UW violated the First Amendment in taking adverse action against Reges based on his view on a matter of public concern.

Specifically, the panel first held that the district court erred in granting summary judgment to UW on Reges’s First Amendment retaliation claim. Reges established a prima facie retaliation claim in that he experienced adverse employment actions, including a lengthy disciplinary investigation and reprimand, because of his protected speech. The speech was protected speech, not government speech, because Reges spoke in his own capacity as a professor, and not on behalf of his employer, and he unquestionably spoke on a matter of public concern. UW did not meet its burden under the Pickering balancing test of demonstrating that its legitimate interests outweighed Reges’s interest in speaking on a matter of public concern in the university setting. Accordingly, the panel reversed the district court’s summary judgment for defendants and directed that summary judgment be entered for Reges on his First Amendment retaliation claim.

Because Reges’s viewpoint discrimination claim was also subject to the same Pickering analysis, summary judgment for Reges was warranted on this claim as well. The record is clear that the University took action against Reges as a result of the views he expressed in his mock land acknowledgment statement. On remand, the district court should determine the appropriate relief on the retaliation and viewpoint discrimination claims.

The panel held that the district court erred by dismissing under Fed. R. Civ. P. 12(b)(6) Reges’s overbreadth and vagueness facial challenge to UW’s Nondiscrimination and Affirmative Action policy, which targets “any conduct that is deemed unacceptable or inappropriate, regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation.” Because the district court’s limiting construction of the policy conflicts with the policy’s plain text, it was improper. The panel remanded for the district court to determine, in the first instance, whether the policy was unconstitutional, taking into account how the policy has been enforced and applied in practice.

Concurring in part and dissenting in part, Judge S.R. Thomas agreed with the majority that the Pickering balancing test applied to Reges’s First Amendment retaliation and viewpoint discrimination claims. However, he disagreed with the majority’s conclusion that Reges’s speech interests outweighed the University of Washington’s interests. Universities have a responsibility to protect their students. This University, like other universities in the American West, has a particular obligation to its Native students. The disruption Reges’s speech caused to Native students’ learning outweighed his own First Amendment interests. Judge Thomas also disagreed with the majority’s conclusion that the University’s Nondiscrimination and Affirmative Action policy was not readily susceptible to the district court’s limiting construction.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/19/24-3518.pdf