By Greg Care

Earlier this month, the U.S. Court of Appeals for the Third Circuit issued a decision that addresses several topics currently being hotly debated in our society: diversity, equity, and inclusion; bias and discrimination; “cancel culture;” and academic freedom. In siding (mostly) with a beleaguered faculty member, the Court drew some important lines between fair academic debate and illegal retaliation for expressing unpopular ideas. I predict this decision will be joined by others in the years to come.

The case at hand is Wang v. University of Pittsburgh, and the Court’s prologue to its opinion is a great table-setter for the weighty issues it discusses:

Academic debate is a full-contact sport. Debating ideas and questioning arguments can bruise people’s egos. But like boxing, academic debate bars low blows. Academics may not harm one another by recklessly disregarding the truth. Administrators may not demote professors for calling out discrimination. And managers may not create or tolerate hostile work environments. A culture that cancels instead of counsels sacrifices persuasion on the altar of power. In doing so, it forgets that the remedy for disfavored speech is more speech, not coerced silence.

This legal fight originated from an article by Dr. Norman Wang, a board-certified cardiologist who was both a professor at the University of Pittsburgh’s public medical school (Pitt) and an employee of the affiliated private hospital system (UPMC). The Third Circuit summarized Dr. Wang’s article this way: “He worried that race-based affirmative action in medical schools and hospital residencies discriminates against some minorities in favor of others, could violate the law, and harms the very doctors whom it tries to help.”

The aftermath is what spurred Dr. Wang’s legal claims: “Though most commentators opposed his views, some research supported it. After he published an article expressing those views, his bosses (also mostly doctors) allegedly denounced it as false and racist, fanned the flames on social media, demoted him at the hospital system, and got his article retracted.”

Specifically, two days after doctors contacted Pitt leadership to complain about Dr. Wang’s article, the chief of cardiology at UPMC (Dr. Saba) and Strategic Director of the UPMC Heart and Vascular Institute – Cardiology (Dr. Berlacher) removed Dr. Wang from his role as the Program Director of the cardiology fellowship program. Then, Drs. Berlacher and Saba and others “launched a social media campaign to discredit Wang’s article” via their personal and official UPMC accounts. Two days after that, Drs. Berlacher and Saba banned Dr. Wang from any role teaching fellows, residents, or medical students. In response to entreaties from Drs. Berlacher and Saba and others, the Journal of the American Heart Association retracted the article.

Following that, “[m]ultiple institutions objected that Wang had been disciplined without due process for exercising his academic freedom. The university’s Tenure and Academic Freedom Committee asked the medical-school dean to reinstate Wang. The American Association of University Professors thought the same. The U.S. Department of Education started investigating whether the university’s ‘campaign of denunciation’ . . . .” In response, the Pitt medical school dean backtracked and said Drs. Berlacher and Saba had no authority to alter Dr. Wang’s status in the university.

Due to the professional harms Dr. Wang encountered, he sued several entities and individuals on three legal theories: defamation, retaliation under federal civil rights laws, and First Amendment retaliation. The trial court dismissed all claims, but the Third Circuit revived some of them.

Regarding defamation, the Court recited the truism that “[a] statement can be defamatory if ‘it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’” While statements of fact are classically the subject of defamation claims, opinions can be, too, if they “give[ ] rise to the inference that there are undisclosed facts that justify the forming of the opinion.” The Court looked at the context and found that the “tweets accused Wang of misquoting and misreading data and sources—both of which are falsifiable claims. So they were more hit job than academic argument.” In the Court’s analysis, the tweets went beyond merely calling Dr. Wang a racist—which, on its own, is not enough to be defamatory in Pennsylvania—and went a step further by essentially claiming that “his racism led him to distort facts and evidence in connection with his work as an academic and a doctor.” As such, there was defamatory harm to Dr. Wang’s academic integrity and professional reputation. The Court applied the same logic to the academic journal’s statements surrounding its retraction, that Dr. Wang was, as the Court put it, “spreading half-truths and lies.”

Next, the Court addressed the common affirmative defense that the alleged defamatory statements were true. After addressing what is fair game at the motion to dismiss stage, the Court examined the academic journal’s statement that Dr. Wang’s article contained “misconceptions and misquotes” based on two exemplars from the article—finding that the journal’s statement was “exaggerated greatly” and could not invoke the “truth defense.”

Turning to the requirement that Dr. Wang prove the defendants acted with “actual malice” (because Dr. Wang inserted himself into a public debate about the controversial issue of affirmative action), the Court found Dr. Wang alleged sufficient evidence of this. It reasoned that it was plausible to infer that Drs. Berlacher and Saba “knew, or at least recklessly disregarded the possibility, that their tweets were flat wrong.” First, Dr. Wang “alleges facts—especially Berlacher’s and Saba’s own tweets—supporting an inference that they had checked Wang’s citations and quotations and found them (with one minor exception) substantially accurate. Nonetheless, they trashed his article on Twitter, telling the public that Wang had repeatedly misquoted his sources, knowing that was ‘contrary’ to the information they had.” Second, the Court credited an inference that Drs. Berlacher and Saba intentionally avoided learning the truth, buttressed by the fact that Dr. Wang’s article was published after a peer-review process “designed to weed out the egregious errors that Berlacher and Saba accused Wang of making.” Third, the Court noted that “the speed of Berlacher and Saba’s stampede strongly suggests a reckless rush.”

Regarding the federal civil rights retaliation claims, the Court began by acknowledging, but then dodging, a thorny issue important to civil rights law. “Wang criticized what he believed was the hospital’s and university’s illegal practice of giving racial preferences,” which was the claimed “protected activity” under Title VI of the Civil Rights Act and 42 U.S.C. § 1981. The trial court dismissed, in part, on the basis that Dr. Wang had not specifically called out Pitt or UPMC for violating these laws. In finding the trial court erred, the Third Circuit began by saying “it is not clear that an employee must oppose his own employer’s illegal actions. All the statute seems to require is ‘oppos[ing] any practice made . . . unlawful.’” Without deciding the issue more broadly, the Court concluded that Dr. Wang’s opposition to racial preferences could have been construed as being directed at his university and employer.

To establish that Dr. Wang suffered adverse actions, the Court looked at his demotion and ban on interacting with students and residents, finding them sufficiently adverse. Going further, the Court held that the intense “blowback” and harassment Dr. Wang encountered at work sufficed. So, too, for the journal’s retraction.

And, for purposes of the Title VI claim, while the Court found that Dr. Wang had not alleged enough facts to establish that the primary purpose of Pitt’s receipt of federal funds was to provide employment, it concluded the opposite regarding UPMC, which runs the residency and fellowship programs. Given my focus on residency matters, I took interest in the Court’s statement that “[m]edical residency straddles the line between education and employment,” and that Dr. Wang did enough by citing to UPMC’s receipt of federal money to fund residents. To me, this affirms that medical residents can be—for the broad remedial purposes of civil rights laws—employees deserving of the protections of at least those laws, if not also civil rights laws intended to protect students, even within the same case.

Dr. Wang’s hot streak ended with his First Amendment retaliation claims. He did not establish state action—which is required for constitutional claims—by the private hospital system and those wearing their “hospital-system hat” while allegedly harming him. As for the university, Dr. Wang did not allege facts establishing that university policies caused him harm or that it knowingly acquiesced in constitutional violations.

One member of the three-judge panel filed an opinion dissenting on the defamation issue but concurring with the rest of the majority opinion.

While this dispute began in 2020, all the issues discussed in this case are still very much part of our national discourse and continue to be litigated intensely. As examples, the U.S. Department of Justice found that UCLA and Yale violated Title VI by using race in medical school admissions decisions, and the DOJ is now investigating 15 additional medical schools (more information is available here). The fight will rage on. Meanwhile, there are segments of our society who are underrepresented in medicine (Black, Latino, Native American, and Alaskan Native), especially in residency, and account for a disproportionate number of dismissals. Whatever one makes of the problem and solution, the Third Circuit got it right that silencing or punishing unpopular views is inconsistent with our laws and traditions.

If you have questions regarding academic freedom, discrimination, or mistreatment in residency, please contact us today to see if we can assist with your particular circumstances.

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