Piggee, Martha L. v. Carl Sandburg ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3228
MARTHA LOUISE PIGGEE,
Plaintiff-Appellant,
v.
CARL SANDBURG COLLEGE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-1329—Joe Billy McDade, Judge.
____________
ARGUED FEBRUARY 9, 2006—DECIDED SEPTEMBER 19, 2006
____________
Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.
WOOD, Circuit Judge. In September 2002, Martha Louise
Piggee, who was then a part-time instructor of cosmetology
at Carl Sandburg College, gave a gay student two religious
pamphlets on the sinfulness of homosexuality. The student
was offended and complained to college officials. After the
college looked into the matter, it found that Piggee had
sexually harassed the student. It admonished her in a letter
to cease such behavior, and the following semester it chose
not to retain her. Piggee sued the college, the members of
its board of trustees, and various college administrators
(including one person who directed the mortuary science
program, whose offense was to clean out Piggee’s refrigera-
2 No. 05-3228
tor and throw away her noodles at some point during the
spring of 2003) under 42 U.S.C. § 1983. She asserted,
among other things, that the measures the college took
violated her due process rights, her rights under the Free
Exercise, Equal Protection, and Free Speech clauses of the
Constitution, and that the college’s sexual harassment
policy was constitutionally infirm. Noting that none of the
facts was seriously in dispute, the district court entered
summary judgment for the defendants. We affirm.
I
Carl Sandburg College (“the college”) is a public commu-
nity college located in downtown Galesburg, Illinois. Its
cosmetology department requires its students to under-
take a combination of classroom and clinical work in a
facility that operates as an ordinary beauty salon open
to the public. Jason Ruel was a student in the program. He
enrolled in June 2002, and Piggee was his instructor for
several classes. At some point, Ruel became aware that
Piggee was a Christian and she realized that he was gay.
On September 5, 2002, Piggee placed two pamphlets in
Ruel’s smock during clinical instruction time, as he was
preparing to leave for the day. She told him to read the
materials later and invited him to discuss them with her.
The next day, Ruel glanced at the pamphlets, both of
which used a comic-book format. The first was entitled “Sin
City.” It tells the story of a man who tries to persuade gay
pride advocates that homosexuality is an abomination. He
is beaten when he tries to stop a gay pride parade; he is
arrested by the police; a demon urges on a minister who
preaches that God loves even gay people; the man then asks
about Sodom and Gomorrah; and eventually the minister
repents his sin (which apparently is supporting gay pride).
The second pamphlet was entitled “Doom Town.” Its
message is similar. It begins by showing a group of homo-
No. 05-3228 3
sexuals headed by a speaker, who states that a certain
number of children will wind up homosexual. She threatens
that all gay males will pollute the blood supply with HIV-
positive blood unless people give more money for AIDS
research. A Christian observing this recounts the story of
Sodom and Gomorrah. One scene implies that an evil man
is about to assault a frightened boy sexually; another
indicates that some angels being sheltered by Lot are about
to be raped. God, however, intervenes, stops the mob, and
destroys the two sinful cities.
A short time later, on September 17, Ruel wrote to Barb
Kirchgessner, the director of the cosmetology program, Tim
Smith, chair of the college’s business division, and Larry
Benne, the vice president of instructional services, telling
them about Piggee’s pamphlets and stating that he “was
appalled at what [he] found inside [them].” As the district
court put it, “[h]e did not appreciate being called an abomi-
nation, a child molester, or a rapist and a deviant.” Ruel
urged the administrators to terminate Piggee’s employ-
ment.
In a follow-up letter written on September 19, Ruel
reported that Piggee had approached him and accused
him of trying to get her fired. Initially, he said that he did
not know what she was talking about, but after she de-
manded that he follow her into a back room (where she shut
the door), he conceded that he had complained, and told her
that the matter was being handled through the proper
channels. Uncomfortable with the whole conversation, Ruel
soon walked out.
Other college administrators, including Mike Walters, the
affirmative action officer, and Cheryl Cummings, the equal
employment opportunity officer, and Lori Sundberg, the
dean of human resources, promptly began investigating
Ruel’s complaint. They visited Piggee at home, where she
essentially confirmed the account Ruel had given of the
4 No. 05-3228
incident. On September 24, Benne wrote to Piggee
and another teacher, Linda Delawder, who had supported
Piggee, formally telling them that there had been a formal
complaint by a student claiming a hostile environment and
reminding them that students had a right to their beliefs.
The letter went on to say that “[t]he purpose of our program
is to provide instruction for Cosmetologist [sic] not religious,
social and sexual beliefs or provide written materials to
influence those beliefs.” It called on them to cease such
activities immediately, and warned them that further
actions “could lead to disciplinary measures up to and
including discharge.”
On October 7, Walters and Cummings wrote a memo to
Benne and Piggee, which read as follows:
It is the finding of the Affirmative Action Officer and
the Equal Employment Opportunity Officer that sexual
harassment has taken place in the case of Jason Ruel.
It has been found that because of Mr. Ruel’s sexual
orientation, Mrs. Louise Piggee has been proselytizing
in the hopes of changing Mr. Ruel’s sexual orientation
and religious beliefs.
Recommendation: The recommendation is that Mrs.
Piggee be given a warning to cease and desist all
proselytizing in the workplace to Mr. Ruel and/or to
other students. Failure to cease and desist will consti-
tute insubordination, which can result in disciplinary
action up to, and including, termination.
In a later letter to Piggee, Benne indicated that he agreed
with this recommendation.
When the time came for the college to decide whether to
offer Piggee a contract for the spring of 2003, Benne advised
Smith that this would be unwise. Smith passed this advice
along to Kirchgessner, who decided to accept it. On January
6, 2003, Piggee received a letter from Kirchgessner inform-
No. 05-3228 5
ing her that she was not needed for the spring 2003 semes-
ter. On October 9, 2003, Piggee filed this lawsuit; the
district court denied her motion for summary judgment and
granted the defendants’ motion for summary judgment on
June 27, 2005.
II
Although Piggee’s brief purports to raise 10 issues on
appeal, we see four broad arguments that we need to
address: (1) whether her speech was on a matter of public
concern; (2) whether the college’s interest in enforcing its
sexual harassment policy or controlling the cosmetology
program outweighed Piggee’s free speech interest; (3)
whether the college unlawfully imposed a prior restraint on
her speech; and (4) whether any such prior restraint was
overbroad or unconstitutionally vague. Piggee also raises
due process and equal protection claims, and the college
asserts that its administrators are entitled to qualified
immunity, should this court decide that Piggee has alleged
a constitutional violation.
Before turning to these specific arguments, we think
it important to set the stage. Apart from her due process
and equal protection arguments, Piggee’s real complaint
has to do with her ability to speak at the workplace, and in
particular her ability to discuss matters of religious concern
there. Since the oral argument in this case, the Supreme
Court has spoken to these issues, in Garcetti v. Ceballos,
126 S. Ct. 1951 (2006). We therefore begin with a look at
Ceballos, and then turn to Piggee’s arguments.
Ceballos involved a claim brought by a deputy district
attorney, Richard Ceballos, who worked for the Los Angeles
County District Attorney’s office. When a defense attorney
told Ceballos that he had found inaccuracies in an affidavit
supporting a search warrant, Ceballos looked into the
matter and concluded that defense counsel was right. He
6 No. 05-3228
communicated his concerns to his supervisors and wrote a
couple of memoranda about the problem. The supervisors
heard him out, but they decided in the end to continue with
the prosecution. As a result of this disagreement, Ceballos
claimed, he was subjected to a series of retaliatory actions,
including a reassignment, a transfer to another location,
and the denial of a promotion. He sued under 42 U.S.C.
§ 1983. The district court ruled for the county defendants,
but the Ninth Circuit reversed, holding that “Ceballos’s
allegations of wrongdoing in the memorandum constitute
protected speech under the First Amendment.” 126 S. Ct. at
1956, quoting from 361 F.3d 1168, 1173 (9th Cir. 2004). The
Supreme Court accepted the case and reversed.
The Court’s opinion reviews the line of cases dealing with
employee speech that began with Pickering v. Board of
Educ. of Township High School Dist. 205, 391 U.S. 563
(1968). It summarized those cases in the following way:
The Court’s decisions, then, have sought both to
promote the individual and societal interests that are
served when employees speak as citizens on matters
of public concern and to respect the needs of govern-
ment employers attempting to perform their important
public functions. . . . Underlying our cases has been the
premise that while the First Amendment invests public
employees with certain rights, it does not empower
them to “constitutionalize the employee grievance.”
Connick [v. Meyers], 461 U.S. [138,] at 154 [(1983)].
126 S. Ct. at 1959. Applying those principles to the facts
before it, the Court 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 communica-
tions from employer discipline.” Id. at 1960.
Application of these principles to the educational setting
requires an appreciation of the way in which teachers,
No. 05-3228 7
professors, or instructors communicate with their students.
As we have recognized in the past, academic freedom has
two aspects. We wrote in Trejo v. Shoben, 319 F.3d 878 (7th
Cir. 2003) that “the First Amendment protects the right of
faculty members to engage in academic debates, pursuits,
and inquiries” and to discuss ideas. Id. at 884. The idea of
some kind of government-sponsored orthodoxy in the
classroom is repugnant to our values. On the other hand,
we have also recognized that a university’s “ability to set a
curriculum is as much an element of academic freedom as
any scholar’s right to express a point of view.” Webb v. Bd.
of Trustees of Ball State Univ., 167 F.3d 1146, 1149 (7th
Cir. 1999). We added, in Webb, that “[u]niversities are
entitled to insist that members of the faculty (and their
administrative aides) devote their energies to promoting
goals such as research and teaching.” Id. at 1150. No college
or university is required to allow a chemistry professor to
devote extensive classroom time to the teaching of James
Joyce’s demanding novel Ulysses, nor must it permit a
professor of mathematics to fill her class hours with
instruction on the law of torts. Classroom or instructional
speech, in short, is inevitably speech that is part of the
instructor’s official duties, even though at the same time
the instructor’s freedom to express her views on the as-
signed course is protected.
The examples we have just given illustrate why it is
not very useful to focus on the fact that speech about
religion, or speech about the pros and cons of homosexual
behavior, plainly deals with a topic that richly deserves full
public discussion. So, for that matter, does tort law, or
Ulysses (which, recall, was initially banned in this country
as obscene, see United States v. One Book Entitled Ulysses
by James Joyce, 72 F.2d 705 (2d Cir. 1934)). (The way to fit
this conclusion into traditional Pickering analysis is to
say that we assume, for purposes of this discussion,
that Piggee’s proselytizing is speech that qualifies as a
8 No. 05-3228
matter of public concern; it certainly had nothing to do with
how to style hair.) The real question, however, is whether
the college had the right to insist that Piggee refrain from
engaging in that particular speech while serving as an
instructor of cosmetology.
Piggee’s first effort to convince us that the college had
no such right is to argue that the clinical beauty salon
where she approached Ruel was just a store, like any other
store. Had she come up to Ruel in a local grocery store
and slipped the pamphlets into his pocket, we would have a
different case. It is still possible that this might have raised
concerns, because the instructor/student relationship does
not end the moment the instructional period is over.
Compare Doe v. Oberweis Dairy, 456 F.3d 704, 715-16 (7th
Cir. 2006) (for purposes of Title VII sexual harassment
claim, sex act with supervisor need not have been commit-
ted in the workplace in order to have consequences there).
If we conclude that the beauty salon where Ruel was
working was part of the instructional environment, how-
ever, we need not reach the question of Piggee’s responsibil-
ities away from the college.
We have little trouble concluding that the beauty salon
was, in fact, one of the places where cosmetology instruction
was taking place. It is undisputed that students enrolled in
this program must participate in two different kinds of
instruction: classroom, and hands-on clinical work. This
type of program is exceedingly common, especially for those
learning some type of service. Law students almost univer-
sally have the opportunity to work in instructional clinics,
which typically are open to the public and offer legal
services to indigent clients; medical students begin super-
vised work with real patients in university-affiliated
hospitals and clinics while they are still in medical school,
even before they complete their formal education with a
residency. The beauty clinic operated by Carl Sandburg
College served exactly the same function: students were
No. 05-3228 9
able to learn their trade by serving customers under the
supervision of trained instructors like Piggee. Whether the
customers themselves were chatting about religion, or the
latest Chicago Cubs game, or the price of gasoline, the
college was entitled to insist on a professional relationship
between the students and the instructors.
The Supreme Court’s decision in Ceballos is not di-
rectly relevant to our problem, but it does signal the Court’s
concern that courts give appropriate weight to the public
employer’s interests. In that case, the employer had an
interest in the deputy district attorney’s recommendations
about prosecutions, in the face of a problematic search
warrant affidavit. Here, the public employer is a university,
and its interest is in the instructor’s adherence to the
subject matter of the course she has been hired to teach. We
recognized, in Pugel v. Bd. of Trustees of Univ. of Illinois,
378 F.3d 659 (7th Cir. 2004), that a university’s right to
monitor the data presented by graduate students, and its
right to take measures against false data, “has significant
ramifications on the discipline and rigor of the University’s
intellectual enterprise and, as a result, on the University’s
reputation in the broader academic and scientific commu-
nity.” Id. at 668. That interest outweighed any right the
graduate student had to present the questionable data.
Here, the college had an interest in ensuring that its
instructors stay on message while they were supervising
the beauty clinic, just as it had an interest in ensuring that
the instructors do the same while in the classroom.
Piggee’s “speech,” both verbal and through the pamphlets
she put in Ruel’s pocket, was not related to her job of
instructing students in cosmetology. Indeed, if it did
anything, it inhibited her ability to perform that job by
undermining her relationship with Ruel and other students
who disagreed with or were offended by her expressions of
her beliefs. The record reflects that her actions disrupted
Ruel’s education: he testified that he “avoided her like the
10 No. 05-3228
plague,” that he was unhappy that he still had to go to a
class that she taught, and that he felt unsafe because she
was present. Furthermore, while Ruel was the only student
who complained formally, Piggee herself testified that she
gave various religious pamphlets to other students as part
of her effort to “witness.” Out of eight student evaluations
of Piggee’s performance from the fall semester of 2001, five
spoke about Piggee’s emphasis on religion. One student
wrote “Mrs. Piggee usually inquires [sic] her religion into
everyday. Some people don’t always agree w/ what she feel.
I think that if we are taught that we are not to speak of our
religions in the salon, neither should she.” Another com-
mented “Mrs. Piggee is a great teacher, but I really do not
appreciate religion being discussed in school. I do not
believe the same way she does and don’t want to hear how
my religion is inferior to hers.” A third said “Mrs. Piggee . . .
told me that I was not saved & that I have the devil in me.
She also told me that she was going to get that devil out of
me. . . . I just wish that she will [sic] keep her religion out
of school.” This evidence shows, at a minimum, that the
college reasonably took the position that nongermane
discussions of religion and other matters had no place in
the classroom, because they could impede the school’s
educational mission.
What we have said thus far disposes of Piggee’s first two
points on appeal. We now comment briefly on the latter two:
that the college was imposing an unlawful prior restraint on
her speech and that its restraint was overbroad or vague.
The district court did not reach the merits of the prior
restraint argument. It thought that Piggee lacked standing
to ask for an injunction against the college’s actions,
because by the time she filed her complaint in October 2003
she had already been off the college’s payroll for a year.
Insofar as she was seeking prospective equitable relief, we
agree with the district court that the possibility of any
future injury was indeed too remote. See City of Los Angeles
No. 05-3228 11
v. Lyons, 461 U.S. 95, 105 (1983). Piggee responds only that
she remains on the substitute teacher list, and thus that
she could be called up any time. But she has not been
invited to teach at Carl Sandburg College since December
2002. We conclude that she cannot show that she “is
immediately in danger of sustaining some direct injury as
a result of the challenged official conduct and the injury or
threat of injury . . . is both real and immediate, not conjec-
tural or hypothetical.” Id. at 102; see also Sierakowski v.
Ryan, 223 F.3d 440, 444 (7th Cir. 2000) (finding that
plaintiff, whom doctors had tested for HIV, could not
demonstrate that he was likely to be tested without consent
in the future and therefore had no standing to request an
injunction).
It appears, however, that Piggee is also seeking compen-
satory damages from the individual college officials, acting
in their individual capacities, for the period of time between
September and December 2002. This argument implicates
the defendants’ qualified immunity argument. See Saucier
v. Katz, 533 U.S. 194 (2001). If, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts
alleged show the officer’s conduct violated a constitutional
right,” id. at 201, the court must decide “whether the right
was clearly established.” Id. The latter inquiry, the Court
emphasized, “must be undertaken in light of the specific
context of the case, not as a broad general proposition.” Id.
In United States v. National Treasury Employees Union,
513 U.S. 454 (1995), the Supreme Court held that when the
government imposes a prior restraint on employee speech,
it has a greater burden to justify its action than when it
makes an isolated employment decision. In order to support
a prior restraint, it must demonstrate that the interests of
both potential audiences and all employees (present and
future) in expression are outweighed by the restrained
expression’s “ ‘necessary impact on the actual operation’ of
the Government.” Id. at 468 (quoting Pickering, 391 U.S. at
12 No. 05-3228
571); see also Crue v. Aiken, 370 F.3d 668, 678-80 (7th Cir.
2004) (applying test). In Piggee’s case, however, it is not
clear what action of the college is the prior restraint to
which she objects. In her appellate brief, Piggee appears to
rest on the October 16, 2002, letter she received, which
directed her not to “comment or take action relative to one’s
sexual orientation or religion.” That letter purports to rely
on the college’s sexual harassment policy, but we do not
understand Piggee to be claiming that the policy itself is an
unlawful prior restraint.
For many of the reasons we explained earlier, we see no
reason why a college or university cannot direct its instruc-
tors to keep personal discussions about sexual orientation
or religion out of a cosmetology class or clinic. Only in the
most literal sense is this a “prior restraint.” We doubt
strongly that Piggee is waging an attack on all rules that
permit educational institutions to set curricula and to
establish relevant boundaries. Nor is Piggee arguing that
colleges have no right to prohibit speech that amounts to
sexual, racial, or other harassment, and if she were, we
would reject that position. Even though the sexual harass-
ment policy may not have been a perfect fit for the behavior
at issue here, the responsible college officials were not
unreasonable when they told Piggee that her actions had a
harassing effect on Ruel and that this fell within the ambit
of their anti-harassment policy. Under the facts before us
here, we conclude that the college’s policy was not an
unconstitutional prior restraint. The doctrines of vagueness
and overbreadth do not apply here, as no one was threaten-
ing to proceed criminally against Piggee.
III
Finally, we see no merit in Piggee’s due process or
equal protection arguments. She complains that she did not
have advance notice of the college’s policies prohibiting her
No. 05-3228 13
proselytizing, but she is looking at matters the wrong way.
The initial letters she received did provide her with notice.
Absolutely nothing happened to her when those letters were
sent: her salary was unchanged, her employment status
was unchanged, and nothing else adverse took place. Her
argument seems to contemplate an infinite regression of
notices, where any notice sent must have been preceded by
another notice that the second notice might come along. The
due process clause requires no such thing. Nor has she
stated an equal protection claim. She has not pointed to any
similarly situated non-Christian employee who was permit-
ted to discuss religion or homosexuality in the clinic, nor
has she suggested that only she, and not others, was held
accountable under the sexual harassment policy. To the
contrary, Linda Delawder received the same letter that
Piggee did.
We AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-19-06