University of California Davis leadership trashed math department chair Abigail Thompson for publicly opposing mandatory diversity, equity and inclusion statements in hiring and promotion, which it compared to opposing desegregation, though Thompson survived a national cancellation attempt, kept her job and won an "intellectual freedom" award.

Two and a half hours from Davis, Reno's Truckee Meadows Community College went beyond criticizing tenured math professor Lars Jensen for inveighing against his department's low academic standards and "deterioration of shared governance," nearly firing him.

The 9th U.S. Circuit Court of Appeals gave Jensen some measure of validation this week, three years after he filed a First Amendment retaliation lawsuit, by rebuking a lower court for not only dismissing the suit but refusing to let Jensen amend it to strengthen his claims.

In a warning shot across the bow of administrators within its nine-state jurisdiction, the 9th Circuit also withheld qualified immunity from TMCC officials for ignoring the "clearly established" right of faculty to "speak about a school’s curriculum without being reprimanded, given negative performance reviews, and put through an investigation and termination hearing."

The case will now return to U.S. District Court in Nevada, where a docket entry Tuesday shows President Obama nominee Judge Miranda Du will hear the case. Judge Larry Hicks, nominated by President George W. Bush, passed away after dismissing the suit with prejudice.

"This decision will protect professors from investigation or threats of termination for their speech, and promote accountability for administrators who violate the First Amendment," Foundation for Individual Rights and Expression attorney Daniel Ortner, who argued the case before the three-judge panel, said in a press release.

"To date, this case continues in litigation," TMCC Director of Marketing & Communications Kate Kirkpatrick told Just the News. "Because this is in litigation, TMCC will not make any further comments on this or any personnel matters as we continue focusing on student success and meeting our community's needs."

It's an opportune time for critics of low academic standards especially in science, technology, engineering and math, with newly confirmed Education Secretary Linda McMahon pledging to "refocus" public education on "meaningful learning in math, reading, science, and history – not divisive DEI programs and gender ideology" in her "final mission" speech.

Her Reagan administration predecessors William Bennett and Chester Finn called on McMahon to lead "another careful modernization" of the National Assessment of Educational Progress – invoked in President Trump's executive order on school choice – expand its testing of history and civics, and share results with states after eighth-grade, such as in 12th.

Apart from the second Trump administration, school districts have a new incentive to bulk up academic standards: lawsuits by students who graduated without learning the basics.

Aleysha Ortiz is suing Connecticut's Hartford Board of Education and the city for graduating her with honors despite not ensuring she learned to read and write over 12 years in the school system, CNN reported.

A family sued Tennessee's Clarksville-Montgomery County School System for graduating its "functionally illiterate" son with a 3.4 GPA despite his diagnoses for severe learning problems going back to fifth-grade when his military family arrived, Clarksville Now reported.

Parents are threatening to sue the Oregon Department of Education if it doesn't reconsider their complaints against suburban Portland's West Linn-Wilsonville School District for using noncompliant reading curricula based on the discredited "balanced literacy" method.

They cannot tell how long the district flouted state standards, which "also raises larger questions about why ODE isn’t holding districts accountable," Willamette Week reported. The department simply said the curriculum was now compliant but didn't specify "which curricula were beneath its standards" in dismissing parents' complaints last year.

Yet the Beaver State itself suspended reading, writing and math graduation requirements in response to learning loss caused by COVID-19 school closures and, when extended through the 2027-2028 academic year, in the name of helping "historically marginalized students."

Panicked by what Oregon Public Broadcasting calls "staggeringly low" student proficiency in math, English and reading despite massive education spending, Democratic Gov. Tina Kotek and Democratic leaders in the Democrat-dominated Legislature are pushing bills to strengthen academic metrics and hold schools accountable, OPB reported this week.

Jensen's plight at TMCC drew attention from FIRE and the Nevada Faculty Alliance, whose dual intervention FIRE credits with saving Jensen's job, and American Association of University Professors, which sent an expert witness to testify in Jensen's termination hearing. NFA and AAUP also filed a friend-of-the-court brief in his favor.

Individual defendants Natalie Brown, Julie Ellsworth, Anne Flesher, Karin Hilgersom, Marie Murgolo and Melody Rose tried to have that brief excluded as "duplicative" and because NFA and AAUP did not "explicitly articulate" their "special interest" in the case. (An ongoing Judicial Conference of the United States proceeding could dissuade such briefs.)

Jensen emailed faculty in protest when his department in 2019 lowered the "academic level of certain math classes" to maintain its course completion rates under a new Nevada System of Higher Education "co-requisite" policy that placed students taking remedial classes in simultaneous college-level math classes, Judge Marsha Berzon wrote for the unanimous panel, all nominated by Democrats.

At a "Math Summit" a month later about the policy "with the community," Dean of Sciences Julie Ellsworth reportedly twice cut off Jensen's questions, first abruptly ending audience comment and next telling him to post his comment on a whiteboard in the parking lot. 

He created a one-page handout with his concerns — including that TMCC's policy would lower the quality of graduates for local employers who subsidize the college – which Ellsworth started confiscating when Jensen handed them out during "break time" in her room. 

He distributed the handout in other rooms, came back to Ellsworth's and she warned Jensen he had "made an error by defying" the dean with his "disruptive" conduct and was being a "bully." This set off a two-year tit-for-tat between Ellsworth on one side and Jensen and his department chair on the other, the opinion said.

The dean put a letter of reprimand in Jensen's file, he told faculty TMCC was violating system standards, Jensen resigned from a tenure committee "after pressure from Ellsworth," and she faulted his "punitive" syllabus policies that other faculty had "used for years."

On consecutive performance evaluations, Ellsworth and her ally, Jensen's immediate dean, overrode the department chair's "excellent" rating of Jensen with an "unsatisfactory" rating, citing the Math Summit incident, syllabus and "minor issues with Jensen’s performance" based on criteria that Jensen alleged were applied only to him.

Those two reviews triggered a disciplinary hearing that could end in termination. 

"Jensen takes issue with numerous aspects of the investigation and hearing, which he contends did not conform to the procedures set out in the NSHE Handbook," Berzon wrote.

He kept his job only because TMCC President Karin Hilgersom – one of the defendants – accepted a recommendation in Jensen's favor from a "special review committee" instead of the termination recommendation by the "special hearing officer," FIRE said in 2021.

The panel rejected the late Judge Hicks' reasoning in dismissing the suit based on sovereign immunity and qualified immunity and "without explanation" not giving Jensen a chance to "adequately plead due process and equal protection claims" in an amended complaint.

"The decline of TMCC’s educational standards and the resulting impact on the community," as elaborated by Jensen in his Math Summit handout, "is a matter of public concern" and not a "close question" regardless of how widely Jensen distributed the handout, Judge Berzon wrote, citing a 2014 precedent in a similar university situation involving a "pamphlet."

His speech was clearly related to "scholarship or teaching" and thus is not covered by the First Amendment exception for speech pursuant to official duties, the opinion states.

"The temporal proximity" of adverse employment actions against Jensen, "as well as the fact that some were explicitly premised on Jensen’s handout distribution, plausibly demonstrates that Jensen’s speech motivated" them, Berzon wrote. 

Given that Ellsworth cited the Math Summit incident in Jensen's negative review, administrators must show they "would have made the same employment decisions" about Jensen's supposedly punitive syllabus "even absent the questioned speech" to escape liability.

Jensen's decision to ignore direct orders from Ellsworth about his handout "cannot automatically trump the employee’s interest in speaking" without evidence of disruption, and "several witnesses testified during Jensen’s disciplinary hearing that he behaved professionally while distributing the handouts," the opinion says. 

"Under such a regime, an employer seeking to prevent an employee from engaging in protected speech could do so simply by ordering the employee to cease."