Judge: Fired LSU scientist has First Amendment claim

Wednesday, October 26, 2011

NEW ORLEANS — A scientist who said shoddy levee work caused Hurricane Katrina’s devastating floods wasn’t required to keep quiet about his work for Louisiana State University because he wasn’t speaking as a school employee, a federal judge has ruled.

Ivor van Heerden filed a whistleblower suit against LSU last year, saying he was fired out of fear that his criticism of the U.S. Army Corps of Engineers might cost the university federal money.

U.S. District Judge James J. Brady rejected LSU’s argument that van Heerden was speaking as a faculty member when he criticized work by the Army Corps of Engineers.

That keeps his First Amendment claim alive under a 2006 U.S. Supreme Court ruling, Garcetti v. Ceballos, that public employees don’t have free-speech protections for what they say as part of their jobs.

“Although it is a close question, van Heerden was not acting within his official job duties,” Brady wrote in an Oct. 20 summary judgment — one based entirely on court documents, without oral arguments.

LSU will not comment because parts of the lawsuit are still in court, spokeswoman Kristine Calongne said.

Among other things, Brady wrote, “van Heerden’s job duties did not require him to make statements to the media, as it appears clear LSU attempted to limit his appearances, discredit his message, and distance itself from his conclusions.”

Applying the Supreme Court’s 2006 whistleblower ruling wholesale to universities and other academic institutions “could lead to a whittling-away of academics’ ability to delve into issues or express opinions that are unpopular, uncomfortable or unorthodox,” the judge wrote. “Allowing an institution devoted to teaching and research to discipline the whole of the academy for their failure to adhere to the tenets established by university administrators will in time do much more harm than good.”

But even using that standard, van Heerden wasn’t acting within his official job duties, Brady wrote.

Van Heerden had worked for LSU since 1992 on a series of one-year contracts when he was told in April 2009 that he would not get another.

LSU has said that it did not renew van Heerden’s contract because of budget cuts. But an e-mail in February 2009 “could undercut” that argument, and some documents indicate that LSU tried, in spite of the cuts, to fill “substantially the same position,” Brady wrote. He said that attempt also helped keep van Heerden’s whistleblower claim alive.

The judge rejected several of van Heerden’s claims, including one of conspiracy, one for breach of contract and one that LSU officials intentionally caused him emotional distress.

“The record evidence shows their conduct at various times may have been rude, unfair, mean, or calculated to embarrass van Heerden, but none of it contains that extra dose of cruelty necessary for the Court to conclude it was intended to cause severe distress,” Brady wrote.

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