When NIH Data-Use Violations, Not Speech, Drive Discipline: Sixth Circuit Reaffirms Lemaster’s Causation Framework and Same‑Decision Defense in Academic Retaliation Claims

Introduction

This commentary analyzes the Sixth Circuit’s decision in Bryan Pesta v. Cleveland State University, No. 24-3947 (6th Cir. Nov. 4, 2025) (not recommended for publication). The case sits at the intersection of academic freedom, public‑employee First Amendment retaliation doctrine, and federally governed data‑use compliance for human genomic research.

Professor Bryan Pesta, a tenured faculty member at Cleveland State University (CSU), co‑authored a controversial paper, “Global Ancestry and Cognitive Ability,” which argued for genetic explanations of group differences in intelligence. After external complaints, the National Institutes of Health (NIH) found that Pesta violated data-use rules governing restricted access to the dbGaP Trajectories of Complex Phenotypes (TCP) dataset and imposed severe sanctions. CSU independently investigated, found research misconduct, and terminated Pesta. He sued, alleging CSU retaliated for his speech in violation of the First Amendment, and sought reinstatement and declaratory relief on academic freedom.

The Sixth Circuit affirmed summary judgment for CSU officials, emphasizing two core points:

• Under Lemaster v. Lawrence County, the causation standard for First Amendment retaliation requires only that protected speech be a motivating factor; it does not require but‑for causation. But the plaintiff must still produce evidence from which a rational juror could find that motive.
• Even if speech was a motivating factor, defendants can prevail by proving the same‑decision defense—i.e., they would have taken the same action regardless of the speech. The record here made that showing indisputable.

Summary of the Opinion

The panel (Chief Judge Sutton; Judges Gibbons and White; opinion by Judge White) affirmed the district court’s grant of summary judgment to the CSU defendants on two First Amendment retaliation claims (one aimed at the research-misconduct investigation, the other at termination) and on Pesta’s claim for declaratory and injunctive relief.

Key holdings:

• Causation: Applying Lemaster, the court held the record lacked evidence from which a rational factfinder could conclude that the content of Pesta’s paper was a motivating factor for CSU’s adverse actions. Alleged procedural irregularities and isolated internal remarks did not suffice.
• Same‑decision defense: Even assuming speech motivation, no rational jury could reject CSU’s proof that it would have taken the same actions based on serious NIH and CSU‑found violations unrelated to viewpoint or content.
• Declaratory/injunctive relief: The requested declarations—demanding institutional recognition of the “hereditarian hypothesis” as “worthy of study” and its researchers as “entitled to academic freedom”—sought advisory opinions; relief was properly denied.
• Not reached: The court did not resolve Garcetti’s “official duties” question, qualified immunity, or arguments about after-acquired evidence, because causation and the same‑decision showing disposed of the case.

Analysis

Precedents Cited and Their Influence

• Garcetti v. Ceballos, 547 U.S. 410 (2006): The district court alternatively reasoned that even discipline for publishing the paper might not offend the First Amendment if the speech was pursuant to official duties. The Sixth Circuit did not reach this, choosing to affirm on causation and same‑decision grounds.
• Eckerman v. Tennessee Dept. of Safety, 636 F.3d 202 (6th Cir. 2010), and Sowards v. Loudon County, 203 F.3d 426 (6th Cir. 2000): Articulate the three‑part retaliation test—protected conduct, adverse action, and causation. The parties disputed element one in principle, but the panel resolved the case on element three (causation).
• Lemaster v. Lawrence County, 65 F.4th 302 (6th Cir. 2023): Central to the decision. Lemaster clarified that the “motivating factor” test does not require but‑for causation and establishes a burden-shifting framework: once plaintiff shows speech was a motivating factor, the burden shifts and defendants must prove they would have taken the same action regardless. The panel relied on Lemaster both to assess whether Pesta had any evidence to reach a jury on motive and to uphold CSU’s overwhelming same‑decision showing.
• Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008): Illustrates typical causation proofs (comparators, tight temporal proximity). The court noted Pesta lacked such evidence.
• City Management Corp. v. U.S. Chemical Co., 43 F.3d 244 (6th Cir. 1994): Allows affirmance on any ground supported by the record. This let the court affirm without adopting the district court’s Garcetti rationale.
• Good v. Walworth, No. 21‑1429, 2023 WL 9320823 (6th Cir. Aug. 22, 2023), cert. denied, 144 S. Ct. 1071 (2024): Confirms that, after a plaintiff shows motivating factor, the burden does not shift back to the plaintiff to establish pretext; rather, defendants must prove same‑decision.
• McCullough v. University of Arkansas for Medical Sciences, 559 F.3d 855 (8th Cir. 2009), and Crosbie v. Highmark Inc., 47 F.4th 140 (3d Cir. 2022): Cited for the proposition that imperfect or “sloppy” investigations do not themselves establish retaliatory motive; the question is whether the process was a sham or pretext.

Together, these authorities shaped the Sixth Circuit’s two-step approach: (1) no triable evidence that speech motivated the adverse actions; and (2) even if it did, the undisputed compliance violations supplied a dispositive same‑decision defense.

Legal Reasoning

The court applied the familiar three-part retaliation framework, with the focus on causation under Lemaster.

1. Motivating-factor showing failed
   • The court looked for typical indicia of motive, such as comparator evidence or tight timing after protected activity, and found none.
   • Plaintiff’s bid to infer bias from the university’s processes and internal remarks did not carry. Though one committee member initially drafted language condemning the research as harmful, the committee intentionally omitted that language and expressly disclaimed judging the paper’s substance, focusing instead on research‑compliance issues. Testimony confirmed that substantive judgment about the paper’s conclusions lay outside the charge.
   • Alleged procedural flaws—failure to pursue informal resolution, not recording a conversation with an NIH official, limits on direct questioning of complainants, RIO edits to the report, the provost’s references beyond the committee’s precise phrasing—did not amount to evidence of a sham investigation or pretext. The record reflected that the university focused on clearly articulated compliance breaches, not viewpoint suppression.
2. Same‑decision defense independently dispositive
   • NIH findings: The NIH concluded that Pesta violated dbGaP Data Use Certificate (DUC) obligations by (a) conducting undisclosed research beyond the approved Data Access Requests (DARs), (b) uploading restricted genomic data to an unapproved external tool (HIrisPlex‑S), (c) failing to disclose a paper in a renewal, and (d) failing, as PI, to ensure a collaborator’s compliance and destruction of data. NIH imposed a three‑year access revocation and compliance conditions on CSU—the most serious NIH sanction the provost had seen for a PI.
   • CSU findings: The university committee found clear and convincing evidence of four research‑misconduct violations: unauthorized use of NIH controlled-access data; publishing results after NIH said no approval existed; using TCP data without required IRB oversight when conduct fell outside the DUC; and using outside nonprofit funds without appropriate university approval or disclosure while publishing with CSU affiliation.
   • Institutional stakes: The NIH sanctions jeopardized institutional reputation and access to critical federal research resources. CSU’s ad‑hoc committee (including union representation) recommended termination “irrespective of the content” of the research. The union declined arbitration given the due process afforded and evidence strength.
   • On this record, the panel concluded that no rational jury could reject CSU’s proof that it would have taken the same actions regardless of the paper’s viewpoint or conclusions.

Application to the Facts

The court’s reasoning turned on undisputed compliance failures rather than the paper’s content:

• Divergence from DARs: The Second DAR proposed examining mental health outcomes and diagnostic bias across ethnic groups; the Third DAR proposed a methodological evaluation of polygenic score (PGS) construction using correlational analysis. In contrast, Global Ancestry advanced causal claims about racial ancestry and intelligence based on regression analyses. Even Pesta’s own NIH correspondence acknowledged he had not yet undertaken the PGS best‑practices work that was the focus of the Third DAR.
• Unapproved sharing: Uploading thousands of individuals’ restricted genomic data to HIrisPlex‑S violated the DUC’s prohibition on sharing with any entity or individual not covered by the DAR. The panel rejected characterizing this as a mere “technical infraction.”
• Publication without approval: NIH explicitly told a collaborator he “can NOT use that particular data set” for his research; no approval followed, yet a paper was later published with Pesta listed as a co‑author.
• IRB oversight: While NIH does not require campus IRB approval for uses within an approved DUC, CSU concluded IRB was required once the use fell outside the DUC and posed potential risks (the dataset included minors), reinforcing that Pesta’s conduct bypassed necessary human‑subjects governance at the point he deviated from approved parameters.
• Conflict‑of‑interest/unauthorized funding: Pesta co‑managed a nonprofit that reimbursed expenses and purchased equipment used in his research. Even if CSU’s conflict‑of‑interest policy was not expressly cited in the committee report, the university deemed non‑disclosure and the use of outside funds while publishing with CSU affiliation to be a serious departure from accepted practice.

Impact

Although nonprecedential, the decision carries several practical and doctrinal implications:

• Academic freedom vs. compliance: The case underscores that discipline grounded in clear, documented breaches of federal data-use conditions and institutional research standards is not converted into a speech case by the controversial nature of the underlying scholarship. Where institutions act on process and compliance, not viewpoint, retaliation claims face steep hurdles.
• Lemaster’s framework applies robustly: The panel reaffirms that plaintiffs must present evidence from which a rational juror could find speech was a motivating factor. Mere procedural imperfections or post hoc inferential claims of bias typically will not suffice. And defendants who can marshal independent, weighty compliance grounds will prevail on the same‑decision defense.
• Principal Investigator responsibility: The opinion highlights PI accountability for collaborators’ access, use, and destruction of controlled data. NIH’s sanctions and university reliance on them were central to the same‑decision showing.
• IRB boundaries for secondary use: Even where an external DUC exempts IRB review for compliant use, campus IRB oversight may be triggered once a researcher strays beyond the approved scope or introduces added risk dimensions.
• Regulator findings as non‑pretextual anchors: When a federal agency imposes severe sanctions and the institution conducts an independent investigation culminating in multi‑layered internal review (committee, provost, ad‑hoc committee, union), courts are likely to view the process as non‑pretextual absent compelling contrary evidence.
• Relief limits: Requests for broad declarations about the status of a research hypothesis and academic freedom, disconnected from a live controversy or tailored remedy, risk dismissal as calls for advisory opinions.

Complex Concepts Simplified

• dbGaP, DAR, and DUC
  • dbGaP: NIH’s Database of Genotypes and Phenotypes, containing sensitive genomic and phenotypic data. Some data are “controlled-access.”
  • Data Access Request (DAR): A project‑specific application describing precisely how data will be used, by whom, and under what safeguards.
  • Data Use Certificate (DUC): A binding agreement requiring use solely as described in the DAR, prohibiting sharing outside listed personnel, mandating security controls, and requiring ongoing reporting of uses and outputs (e.g., publications).
• Polygenic Scores (PGS)
  • PGS: Summary measures derived from many genetic variants to predict traits or disease risk. Methods of construction differ, and “transethnic validity” concerns arise when applying scores across populations.
• Correlation vs. regression and causation
  • Correlation quantifies association between variables without implying causation.
  • Regression can support causal inference when assumptions hold. A DAR stating a correlational, methodological inquiry does not authorize causal claims about sensitive traits and ancestry absent explicit approval.
• Institutional Review Board (IRB)
  • IRBs oversee research ethics involving human subjects. Even in secondary data analysis, campus IRBs may require review where use departs from approved data-use terms or implicates additional risks (e.g., re-identification potential, minors).
• First Amendment retaliation causation under Lemaster
  • Motivating factor: Plaintiff must produce evidence that protected speech was a substantial or motivating factor in the adverse action.
  • Same‑decision defense: If plaintiff makes that showing, the burden shifts; defendants must prove they would have taken the same action even absent the speech.
  • No “but‑for” requirement at the motivating‑factor stage; the defense bears the burden on same‑decision.

Conclusion

The Sixth Circuit’s decision in Pesta v. Cleveland State University provides a careful application of Lemaster’s causation and burden‑shifting framework to a hotly debated academic-freedom context. The court did not decide whether the speech at issue was within Pesta’s official duties under Garcetti; it did not need to. Instead, it held that Pesta failed to produce evidence from which a rational juror could infer that his paper’s content motivated CSU’s actions, and, in any event, CSU proved that it would have investigated and terminated him for independent, serious violations of NIH data-use rules and institutional research standards.

The opinion offers practical guidance for researchers and universities: adhere meticulously to DAR/DUC terms; do not share restricted genomic data with unapproved tools or persons; ensure collaborators’ compliance and data destruction; seek IRB guidance when deviating from approved data-use; and disclose outside funding/affiliations that intersect with institutional research. For litigators, the case underscores that generalized claims of biased process are insufficient without concrete evidence tying adverse action to viewpoint; conversely, well‑documented compliance grounds and regulator sanctions can decisively establish a same‑decision defense.

While nonprecedential, the decision reinforces a workable rule of thumb in the Sixth Circuit: research‑compliance breaches, not the controversial nature of scholarship, will control the outcome of First Amendment retaliation claims where institutions can show they would have acted the same way regardless of the speech.