Last summer, Fernando Bustos convinced the U.S. Fifth Circuit Court of Appeals that his professor client has a viable federal free speech case against Texas Tech University officials after they allegedly retaliated against him for speaking out against the tenure system.
But the Lubbock lawyer wasn’t finished protecting James Wetherbe’s right to sue over two issues that be believes should go hand in hand on American college professors — the First Amendment and academic freedom.
So Bustos just won a similar ruling from Amarillo’s Seventh Court of Appeals, allowing Wetherbe to also pursue a state claim against Texas Tech University after it allegedly demoted him because of his anti-tenure views.
“What’s important about this case is free speech,” Busto said of his state court victory in Wetherbe v. Goebel. “And part of what Dr. Wetherbe is trying to prove is that the First Amendment should be all you need to protect your academic freedom.’’
Wetherbe, a Texas Tech business professor, gave up a tenured professorship at another school 20 years ago and has been a vocal critic of the system ever since. He refused tenure at Texas Tech after he was hired and alleges that he was denied a position as dean of the university’s business school because of his critical views of tenure.
“Dr. Wetherbe for a long time has felt that tenure was not been a good thing for education. It protects people who are lazy or unproductive and it fosters complacency instead of innovations,” said Bustos, who also serves as Wetherbe’s trial lawyer.
Bustos took a double-barreled approach to Wetherbe’s case by filing free speech claims under the Texas Constitution in a Lubbock state district court and a parallel federal free speech case in a Lubbock U.S. District Court, insuring his client would be heard by a jury in at least one of the courts.
But both of those cases were later dismissed after the University convinced the trial court judges that tenure is not a matter of public concern and that the Wetherbe’s speech on the subject was therefore not protected by the First Amendment — rulings that Wetherbe appealed.
In a June per curiam decision, the Fifth Circuit reversed the federal trial court ruling after concluding that the context and form of Wetherbe’s speech indicated that his speech was a matter of public concern, noting that he’d publishing an article in the Harvard Business Review advocating his view that it would better and less expensive for public universities if professors were contract employees.
And Bustos later convinced the Seventh Court that the state trial court was wrong to dismiss Wetherbe’s case on a plea to the jurisdiction by presenting the appellate with a complete list of articles the professor had written about subject including an opinion piece in BizEd that descried his own experiences with tenure that lead to his resignation from the University of Minnesota and a Financial Times editorial entitled “Tenure System Stifles Business Schools.”
Bustos also presented the court with a list of corresponding events that Wetherbe alleged constituted adverse retaliatory conduct by Texas Tech officials after the each of the articles were published including his being removed from leadership positions at the university and being demoted to a “professor of practice.”
“For our present purpose of determining the trial court’s jurisdiction over the claims Wetherbe has plead, we find the pleadings allege statements with content speaking to a matter of public concern,” wrote Justice James T. Campbell, reversing the dismissal of his state law claim and remanding back to the trial court for further proceedings.
Bustos believes the combination of both appellate rulings in his case will finally allow Wetherbe to present his case to a state court jury without further appellate delay.
“We’re looking to having our trial. The court of appeals went into even more detail than the Fifth Circuit. And it telegraphed to the trial court that if you try to come back on a motion to summary judgment it will be denied, too,’’ Bustos said. “We have already gotten through a lot of discovery. And the court has said on these set of facts, he ought to have a trial and have a jury hear the facts.’’
Abigail Doty, a spokeswoman for the Texas Attorney General’s Office, which represents the Texas Tech defendants in the case, declined to comment.