Heim v. Daniel et al

Filing 78

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that the Clerk of the Court is directed to terminate Havidan Rodriguez, University at Albany, and The State University of New York as defendants; and it is further ORDERED that Defendant's # [ 68] First MOTION for Summary Judgment filed by Betty Daniel, Adrian Masters is GRANTED; and it is further ORDERED that Plaintiff's # 4 Amended Complaint filed by John J. Heim is DISMISSED. The Clerk of the Court is directed to terminate any pending motions and enter a judgment accordingly. Signed by Judge David N. Hurd on 5/10/2022. (pjh, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------JOHN J. HEIM,
Plaintiff,
-v-

1:18-CV-836

BETTY DANIEL and
ADRIAN MASTERS,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

COOPER, ERVING & SAVAGE, LLP
Attorneys for Plaintiff
39 North Pearl Street, 4th Floor
Albany, NY 12207

PHILLIP G. STECK, ESQ.

NOLAN HELLER KAUFFMAN, LLP
Attorneys for Plaintiff
80 State Street, 11th Floor
Albany, NY 12207

BRIAN DEINHART, ESQ.

HON. LETITIA JAMES
New York State Attorney General
Attorneys for Defendants
The Capitol
Albany, NY 12224

MELISSA A. LATINO, ESQ.
SHANNAN COLLIER
KRASNOKUTSKI, ESQ.
Ass’t Attorneys General

DAVID N. HURD
United States District Judge

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TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................... 3
II. BACKGROUND ........................................................................................... 4
A. Professional Background ..........................................................................5
B. Teaching Experience ..................................................................................7
C. SUNY Albany .............................................................................................8
D. Yue Li..........................................................................................................9
E. Lewis Segal .............................................................................................. 10
F. Ben Griffy................................................................................................. 11
III. LEGAL STANDARD ............................................................................... 15
IV. DISCUSSION ............................................................................................ 16
A. Academic Freedom .................................................................................. 18
B. Retaliation ............................................................................................... 23
1. Protected Speech or Conduct ........................................................ 24
i. Garcetti .................................................................................. 27
ii. Pickering and Connick......................................................... 31
2. Adverse Action ............................................................................... 35
3. Causation ....................................................................................... 37
C. Limited Public Forum ............................................................................. 42
V. CONCLUSION ........................................................................................... 43

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MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
On July 16, 2018, plaintiff John J. Heim (“Heim” or “plaintiff”), an adjunct
professor at the State University of New York (“SUNY”) at Albany, filed this
42 U.S.C. § 1983 action against defendants SUNY Albany, the SUNY system,
SUNY Albany President Havidan Rodriguez (“President Rodriguez”), SUNY
Albany professor Betty Daniel (“Daniel”), and SUNY Albany professor Adrian
Masters (“Masters”). Dkt. No. 3.
Heim’s three-count amended complaint alleged that defendants violated
his civil rights under the First and Fourteenth Amendments to the U.S.
Constitution and the New York State Human Rights Law when they refused
to interview or hire him for a tenure-track faculty position in the economics
department at SUNY Albany. Dkt. No. 4.
On September 28, 2018, defendants moved under Federal Rule of Civil
Procedure 12(b) to dismiss Heim’s amended complaint. Dkt. No. 9. After oral
argument, defendants’ motion was granted in part and denied in part in a
decision rendered from the bench. Dkt. No. 17. Plaintiff’s § 1983 claim
against President Rodriguez (Second Cause of Action) was dismissed. Id. So

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too was plaintiff’s Human Rights Law claim for age discrimination against
SUNY Albany and the SUNY system (Third Cause of Action). 1 Id.
Thereafter, the parties completed discovery into Heim’s First Cause of
Action; i.e., his § 1983 claim that defendants Daniel and Masters, the two
SUNY Albany professors responsible for making hiring decisions in the
economics department, violated his First Amendment rights. 2 Dkt. No. 18.
On January 31, 2022, Daniel and Masters (collectively “defendants”)
moved under Federal Rule of Civil Procedure 56 for summary judgment on
this remaining claim. Dkt. No. 73. The motion has been fully briefed and
will be considered on the basis of the submissions without oral argument.
II. BACKGROUND
Defendants have filed a Statement of Material Facts in accordance with
the Local Rules, but a review of Heim’s response to this document reveals
that he partially or completely denies (and frequently disputes the

1 In his opposition to the pre-answer motion to dismiss, Heim also conceded that his claims

against SUNY Albany and SUNY were barred by state sovereign immunity. Dkt. No. 12 at 3. And
as mentioned supra, plaintiff’s claim for prospective injunctive relief against President Rodriguez
has been dismissed. Although it is not clear from the docket sheet, there are no claims remaining
against these three parties. See Defs.’ Answer, Dkt. No. 18 (joining issue on behalf of defendants
Daniel and Masters only). Accordingly, the Clerk of the Court will be directed to terminate these
parties as defendants.
2 Heim’s amended complaint also set forth a “reserved” space for a fourth cause of action in

anticipation of a further amendment to his pleading that would include a claim based on the Age
Discrimination in Employment Act (“ADEA”). Am. Compl. ¶¶ 58–60. However, a review of the
docket sheet indicates that plaintiff did not follow through with any further amendment to his
pleading. Accordingly, the Court declines to consider any claim under the ADEA.
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characterization of) most of the factual assertions set forth in defendants’
filing. See Pl.’s Response to Defs.’ Facts, Dkt. No. 73-1. Because of the
Court’s obligation to resolve fact disputes in the non-movant’s favor on
summary judgment, most of the background set out in this section is taken
from plaintiff’s affidavit in opposition and from his own deposition testimony.
A. Professional Background
Heim holds a Ph.D. in political economy from SUNY Albany and a
master’s degree in Public Administration from Harvard University. Heim
Aff., Dkt. No. 73-2 ¶ 5. Plaintiff has also received certificates in executive
leadership, construction management, double-entry governmental
accounting, and audit training. Id. ¶ 6.
Heim has worked as an econometrician in various New York State
agencies and for the City of Buffalo. Heim Aff. ¶ 7. He considers himself a
macroeconomist, which involves the study of whole economies; i.e., it is “the
part of economics concerned with large-scale or general economic factors and
how they interact.” Id. ¶ 17.
Heim also considers himself a Keynesian 3, which in his view places him on
the traditionalist side of a long-running “intellectual battle” with a separate

3 So named for John Maynard Keynes, a British economist whose work during the Great

Depression departed from the classical view that in the long run the economy would achieve general
equilibrium without the need for government intervention. Heim Aff. ¶ 18. Keynes, in contrast to
his contemporaries, advocated for countercyclical fiscal policies that would prop up aggregate
demand in a depressed economy. See id.
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group of economists who prefer to study Dynamic Stochastic General
Equilibrium (“DSGE”), “a method that uses sophisticated mathematics such
as logarithms to derive the behavior of the macro economy from the micro
economy.” Heim Aff. ¶¶ 18, 22, 24.
As Heim explains, DSGE is popular among the so-called “freshwater
economists,” who study and teach at universities located in the interior of the
United States, while traditional Keynesian theory has historically enjoyed
“greater allegiance” among “saltwater economists,” who study and teach at
universities located on the coasts. Heim Aff. ¶ 24. Adherents to DSGE (also
known as the “micro foundations of macro”) criticize Keynesianism as an
outdated theory because, inter alia, it failed to provide a suitable policy
response to the severe stagflation of the 1970s. 4 See id. ¶¶ 18–24.
However, Keynesians—including Heim—dispute the explanatory power of
DSGE’s approach. See Heim Aff. ¶ 23. They believe that DSGE’s emphasis
on “equilibrium is an effort to revive neo-classical free market economic
theory.” Id. They also believe that this kind of thinking “paralyzed the
ability of economists to respond to events like the Great Depression or the
Financial Crisis of 2008.” Id. Plaintiff asserts that Keynesianism “remains a

4 One prominent critic is the American economist Robert E. Lucas, Jr., for whom the “Lucas

critique” is named. In the wake of this and other criticisms, a group of economists known as “New
Keynesians” have sprung up. They “try to bridge the gap” between traditional Keynesian analysis
and DSGE. Heim Aff. ¶ 24 n.6.
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respected point of view worldwide” and firmly believes that “[y]oung
economists need access to both points of view to prepare for the economic
future.” Id. ¶ 26.
Heim’s particular area of research is “Hicksian IS-LM” type analysis,
which is a kind of Keynesianism that involves “a highly detailed statistically
based look at how the economy operates.” Heim Aff. ¶ 27. From this
statistical information, plaintiff is able to “develop equations to create a
model for how the whole economy works.” Id. Unlike plaintiff, defendants
Daniel and Masters adhere to the DSGE or “micro foundations of macro”
approach to economics. Id. ¶ 31. In plaintiff’s view, Daniel and Masters “are
hostile to traditional Keynesian analysis.” Id.
B. Teaching Experience
In 1997, Rensselaer Polytechnic Institute (“RPI”) hired Heim as a clinical
professor in its economics department. Heim Aff. ¶ 8. Plaintiff taught
economics at RPI from 1998 to 2012. Id. In particular, plaintiff “taught
Masters and Ph.D.-level Advanced Microeconomics I & II and Master’s level
Econometrics.” Id. Plaintiff also “supervised 100 senior theses, four masters’
theses, and three doctoral dissertations.” Id. ¶ 9.
RPI promoted Heim on several occasions, and over the years he eventually
received the title of full clinical professor. Heim Aff. ¶ 8. According to
plaintiff, the duties of a full clinical professor at RPI were limited to teaching
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and administration. Id. Because a clinical teaching position did not offer
tenure, “RPI made no decision on granting or denying [him] tenure.” Id.
Notably, in 1997 Heim also taught a class in macroeconomics to
undergraduates at SUNY Albany. Heim Aff. ¶ 11; Ex. A to Latino Decl.
(“Heim Dep.”), Dkt. No. 68-3 at 35:2–3, 36:21–34:2. According to plaintiff, he
was recruited to do so by Kajal Lahiri, “a noted econometrician and the
highest-ranking professor in the economics department,” and by Terry Kinal,
another econometrician who was at that time the chair of SUNY Albany’s
economics department. Heim Aff. ¶ 10.
C. SUNY Albany
Later, in 2012, SUNY Albany hired Heim as an adjunct professor in its
economics department. Defs.’ Facts, Dkt. No. 68-1 ¶ 1; Heim Aff. ¶ 11. As
plaintiff explains, he “came to SUNY Albany to reduce [his] teaching course
load and concentrate more on [his] research,” which “focused on large-scale
macroeconomic modeling and whether particular economic ideas or models
conformed to reality based on statistical testing.” Heim Aff. ¶ 10.
During his first semester at SUNY Albany, Heim taught a class on
large-scale macroeconomic modeling to both undergraduate and graduate
students. Heim Aff. ¶ 11; Heim Dep. 38:19–39:5. However, when defendant
Daniel became the chair of the economics department she “denied [plaintiff]
the opportunity to continue teaching that class.” Heim Aff. ¶ 11.
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“After losing that opportunity, up until June 2021, [Heim] was teaching a
full course load (two courses) at SUNY equal to that of tenure-track faculty
including, from time to time, Principles of Macroeconomics and Economic
Statistics.” Heim Aff. ¶ 11; see also Heim Dep. at 38:8–70:9 (describing
courses taught each semester during this time period).
In 2017 and 2021, Heim also wrote a total of four books, which were
published by “Macmillan Palgrave Co., a renowned academic publisher” and
listed in the Journal of Economic Literature, which highlights significant
publications in the field of economics.” Heim Aff. ¶ 12. These books received
favorable reviews. See id. ¶ 13. One of these books, entitled Crowding Out
Fiscal Stimulus, was publicized by SUNY Albany. Id. ¶ 14. Plaintiff was
also honored by the university for his publications. Id. According to plaintiff,
“no member of the macroeconomics faculty has published any books since the
department’s creation in the 1960s.” Id.
D. Yue Li
On December 17, 2013, Heim learned about a macroeconomics job opening
in the economics department at SUNY Albany. 5 Heim Aff. ¶ 43. When

5 Heim believes that “[t]he people who call themselves macroeconomists at SUNY Albany” do

not actually study or research true macroeconomics. Heim Aff. ¶ 28. In plaintiff’s view, these
professors “look at much smaller parts of the economy, like the labor market, or particular practices
in the health care market, and analyze certain behaviors in it.” Id. While “[t]his type of work is
particularly suitable for publication in various journals in rather short articles,” plaintiff insists that
this kind of work “did not used to be called macroeconomics at all.” Id.
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plaintiff “asked then economics department chair [Daniel] about it, she
discouraged him from applying.” Id. In an e-mail to plaintiff, Daniel stated:
Thanks for your interest in the macro position. You
are correct that we are heavily invested in micro
foundations of macro as this is the research trend in
the top macro and general field journals. Since we
expect our faculty to publish in these journals, we do
intend to continue with this direction.
I did consult with Adrian [Masters] and John and we
agree with you that your research differs from the
course of research we want to pursue. I expect that we
will hire a junior person recently trained in these
techniques.
I do want to encourage you to continue your research.
It just does not match with the direction we are taking
macro research in the Department.
Ex. F to Heim Aff., Dkt. No. 73-8. The economics department hired Yue Li to
fill this position. Heim Aff. ¶ 43.
E. Lewis Segal
In 2016, Heim learned that “a positon [sic] at the University of Albany in
financial economics had been created and filled with another younger adjunct
faculty member.” Heim Aff. ¶ 44. Despite his “background in financial
economics,” no one mentioned to plaintiff “that a position had been created
until after it was filled.” Id. According to plaintiff, “the department sought
and obtained a waiver of the normal competitive hiring process from the
University administration.” Id.
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Heim did not apply for this job. Heim Dep. at 105:2–8. Instead, the
department hired Lewis Segal to fill this position. Id. Plaintiff concedes that
Segal was also qualified, but believes himself to have been equally or “maybe
a little bit more” qualified for it. Heim Dep. at 101:23–102:7.
F. Ben Griffy
On August 24, 2017, Heim learned of yet another job opening in the
economics department during a luncheon with Daniel and Masters. Heim
Aff. ¶ 45. Neither Masters, who had become chair of the economics
department in 2016, nor Daniel, who headed up the search committee for this
particular job opening, had advised plaintiff of the posting “even though both
work within about 100 feet of [his] office” and pass him regularly in the
university’s hallways. Id.; see also Heim Dep. at 72:17–22. According to
plaintiff, defendant Daniel “told [him] flat out that he was too old to be
considered for a tenure-track position.” Id.
On October 27, 2017, Heim submitted an application for the job posting
anyway. Heim Aff. ¶ 46. He received a confirmation e-mail from SUNY
Albany’s Office of Human Resources. Ex. G to Heim Aff., Dkt. No. 73-9. He
also informed Masters, the chair of the economics department, that he had
applied for the job. Heim Aff. ¶ 46. Although plaintiff was “much more
highly qualified,” he was not interviewed. Id.

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On December 14, 2017, Heim asked Masters why he had not been selected
for an interview. See Heim Aff. ¶ 48. According to plaintiff, Masters told him
that he was not considered because his recommendations had not been
received by the cut-off date. 6 Id. ¶¶ 47–48. As plaintiff explains, a
third-party entity responsible for compiling application materials—referred
to by him as a clearinghouse—received “two of the recommendations” but
“did not forward them to the University” for consideration. Id. ¶ 49.
Heim contends this occurred because of a technical glitch with the
clearinghouse’s website, because when he conducted his own search for the
job opening it “came up empty.” Heim Aff. ¶ 50. According to plaintiff, other
faculty members he routinely saw around the office knew he had applied for
the position and should have advised him about the problem with his
“missing” recommendations. Id. ¶ 49. Plaintiff submitted to Masters a
statement from the clearinghouse that showed, in plaintiff’s view, there was
an error with the system. Id. ¶ 50; Ex. I to Heim Aff., Dkt. No. 78-11.
On December 19, 2017, Masters responded by e-mail to Heim’s complaint
about the clearinghouse. Heim Aff. ¶ 51. Masters denied “that there was any
problem with the clearinghouse.” Id. Masters further stated that he and the

6 The cut-off date for the application was actually March 15, 2018. Heim Aff. ¶ 47.

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committee had considered whether to interview plaintiff irrespective of the
fact that they had not received his recommendation letters:
We are bound by university rules to consider all
applicants the same way. That you have direct access
to me does not mean that you should get preferential
treatment. Here is my final word on this matter:
The department respects you and respects the fact
that you continue to conduct your research as an
adjunct professor. The technical reason we put down
for not interviewing you is that we did not have letters
and I told you that at the party. At the party I also
gave you the “Cliff Notes” on the general feeling of the
committee towards your application. Until now I have
not given you chapter and verse because I am still
happy to have you as a member of the department but
you have now forced my hand on this. The fact is the
committee did discuss your application and, as with
many applicants with a track record, concluded that
regardless of what any letters said we would not
interview you for the position. Here is why:
We are looking for someone who:
1. Can teach and train students to conduct
research in the modern (i.e. post Lucas
Critique) macroeconomics that by your own
admission everyone else but you and Ray Fair
do. Nothing in your credentials supports that
possibility.
2. Has a reasonable expectation of making tenure
within the department within the 6 year tenure
track window. Here again the fact that you have
a record speaks for itself. Nothing a letter writer
can do can change that. The journals in which
you have published do not achieve the standard
that we expect for tenure. (Typically 4 articles in
journals at the level of top field e.g. Journal of
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Monetary Economics or the International
Economic Review.
3. Has sufficient synergies with our research
agendas that we can learn from them and them
from us with the possibility of constructive
collaboration. Your work is not consistent with
that expectation. Indeed, we rejected a number
of applications that met the first 2 criteria but
they do New Keynesian macro that we do not
appreciate.
I hope you are not too discouraged by this and continue
to teach and do your work within the department as
an adjunct professor but the fact is that you will not be
hired for this job. Meanwhile there were perhaps close
to 100 jobs for macroeconomics posted in JOE. I would
encourage you to apply to as many of those as possible.
One of them might be a god [sic] fit for you but ours is
not.
I will not respond to anymore [sic] correspondence on
this matter. As far as the committee is concerned the
matter is closed. To respond any more to you would be
to give you preferential treatment over other
applicants.
Ex. J. to Heim Aff., Dkt. No. 78-12 (some formatting supplied).
On December 20, 2017, Heim responded to Masters and requested that he
reconsider the department’s refusal to interview him. Heim Aff. ¶ 54. As
part of this request, plaintiff noted that DSGE economics “had come under
heavy criticism within the profession” and stated his view that SUNY Albany
“would benefit from having a recognized alternative, or at least by having a

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healthy debate on these issues.” Id. Although plaintiff included statements
from prominent DSGE critics, Masters dismissed them as “old guys!” Id.
Ultimately, the department hired Ben Griffy to fill this position. Heim
Aff. ¶ 46. According to plaintiff, Griffy is less qualified than him. Heim Dep.
at 107:19–108:6, 119:20–23. Plaintiff continues to be employed as an adjunct
faculty member in SUNY Albany’s economics department. 7 See, e.g., Heim
Dep. at 68:19–20.
III. LEGAL STANDARD
The entry of summary judgment is warranted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). An issue of fact is
material for purposes of this inquiry if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). And a dispute of material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
In assessing whether there are any genuine disputes of material fact,
“a court must resolve any ambiguities and draw all inferences from the facts
in a light most favorable to the nonmoving party.” Ward v. Stewart, 286 F.
Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Summary judgment is

7 See also Other Faculty and Staff, University at Albany, State University of New York,

https://www.albany.edu/economics/faculty/other-faculty-and-staff (last visited April 21, 2022).
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inappropriate where a “review of the record reveals sufficient evidence for a
rational trier of fact to find in the [non-movant’s] favor.” Treglia v. Town of
Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).
IV. DISCUSSION
In their briefing, the parties spend time sparring over whether Keynesian
economics is an “antiquated” field of study or whether Keynesian economists
“use[ ] dated techniques.” Defs.’ Facts ¶ 8; see also, e.g., id. ¶ 12 (“Keynesian
economics has not been published in serious journals since the 70’s.”); ¶ 20
(characterizing academic journals in which plaintiff has published as
“lower-tier”); Defs.’ Reply, Dkt. No. 77 at 11 (analogizing a Keynesian
economist to a physicist “who teaches and advocates for the ‘flat Earth’
theory); Masters Decl., Dkt. No. 77-1 ¶ 19 (comparing DSGE methods to
“engineer[ing] an Instant Pot (for fast and efficient cooking)” and contrasting
a Keynesian’s methodological approach to “rubbing two sticks together for
fire as the best source of heating food”).
But much of this is irrelevant. Heim’s claim is based on a relatively
straightforward premise. As plaintiff explained at his deposition:
Q. So Professor Heim, why did you decide to sue Betty
Daniel [and defendant Masters]?
....
A. Okay. Well, I was at Albany. They were recruiting
macroeconomics beginning level, macro-economics
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professor. And I knew I was more than qualified
for at least for consideration, but, in fact, more than
qualified by a long stretch, probably than any other
applicant would be. And yet they refused to
entertain my application.
So I couldn’t figure it out. It could not have been on
the substance by lacking substance in all the areas
that a macro professor is expected to know. So I
figured it had to be something other than the
knowledge of the job.
And the only thing I could think of is, they are a
different kind of economist than I am. They are
what - - what is commonly called D.S.G.E.
economist, she and Adrian [Masters], which is - which is like a con - - very conservative school of
economics.
And my type of economics is Keynesian, which is
considered a more liberal type of economics . . . .
And they had made clear to me that they did not
want a person with that kind of background in the
department.
....
Q. And do you believe that you were denied the three
positions that we’ve discussed . . . because of your
endorsement of Keynesian economics?
A. Yes.
Heim Dep. 76:5–77:9, 122:16–21.
In other words, Heim alleges that defendants refused to consider him for a
tenure-track faculty job for which he was otherwise qualified because they
are biased against his economic viewpoint and the academic speech and
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writing activities related to it. Understanding this claim does not require the
reader to form any concrete opinions about the internecine conflict over
arcane theory that is apparently being waged in university economics
departments across the country.
Instead, the difficult question posed by this § 1983 claim is which First
Amendment framework should govern the legal analysis. That question, in
turn, is layered with extra complexity because Heim has taken such a broad
approach to his protected “speech” that it threatens to frustrate meaningful
legal analysis. After all, plaintiff has been teaching, writing, and advocating
for Keynesian economic concepts—in SUNY classrooms and outside of
them—since well before 2012, when he first joined SUNY Albany’s faculty.
A. Academic Freedom
As an initial matter, to the extent Heim’s § 1983 claim is based on the
general First Amendment right of “academic freedom,” that claim must be
dismissed.
“The general right to academic freedom is a ‘First Amendment protection
that has long been recognized in the academic arena.’” Radolf v. Univ. of
Conn., 364 F. Supp. 2d 204, 215 (D. Conn. 2005) (quoting Hayut v. State
Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003)). It “rests on a recognition of
‘the vital role in a democracy that is played by those who guide and train our

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youth.’” Burt v. Gates, 502 F.3d 183, 190 (2d Cir. 2007) (quoting Sweezy v.
New Hampshire, 354 U.S. 234, 250 (1957)).
“[F]or decades it has been clearly established that the First Amendment
tolerates neither laws nor other means of coercion, persuasion or intimidation
‘that cast a pall of orthodoxy’ over the free exchange of ideas in the
classroom.” Dube v. State Univ. of N.Y., 900 F.2d 587, 598 (2d Cir. 1990)
(internal citations omitted) (quoting Keyishian v. Bd. of Regents, 385 U.S.
589, 603 (1967)).
Even so, “courts understandably have been hesitant to define the precise
contours of the First Amendment right to academic freedom.” Radolf, 364 F.
Supp. 2d at 215 (collecting cases). “The right to academic freedom is often
formulated as a right of a university or other academic institution to be free
from government interference with its curriculum and its decisions on who
may or may not teach or be admitted to study.” Id. at 216 (same).
Measured against this particular body of First Amendment law, Heim has
not marshaled evidence from which a reasonable jury could find in his favor
on this kind of § 1983 claim. To be sure, in some limited instances “courts
have acknowledged that an individual professor or student possesse[s] an
individual right to academic freedom.” Radolf, 364 F. Supp. 2d at 216; see
also Burt, 502 F.3d at 190–91 (summarizing instances in which this general
right to academic freedom can be implicated); but see Urofsky v. Gilmore, 216
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F.3d 401, 410 (4th Cir. 2000) (concluding that this generalized right “inheres
in the University, not in individual professors”).
For instance, in Dube v. State University of New York, the Second Circuit
“upheld the right of a teacher, in a course on racism, to express the view that
Zionism was a form of racism . . . despite the offensiveness of the teacher’s
viewpoint to some students and some members of the community.” Vega v.
Miller, 273 F.3d 460, 467 (2d Cir. 2001) (explaining that “Dube serves as a
caution to governmental administrators not to discipline a college teacher for
expressing controversial, even offensive, views”).
However, as defendants correctly emphasize in their opening brief, Heim
does not claim that he was prohibited from, or even admonished for, teaching
or advocating for Keynesianism or Keynesian economic principles in any of
the various classes he taught and continues to teach at SUNY Albany. Nor
does he allege any interference from faculty or administrative personnel with
respect to his teaching methods, his publication of articles and books, or even
with his in- or out-of-classroom speech and advocacy.
In his opposition, Heim contends that this claim should not be dismissed
because defendant Daniel “removed” him from teaching an economics class on
large-scale macroeconomic modeling when she first became chair of the

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economics department. Pl.’s Opp’n, Dkt. No. 73 at 26–27. 8 Defendants reply
that this is a mischaracterization of the event. See Defs.’ Reply at 5. In their
view, plaintiff was not “removed” from teaching this course; instead, “[h]is
contract to teach the advanced level course was simply not renewed the
following year.” Id. (quoting Masters Decl., Dkt. No. 77-1 ¶ 30).
Even assuming for the purpose of summary judgment that defendant
Daniel in fact “removed” this class from Heim’s teaching load, no reasonable
jury could find in plaintiff’s favor on this claim. As an initial matter, both
parties seem to treat this claim as an afterthought. Plaintiff has not offered
evidence or argument about any of the relevant events that might be related
to this so-called “removal,” including such basic facts as when and under
what circumstances it occurred. See Pl.’s Opp’n at 26–27.
Notably, this “removal” also appears to have been an isolated change in
Heim’s teaching responsibilities. Plaintiff’s own affidavit indicates that,
outside of this singular incident, he taught and continues to teach “a full
course load” that is “equal to that of tenure-track faculty” at SUNY
Albany. See, e.g., Heim Aff. ¶ 11; see also Heim Dep. at 38:8–70:9 (describing
courses taught each semester during this time period).

8 Pagination corresponds to CM/ECF.

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In other words, Heim remains able to teach classes on an equal basis with,
and without interference from, the rest of the economics department, which is
staffed with a group of DSGE adherents who are allegedly hostile to his
divergent theoretical approach. Without further evidence to substantiate this
claim, there is no basis on which a rational jury could conclude that plaintiff’s
general right to “academic freedom” has been violated. Cf. Amato v. Hartnett,
936 F. Supp. 2d 416, 433 (S.D.N.Y. 2013) (noting that “reductions in workload
or inferior or less desirable assignments can constitute adverse employment
actions where they impact a plaintiff’s opportunity for professional growth
and career advancement” but rejecting the plaintiff’s claim absent evidence
“aside from his own personal opinion” that being reassigned was “less
desirable”).
Besides, regardless of the appropriate characterization of this change in
Heim’s initial teaching responsibilities, any § 1983 claim on this basis would
certainly be time-barred. Although he blames defendant Daniel’s move to the
chair of the economics department for his “removal” from the course on
large-scale economic modeling, plaintiff’s own affidavit states that he only
taught this particular course during the “first semester” he was at SUNY
Albany, which by his own admission was in 2012. Heim Aff. ¶ 11. Because
plaintiff did not file this § 1983 action until 2018, a claim based on these facts
would run afoul of the three-year statute of limitations applicable to § 1983
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claims in New York. See, e.g., Pearl v. City of Long Beach, 296 F.3d 76, 78 (2d
Cir. 2002). Accordingly, plaintiff’s § 1983 “academic freedom” claim must be
dismissed.
B. Retaliation
This leaves for consideration Heim’s § 1983 First Amendment claim that
defendants refused to consider him for the tenure-track faculty position
ultimately filled by Ben Griffy. 9
Heim styles this as a retaliation claim. Pl.’s Opp’n at 13–26. “To state a
First Amendment retaliation claim, a plaintiff must establish that: (1) his
speech or conduct was protected by the First Amendment; (2) the defendant
took an adverse action against him; and (3) there was a causal connection
between this adverse action and the protected speech.” Cox v. Warwick
Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011) (citations omitted).
The parties’ dispute centers on the first element of this test. Defendants
argue that, under the Supreme Court’s decision in Garcetti v. Ceballos, 547
U.S. 410 (2006), a public employee’s speech does not enjoy First Amendment
protection unless he can show that (a) he spoke in the capacity of a “private
citizen” (b) on a matter of “public concern.” Defs.’ Mem. at 4–7.

9 Plaintiff did not apply for the earlier positions filled by Yue Li or Lewis Segal. To the extent

plaintiff contends that Daniel should not have discouraged him from applying (in the case of Yue Li’s
hiring) or that defendants followed an improper administrative process (in the case of Lewis Segal’s
hiring), those are not sufficiently adverse actions on which to sustain a § 1983 claim.
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In opposition, Heim contends that Garcetti does not apply to faculty
speech rights in the academic context at a public university. See Pl.’s Opp’n
at 14–18. Instead, plaintiff argues, the more lenient “public concern”
analysis and balancing test established by the Supreme Court in Pickering v.
Board of Education, 391 U.S. 563 (1968), and refined in Connick v. Myers,
461 U.S. 138 (1983), should apply to his “speech.” Id.
In reply, defendants point out that even under Pickering and Connick, the
plaintiff must still make a threshold showing that the speech in question
addressed a matter of “public concern.” Defs.’ Reply at 6–7. According to
defendants, plaintiff’s speech and advocacy about Keynesianism and
Keynesian economic concepts was “apolitical.” Id. at 9.
As defendants explain, rather than “holding lectures or seminars on
corruption in the economy or abuses in government, the State, or SUNY” or
“holding a rally or debate to advocate the overthrow of the economic system
in our country,” Heim was merely engaged in researching and teaching about
“economic modeling” and “statistical analysis,” neither of which implicate
matters of broad public concern. Defs.’ Reply at 9.
1. Protected Speech or Expressive Conduct
First in Pickering and then again in Connick, the Supreme Court sought
to strike “a balance between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the State, as
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an employer, in promoting the efficiency of the public services it performs
through its employees.” Connick, 461 U.S. at 140 (quoting Pickering, 391
U.S. at 568); see also Locurto v. Guiliani, 447 F.3d 159, 172 (2d Cir.
2006) (summarizing the pre-Garcetti analysis in the Second Circuit).
On the one hand, “[a] government employee does not relinquish all First
Amendment rights otherwise enjoyed by citizens just by reason of his or her
employment.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). “On the other
hand, a governmental employer may impose certain restraints on the speech
of its employees, restraints that would be unconstitutional if applied to the
general public.” Id.
Later, in Garcetti, the Supreme Court “narrowed the Court’s jurisprudence
in the area of employee speech by further restricting the speech activity that
is protected.” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 593
F.3d 196, 201 (2d Cir. 2010) (cleaned up). In particular, Garcetti held that
“when public employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer
discipline.” Garcetti, 746 F.3d at 421.
Importantly, though, Garcetti expressly declined to decide whether its
narrowing of First Amendment public-employee speech protections “would
apply in the same manner to a case involving speech related to scholarship or
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teaching.” 547 U.S. at 425. This so-called “academic reservation” came in
response to a dissent from Justice Souter, who cautioned that a too-broad
reading of Garcetti’s holding might “imperil First Amendment protection of
academic freedom in public colleges and universities,” since teachers at these
public institutions “necessarily speak and write ‘pursuant to . . . official
duties.’” Id. at 438 (Souter, J., dissenting) (alteration in original).
Lower courts have relied on Garcetti’s “academic reservation” to reach
different results depending on the precise factual context and, just as
importantly, the status of the speaker. Compare Meriwether v. Hartop, 992
F.3d 492, 505 (6th Cir. 2012) (holding Garcetti inapplicable to college and
university professors engaged in “core academic functions, such as teaching
and scholarship”), with Evans-Marshall v. Bd. of Educ. of Tipp City Exempted
Vill. Sch. Dist., 624 F.3d 332, 334, 342–43 (6th Cir. 2010) (applying Garcetti
to conclude that “the First Amendment does not extend to the in-class
curricular speech of teachers in primary and secondary schools”).
The courts that have declined to apply Garcetti to academic speech by
public university professors have instead applied the less demanding “public
concern” analysis and balancing test established by the Supreme Court in
Pickering and refined in Connick. See, e.g., Demers v. Austin, 746 F.3d 402,
412 (9th Cir. 2014) (“Garcetti does not—indeed, consistent with the First

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Amendment, cannot—apply to teaching and academic writing that are
performed ‘pursuant to the official duties’ of a teacher and professor.”).
Despite these developments elsewhere, the parties agree that our Circuit
has yet to squarely address the question. Bhattacharya v. SUNY Rockland
Cmty. Coll., 719 F. App’x 26 (2d Cir. 2017) (summary order) (noting Garcetti’s
“academic reservation” but distinguishing the claim of an adjunct public
university professor on factual grounds because his “speech involved neither
scholarship nor teaching”); Lee-Walker v. N.Y. City Dep’t of Educ., 712 F.
App’x 43, 45 (2d Cir. 2017) (summary order) (declining to reach public high
school teacher’s argument about “whether Garcetti in fact applies to speech
made by educators”).
Because the parties advocate in their briefing for different approaches, the
Court will analyze the first element of Heim’s § 1983 retaliation claim under
both rubrics: first, under Garcetti; and second, under Pickering and Connick.
i. Garcetti
Under Garcetti, public employees speak in their capacity as public
employees, and not private citizens, when they “make statements pursuant to
their official duties.” 547 U.S. at 421. “Restricting speech that owes its
existence to a public employee’s professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private citizen.” Id. at

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421–22. Instead, “[i]t simply reflects the exercise of employer control over
what the employer itself has commissioned or created. Id. at 422.
In Weintraub, the Second Circuit explained that “[t]he objective inquiry
into whether a public employee spoke ‘pursuant to’ his or her official duties is
‘a practical one.’” Weintraub, 593 F.3d at 202 (quoting Garcetti, 547 U.S. at
424); see also Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012) (“The inquiry
into whether a public employee is speaking pursuant to her official duties is
not susceptible to a brightline rule.”).
To conduct this practical inquiry, “[c]ourts must examine the nature of the
plaintiff’s job responsibilities, the nature of the speech, and the relationship
between the two.” Ross, 693 F.3d at 306. “Other contextual factors, such as
whether the complaint was also conveyed to the public, may properly
influence a court’s decision.” Id. For example, speech may be considered
“pursuant to” an employee’s official responsibilities if it is “part-and-parcel of
[the employee’s] concerns about his ability to properly execute his
duties.” Weintraub, 593 F.3d at 203 (cleaned up). The same is true if the
speech in question lacks a “citizen analogue”; i.e., a “relevant analogue to
speech by citizens who are not government employees.” Id. at 203.
Importantly, though, “[f]ormal job descriptions often bear little
resemblance to the duties an employee actually is expected to perform, and
the listing of a given task in an employee’s written job description is neither
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necessary nor sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment
purposes.” Garcetti, 547 U.S. at 424–25 (rejecting “the suggestion that
employers can restrict employees’ rights by creating excessively broad job
descriptions”).
Likewise, “the mere fact that a citizen’s speech concerns information
acquired by virtue of his public employment does not transform that speech
into employee—rather than citizen—speech.” Lane v. Franks, 573 U.S. 228,
240 (2014). Instead, “[t]he critical question under Garcetti is whether the
speech at issue is itself ordinarily within the scope of an employee’s duties,
not whether it merely concerns those duties.” Id.
Upon review, the application of Garcetti to the facts of this case would
leave Heim’s “speech” unprotected as a matter of law. Even viewed in the
light most favorable to him, plaintiff’s evidence establishes that with one
exception for the large-scale economic modeling course mentioned supra, he
has been teaching the same basic course load since his first semester at
SUNY Albany in 2012. During that time, plaintiff has discussed Keynesian
economic principles in classroom settings, but that speech or expressive
conduct—delivering in-class instruction to enrolled students—would
unquestionably qualify as part of his “official duties” as an adjunct faculty
member in the economics department.
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The same is true of Heim’s out-of-class speech and activity. As defendants
point out, plaintiff’s publication of various articles and books using Keynesian
analytical methods (such as Hicksian IS-LM statistical analysis) would also
fall comfortably within Garcetti’s “official duties” analysis. Academic writing
and research on matters related to a field of study in which the teacher is
employed fall well within the “official duties” of a public university professor.
Although Heim contends that his publication activities 10 “were hardly
compelled by his teaching position at SUNY” and argues that his job position
“contains no requirement that he publish anything at all,” Pl.’s Opp’n at 16,
the Second Circuit has applied Garcetti to hold that speech can still be
considered “pursuant to” an employee’s official duties “even though it is not
required by, or included in, the employee’s job description or in response to a
request by the employer.” Weintraub, 593 F.3d at 203.
In short, the evidence conclusively establishes that Heim’s in-class speech
and instruction, as well as his various out-of-class writings on Keynesian
economic concepts, all of which occurred during his employment as a
professor in an economics department where he lectured on a range of
economic concepts, occurred “pursuant to” his official duties at SUNY

10 For instance, Heim emphasizes that his books were published by an outside academic

publisher. Pl.’s Opp’n at 17. But he also acknowledges that these books were publicized by SUNY
Albany and that at least one of them was “listed in a University at Albany Celebration of
Scholarship on May 1, 2018.” Heim Aff. ¶ 14.
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Albany. Accordingly, plaintiff’s § 1983 First Amendment retaliation claim is
subject to dismissal on this basis.
ii. Pickering and Connick
Heim disputes the applicability of Garcetti. Instead, plaintiff points to
decisions from other Circuits—such as the Ninth Circuit’s decision in Demers
v. Austin—that have relied on Garcetti’s “academic reservation” language to
distinguish Garcetti from, or hold Garcetti inapplicable to, fact patterns that
involve teaching and academic writing by a public academic employee. Pl.’s
Opp’n at 16–19. Although this speech or expressive conduct may have been
undertaken pursuant to the employee’s “official duties,” these courts apply
the “public concern” analysis and balancing test from Pickering and Connick.
Under Pickering and Connick, public employees enjoy First Amendment
protections when they speak on a matter of “public concern.” Connick, 461
U.S. at 146. “Whether speech is on a matter of public concern is a question of
law, and is to be answered by the court after examining the content, form,
and context of a given statement, as revealed by the whole record.” Montero
v. City of Yonkers, 890 F.3d 386, 399 (2d Cir. 2018) (cleaned up).
Generally speaking, “[s]peech involves matters of public concern when it
can be fairly considered as relating to any matter of political, social, or other
concern to the community, or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to the
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public.” Lane, 573 U.S. at 241 (cleaned up) (quoting Snyder v. Phelps, 562
U.S. 443, 453 (2011)). However, “speech that principally focuses on an issue
that is personal in nature and generally related to the speaker’s own
situation or that is calculated to redress personal grievances—even if
touching on a matter of general importance—does not qualify for First
Amendment protection.” Montero, 890 F.3d at 399–400 (cleaned up).
Defendants contend that Heim’s “publication of two books and his
authorship of approximately 60 articles, books, and reports” only discuss
“economic principles[;] [t]hey do not discuss issues of public concern or [of]
legitimate news interest.” Defs.’ Mem. at 6. According to defendants,
plaintiff’s publication and sale of textbooks outside of his duties at SUNY
Albany do not change this analysis because “this conduct was taken for
personal, financial gain.” Id. at 7.
In opposition, Heim concedes that he “received some remuneration for his
books” but argues that “[t]here is no evidence that [financial gain] was his
primary purpose in writing the books” because, inter alia, “[t]he subject
matter of his books was highly unlikely to put them on the New York Times
bestseller list, as their scope was of interest to those engaged in academic
discussion of economics . . . or governmental officials engaged in economic
forecasting.” Pl.’s Opp’n at 18.

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Heim further argues that his “writings eminently relate to a matter of
public concern.” Pl.’s Opp’n at 20. According to him, “[w]hether Keynesian or
DSGE economics correctly reflect the world is an essential matter of public
concern that is constantly a matter of public debate.” Id. As plaintiff
explains, “[w]hich theory is employed substantially affects the ability of
government to design policy to produce an economy that benefits the public in
their everyday lives.” Id.
Upon review, Heim’s speech would also be unprotected as a matter of law
under Pickering’s “public concern” analysis. “As a general rule, a lawsuit is
more likely to implicate a matter of public concern if it addresses ‘pervasive
or systemic misconduct’ by public officials than if it alleges isolated instances
of misfeasance.” Milardo v. Town of Westbrook, 120 F. Supp. 3d 206, 217 (D.
Conn. 2015) (quoting Huth v. Haslun, 598 F.3d 70, 75 (2d Cir. 2010)). “So too
if it appears that the suit is ‘part of an overall . . . effort to correct allegedly
unlawful practices or bring them to public attention’ rather than a mere
endeavor to obtain relief ‘of a personal nature.’” Id. (quoting Saulpaugh v.
Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993)).
Heim attempts to characterize his speech and writing about Keynesian
economic principles as being a selfless attempt to ensure that the economic

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theories used by our political leadership accurately reflect reality. 11 See, e.g.,
Pl.’s Opp’n at 20. And to be sure, the motivation behind a public employee’s
speech is an appropriate factor to be considered in the “public concern”
analysis. See, e.g., Montero, 890 F.3d at 400.
However, “a speaker’s motive is not dispositive in determining whether his
or her speech addresses a matter of public concern.” Sousa v. Roque, 578
F.3d 164, 173 (2d Cir. 2009); cf. Nagle v. Marron, 663 F.3d 100, 107 (2d Cir.
2011) (“[T]he primary question for First Amendment purposes is whether the
matter is of public concern, not whether the speech was also made to serve
some private interest.”).
Even viewed in the light most favorable to him, a review of the “content,
form, and context” of Heim’s teaching and academic writing establishes that
it is not the “subject of general interest . . . and concern to the public.” Lane,
573 U.S. at 241 (emphasis added). By plaintiff’s own admission, his books
and other writings on the question of “[w]hether Keynesian or DSGE
economics correctly reflect the world” are written to a specific, narrow
audience: policy wonks “engaged in academic discussion of economics” and
“government officials engaged in economic forecasting.” See Pl.’s Opp’n at

11 The Second Circuit has opined that “discussion regarding current government policies and

activities is ‘perhaps the paradigmatic “matter[ ] of public concern.’” Harman v. City of N.Y., 140
F.3d 111, 118 (2d Cir. 1998) (quoting Sanjour v. Env’t Prot. Agency, 56 F.3d 85, 91 (D.C. Cir. 1995)
(in banc)).
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18. And while it is not a dispositive factor, plaintiff has also enjoyed a direct,
personal stake in this extra-curricular speech: monetary payments in
exchange for publication. Id.
In short, Heim’s academic writings about Keynesian economic concepts,
which concern complex statistical modeling intended for consumption by a
relatively narrow audience, do not qualify as speech on matters of “public
concern.” Accordingly, plaintiff’s § 1983 First Amendment retaliation claim
is subject to dismissal on this basis even if Garcetti does not apply.
2. Adverse Action
The second element of Heim’s § 1983 retaliation claim requires him to
establish that defendants took an “adverse action” against him. The parties
do not belabor this point in their briefing, but as discussed supra, plaintiff
has offered up a laundry list of possible “speech” related to his advocacy for
Keynesianism—and the accompanying slights from faculty members who
advocate for DSGE—stretching back to the very beginning of his time at
SUNY Albany in 2012. Because most of these facts do not amount to
“adverse action,” it is useful to take a moment to clarify what actually
qualifies for the purpose of a First Amendment analysis.
“[T]he proper legal test in determining whether an employment action is
adverse in First Amendment retaliation cases is whether the alleged acts
‘would deter a similarly situated individual of ordinary firmness from
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exercising his or her constitutional rights.’” Dillon v. Morano, 497 F.3d 247,
254 (2d Cir. 2007) (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225
(2d Cir. 2006)).
“In the First Amendment retaliation context, ‘[a]dverse employment
actions include discharge, demotion, refusal to hire, refusal to promote, and
reprimand.’” Fotopoulous v. Bd. of Fire Comm’rs of Hicksville Fire Dist., 11
F. Supp. 3d 348, 364–65 (E.D.N.Y. 2014) (quoting Kaluczky v. City of White
Plains, 57 F.3d 202, 208 (2d Cir. 1995)). Likewise, “a combination of
seemingly minor incidents [may also] form the basis of a constitutional
retaliation claim once they reach a critical mass.” Phillips v. Bowen, 278 F.3d
103, 109 (2d Cir. 2002) (citation omitted).
As the Second Circuit has explained:
[T]o prove a First Amendment retaliation claim in a
situation other than the classic examples of
termination, refusal to hire or promote, demotion,
reduction in pay, and reprimand, a plaintiff must show
that (1) using an objective standard; (2) the total
circumstances of her working environment changed to
become unreasonably inferior and adverse when
compared to a typical or normal, not ideal or model,
workplace.
Amato, 936 F. Supp. 2d at 433 (citation omitted).
Upon review, defendants’ refusal to promote Heim to the tenure-track
faculty position filled by Ben Griffy (for which he was refused an interview in
December of 2017) qualifies as an “adverse action” for the purpose of this
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analysis. However, as explained supra, plaintiff did not apply for the earlier
positions that were filled by Yue Li and Lewis Segal. To the extent plaintiff
contends that Daniel should not have discouraged him from applying (in the
case of Yue Li’s hiring) or that defendants followed an improper internal or
administrative process (in the case of Lewis Segal’s hiring), those are not
sufficiently adverse actions on which to sustain a § 1983 claim. 12
3. Causation
The third element of Heim’s § 1983 retaliation claim requires him to
establish a causal relationship between the “adverse action”; i.e., defendants’
refusal in late December of 2017 to interview or hire him for the tenure-track
faculty position filled by Ben Griffy, and his protected speech; i.e., his
teaching and academic writing about Keynesian economic concepts.
To demonstrate causation, “a plaintiff must show that the protected
speech was a substantial motivating factor in the adverse employment
action.” Smith v. Cty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (quoting
Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.
2006)). “A plaintiff may establish causation either directly through a
showing of retaliatory animus, or indirectly through a showing that the

12 Although these events are not separately actionable under § 1983, they remain relevant as

background evidence in support of Heim’s claim. The same is true of his alleged “removal” from
large-scale economic modeling after his first semester of teaching at SUNY Albany.
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protected activity was followed closely by adverse action.” Id. (citing Cobb v.
Pozzi, 363 F.3d 89, 108 (2d Cir. 2004)).
As an initial matter, analysis of this element is made more difficult by the
fact that Heim takes such a sweeping approach to his claim. By his own
account, plaintiff has been employed by SUNY Albany since 2012. He has
been teaching and writing on Keynesian economic concepts for that entire
duration. There is no question that his fellow faculty members, including
Daniel and Masters, have been aware of his viewpoints on economic theory
from almost the very beginning of this time period, if not even longer.
Although Heim complains that Daniel “discouraged” him from applying to
a position in 2013 and accuses defendants of violating their own internal
policies in connection with a hire they made in 2016, plaintiff did not actually
apply to either of these jobs. And aside from being refused the promotion in
2017, plaintiff concedes defendants have not otherwise interfered with his
teaching or academic writing, whether in class or outside of it. In short, as
defendants point out, plaintiff has not really tied the particular alleged
“adverse action” to “any particular lecture, conversations, public statement,
or publication.” Defs.’ Reply at 12.
Nevertheless, viewed in the light most favorable to him, Heim has
established that faculty members, including defendants Daniel and Masters,
disagreed with his Keynesian approach, believed it to be of lesser value than
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DSGE, and were even “hostile” to his academic work. Accordingly, plaintiff
has identified sufficient evidence from which a rational fact finder might
conclude that defendants’ hostility to his “speech” was a “substantial
motivating factor” in their refusal to promote him to the 2017 opening.
Even so, Heim’s § 1983 claim must be dismissed because there is
overwhelming evidence that defendants’ refusal to promote him was also
motivated by legitimate pedagogical concerns. Where, as here, “the plaintiff
makes out a prima facie retaliation claim, a government defendant may still
receive summary judgment if it establishes its entitlement to a relevant
defense.” Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011).
As relevant here, in Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), the Supreme Court established a
burden-shifting framework in which a defendant-employer “may escape
liability [ ] by proving by a preponderance of the evidence that the same
employment action would have been taken absent the protected
conduct.” Coogan v. Smyers, 134 F.3d 479, 484 (2d Cir. 1998).
In Mt. Healthy, the Court explained that “[t]he constitutional principle at
stake is sufficiently vindicated if [the] employee is placed in no worse a
position than if he had not engaged in the conduct.” 429 U.S. at 285–86. In
other words, “even if retaliation might have been a substantial motive for the
[employer’s] action, . . . there was no liability unless the alleged constitutional
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violation was a but-for cause of the [adverse action].” Lozman v. City of
Riviera Beach, 138 S. Ct. 1945, 1952 (2018).
Importantly, “[t]he burden is on the [defendant-employer] to make out the
[same decision] defense.” Anemone, 629 F.3d at 115 (citation omitted); see
also Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (explaining Mt.
Healthy’s burden-shifting framework in context of a First Amendment
“political discrimination” claim). However, “[s]ince courts do not themselves
weigh evidence at the summary judgment stage, this standard requires us to
determine whether any reasonable trier of fact would have to conclude that
the evidence was so strongly in the defendant’s favor that there remained no
genuine issue of material fact for it to resolve.” Nagle v. Marron, 663 F.3d
100, 105 (2d Cir. 2011).
Upon review, the application of Mt. Healthy’s same-decision defense
requires dismissal of Heim’s claim on summary judgment. Even viewed in
the light most favorable to him, the evidence establishes that a reasonable
jury would be compelled to conclude that defendants would not have
promoted plaintiff to the position ultimately filled by Ben Griffy regardless of
plaintiff’s protected speech. Cf. Gonzalez v. City of N.Y., 442 F. Supp. 3d 665,
697–98 (S.D.N.Y. 2020) (granting summary judgment to defendant-employer
on same-decision defense where employer “provided ample justification” for
its refusal to interview the plaintiff).
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As Masters summarized in his e-mail to Heim, there is substantial
evidence in the record that demonstrates the SUNY Albany hiring committee
was seeking someone (1) with a desire to “teach and train students” to
conduct DSGE macroeconomics: (2) who stood a good chance of making
tenure, which required publication in a certain set of journals 13; and (3) who
shared a DSGE research agenda that would permit constructive collaboration
with other faculty members in the department. Although plaintiff disputes
some or all of this selection criteria as wrong-headed or misguided, there can
be no doubt that a public university’s search committee enjoys latitude to
make promotional decisions on these educational bases.
In reaching this conclusion, it bears emphasizing that the Supreme Court
has repeatedly cautioned about the danger of constitutionalizing tenure-track
faculty hiring decisions, which are made by specialists in the relevant field of
study on behalf of institutions with First Amendment interests of their
own. Cf. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter,
J., concurring) (“It is the business of a university . . . . to determine for itself
on academic grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study.”).

13 The parties dispute whether or not plaintiff published in “top” journals. But that is beside

the point, since a tenure committee is entitled to decide for itself which journals it prefers.
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Those countervailing interests necessarily include the freedom to make
subjective value judgments about what kind of economic theory should be
taught to public university students. See, e.g., Bickerstaff v. Vassar Coll., 196
F.3d 435, 455 n.7 (2d Cir. 1999) (“Determinations about such matters as
teaching ability, research scholarship, and professional stature are
subjective, and unless they can be shown to have been used as the
mechanism to obscure discrimination, they must be left for evaluation by the
professionals, since they often involve inquiry into aspects of arcane
scholarship beyond the competence of individual judges.” (citation
omitted)). Accordingly, plaintiff’s claim is subject to dismissal on this basis
as well. 14
C. Limited Public Forum
In a final attempt to save his § 1983 claim, Heim contends that “the
position of a university professor” should be analyzed as “a limited public
forum and afford such position the same viewpoint protection.” Pl.’s Opp’n at
22–24. “The government discriminates against viewpoints when it disfavors
certain speech because of ‘the specific motivating ideology or the opinion or
perspective of the speaker.’” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 31

14 Because this claim fails on the merits, it is unnecessary to address qualified

immunity. However, given the substantial uncertainty in this area of First Amendment law the
doctrine almost certainly applies to defendants’ conduct in this case.
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(2d Cir. 2018) (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 828 (1995)).
Of course, “forums” are places, not people. So the “forum” analysis
advanced by plaintiff would have to be related to his speech in a SUNY
classroom or campus lecture hall rather than the considerably more abstract
notion of “the position of a university professor.” However, even assuming
that university professors are entitled to viewpoint protection under a forum
analysis, there is no evidence from which to conclude that either defendant
took any action to restrict or censor plaintiff’s speech or activities in those
settings or anywhere else. Indeed, plaintiff remains employed by SUNY
Albany as a professor in the economics department. Accordingly, this claim
must be dismissed. 15
V. CONCLUSION
Because Heim has failed to marshal evidence from which a rational jury
could find in his favor, his remaining § 1983 claim must be dismissed.
Therefore, it is
ORDERED that
1. The Clerk of the Court is directed to terminate Havidan Rodriguez,
University at Albany, and The State University of New York as defendants;

15 Given the apparent novelty of this claim, there is no question that qualified immunity would

shield the individual defendants in this action.

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2. Defendants’ motion for summary judgment is GRANTED; and
3. Plaintiff’s amended complaint is DISMISSED.
The Clerk of the Court is directed to terminate any pending motions and
enter a judgment accordingly.
IT IS SO ORDERED.

Dated: May 10, 2022
Utica, New York.

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