Lars Jensen is a mathematics instructor at Truckee Meadows Community College (TMCC), which is part of the Nevada System of Higher Education (NSHE). In June 2019, the NSHE Board of Regents adopted a new “co-requisite policy.” Under the policy, students needing remedial math instruction would no longer need to complete remedial courses before enrolling in college-level math. Instead, they could take both the remedial course and the college-level math course simultaneously. To support this model and maintain course completion rates, TMCC’s math department decided to lower the academic level of certain math classes.
On December 18, 2019, Jensen sent an email to the math faculty expressing concern about the department’s new academic standards. On January 21, 2020, Julie Ellsworth, Dean of Sciences at TMCC, facilitated a “Math Summit” to discuss the co-requisite policy. During a question and answer session after Ellsworth’s presentation, Jensen attempted to comment on the policy. Ellsworth cut him off and ended the session. When he attempted to speak again, she directed him to use the “parking lot,” a whiteboard designated for posting further comments.
Jensen then went to his office and prepared a one-page handout titled “On the Math Pathways — Looking Under the Hood.” The handout criticized the department’s decision to “lower the academic level of Math 120 so students will be able to complete the course at current rates.” Jensen argued that this would impact 31% of TMCC’s degree and certificate programs by reducing graduates’ math and technical skills. He said this would impact the community, noting that local employers subsidize TMCC through taxes and expect to be able to hire qualified graduates in return.
Jensen returned to the Summit and began distributing copies of his handout during breaks. When he began handing out the document in Ellsworth’s room, she picked up the copies he had distributed and motioned for participants to hand theirs to her. Jensen told Ellsworth it was break time and that he was not being disruptive. She told him not to distribute the handout. Jensen left and passed out his handout in other rooms. He then returned to Ellsworth’s room and attempted to distribute his handout again. Ellsworth directed him to stop. They went into the hallway to talk and Ellsworth accused Jensen of disobeying her, called him a bully, said his conduct was disruptive, and said he had “made an error by defying her.”
One week after the Math Summit, Ellsworth issued Jensen a notice of proposed reprimand for insubordination. The official letter of reprimand was placed in his personnel file on March 30, 2020. Soon after, Jensen sent an email to all TMCC faculty titled “Lowering Standards is Criminal — Literally.” The email argued that faculty were failing to uphold instructional standards required by the NSHE Handbook. About a week later, Ellsworth pressured Jensen to resign from another professor’s tenure committee. She also raised issue with his syllabus policies, calling them “punitive,” even though other math faculty used similar policies.
During Jensen’s 2019 to 2020 annual performance evaluation, the department chair recommended that Jensen be rated “excellent 2.” Ellsworth instead rated him “unsatisfactory,” the lowest possible score, citing insubordination at the Math Summit and the syllabus issue. During the following year’s annual evaluation, the department chair recommended an “excellent” rating for Jensen. Dean of Math and Physical Sciences Anne Flesher, who had attended the Math Summit and had criticized Jensen during the event, disregarded the recommendation and rated Jensen “unsatisfactory,” and identified minor performance issues. Jensen alleges the college ranked him on criteria that it had not applied to other faculty.
Under NSHE policy, receiving two consecutive “unsatisfactory” evaluations triggers a disciplinary hearing to determine whether the college should terminate the faculty member. TMCC President Karin Hilgersom appointed TMCC administrator Natalie Brown to investigate Jensen. TMCC held a termination hearing. Jensen alleged that the investigation and hearing process violated procedures under the NSHE Handbook.
Lars Jensen then filed a lawsuit against several TMCC and NSHE administrators. He brought First Amendment retaliation claims against the administrators in their official and personal capacities. He also brought procedural due process and equal protection claims against them in other personal capacities only.
The defendants asked the trial court to dismiss the case. They argued that the official-capacity claims were barred by sovereign immunity and the personal claims were barred by qualified immunity. The district court agreed and dismissed all claims without leave to amend. Jensen appealed.
The Ninth Circuit Court of appeals first addressed Jensen’s First Amendment retaliation claim. The Ninth Circuit applied the five-part test from Pickering v. Board of Education, 391 U.S. 563 (1968), which assesses: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the protected speech was a substantial or motivating factor in the adverse action; (4) whether the state had an adequate justification for treating the employee differently from a member of the public; and (5) whether the employer would have taken the same action even without the speech. Only the first four prongs were at issue on appeal.
The Ninth Circuit found that Jensen’s criticism of the math curriculum addressed a matter of public concern. The Ninth Circuit noted that Jensen’s criticism focused on academic standards, student learning, and the effect lower standards would have on the community. It relied on past precedent, Demers v. Austin, 746 F.3d 402 (9th Cir. 2014), to conclude that the First Amendment protected Jensen’s statements under even if he made them as part of his professional role.
The Ninth Circuit then found that Jensen had plausibly alleged that his speech was a motivating factor in the adverse actions he experienced. The Ninth Circuit further concluded that the defendants had not shown, at the pleading stage, any actual or predicted disruption that would justify the adverse employment actions.
The Ninth Circuit also held that the law protecting a professor’s right to criticize curricular changes was clearly established at the time of the events. It explained that the precedent from Pickering, Demers, and other cases had already made clear that public college faculty have a First Amendment right to speak on matters of curriculum, particularly when such speech relates to scholarship and teaching. The Ninth Circuit found that Jensen’s speech fell within this protected category and the retaliation he faced was significant and plausibly linked to that speech. Therefore, the Ninth Circuit concluded that a reasonable official in the defendants’ position would have known that their conduct violated clearly established constitutional rights.
The Ninth Circuit explained that the Eleventh Amendment sovereign immunity doctrine generally bars suits against state officials in their official capacities, unless a recognized exception applies. However, under Ex parte Young, 209 U.S. 123 (1908), plaintiffs may seek prospective relief, such as an injunction or declaratory judgment, against state officials to prevent ongoing violations of federal law. The Ninth Circuit held that Jensen’s requests for expungement of negative personnel records, an injunction against retaliatory practices, and a declaratory judgment were forms of prospective relief. Therefore, sovereign immunity did not block the relief Jensen requested.
The Ninth Circuit affirmed the dismissal of Jensen’s due process and equal protection claims, finding that he had not adequately identified a constitutionally protected liberty or property interest. However, the Ninth Circuit held that the district court had abused its discretion in denying Jensen leave to amend those claims. The Ninth Circuit emphasized that leave to amend should be granted freely, especially where, as here, the case was dismissed at the pleading stage.
The Ninth Circuit reversed the district court’s dismissal of Jensen’s First Amendment claims. The Ninth Circuit remanded the case to the district court for further proceedings, including the opportunity for Jensen to amend his due process and equal protection allegations.
Jensen v. Brown (9th Cir. 2025) 131 F.4th 677.