Louis Wozniak v. Ilesanmi Adesida ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3315
LOUIS WOZNIAK,
Plaintiff-Appellant,
v.
ILESANMI ADESIDA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 15-cv-2275 — Colin S. Bruce, Judge.
____________________
ARGUED MAY 15, 2019 — DECIDED AUGUST 6, 2019
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
EASTERBROOK, Circuit Judge. The University of Illinois
fired Louis Wozniak in 2013. Until then he had tenure on the
faculty of the College of Engineering. But after Wozniak
waged an extended campaign against students who did not
give him an award, the University’s Board of Trustees decid-
ed that he had violated the institution’s norms and rules, in-
cluding the need to treat students with respect. As he had
2 No. 18-3315
done before when the University insisted that he follow
school policies, Wozniak responded with a federal lawsuit.
He lost the last time, see Wozniak v. Conry, 236 F.3d 888 (7th
Cir. 2001), and loses this time too.
The district court’s lengthy opinion granting summary
judgment to the defendants, 368 F. Supp. 3d 1217 (C.D. Ill.
2018), sets out all the pertinent facts, and then some, so we
can be brief. Two student honor societies at the College of
Engineering jointly give an annual teaching award. In spring
2009 they presented the award to Professor Ali E. Abbas.
Wozniak thought that he should have received the award
and set out to investigate. He called the head of one honor
society to his office, aggressively interrogated her, got her to
cry, and repeated the process with one of the University’s
employees (who did not cry but was distressed). He then
posted on his website information criticizing the student
heads of the honor societies and enabling readers to deter-
mine their identities. That violated the University’s policies
as well as conditions adached to the University’s federal
grants. 20 U.S.C. §1232g(b).
The College’s Dean started tenure-revocation proceed-
ings. The University’s Commidee on Academic Freedom and
Tenure investigated, held hearings, and received submis-
sions from the Interim Chancellor and Wozniak. The Com-
midee concluded that Wozniak had engaged in several kinds
of misconduct but that loss of tenure would be an excessive
response. The University’s President presented the mader to
the Board of Trustees, which held ultimate authority. It con-
ducted its own hearing, including live testimony and cross-
examination. Disagreeing with the Commidee, the Board
thought Wozniak’s conduct a firing offense.
No. 18-3315 3
One reason for the difference in opinion is what Wozniak
did after the Commidee issued its report: he posted the en-
tire document, and all evidence the Commidee received, on
his website, revealing the identities of the students involved
and the distress they felt at Wozniak’s conduct. He included
a link to this material in the signature block of every email
he sent from his University account. Wozniak did this after
the Commidee informed him that disseminating identifying
information about the students would be grounds for dis-
missal. Told by the Dean to remove this material, Wozniak
refused. Inconsiderate and insubordinate is the most chari-
table description one can adach to this conduct.
Before the Commidee’s hearing, Wozniak had sought to
interrogate the students further about the circumstances
leading to the award. After they refused to speak with him,
Wozniak filed a civil suit in state court seeking damages
from them. He concedes that the sole reason for filing this
suit was to get a judicial order requiring the students to sit
for depositions, and that he planned to dismiss the suit as
soon as that had been done. In other words, Wozniak con-
cedes commiding a tort against the students. (The tort is
abuse of process.) In the event, the state judge dismissed the
suit as frivolous before depositions occurred.
The Board concluded that students should not be treated
as Wozniak had done and that students’ educational lives
would be beder without him on the faculty. Wozniak does
not contend that the Board’s decision violated his tenure
contract; instead he accuses the University of violating the
Constitution of the United States.
His lead argument is that the First Amendment (applied
to the states through the Fourteenth) entitles faculty mem-
4 No. 18-3315
bers to make available to the public any information they
please, no mader how embarrassing or distressful to stu-
dents. This argument, even if correct, would not carry the
day for him: he was fired for intentionally causing hurt to
students, and refusing to follow the Dean’s instructions, not
simply for publicizing the effects of his actions. What’s more,
the argument is not correct.
Wozniak acted in his capacity as a teacher. The subject of
the award was teaching; he called students into his faculty
office (a power he possessed by virtue of his job) and used
his position to inflict the injuries that precipitated his dis-
charge. Garce?i v. Ceballos, 547 U.S. 410, 421 (2006), holds that
the First Amendment does not govern how employers re-
spond to speech that is part of a public employee’s job.
Wozniak tells us that his conduct was not part of his duties,
and in a sense this is right: it did not concern how he ran his
classroom, graded exams, assisted students in conducting
experiments or writing papers, or conducted his own re-
search and scholarship. Those are core academic duties. Yet
how faculty members relate to students is part of their jobs,
which makes Ceballos applicable. See Brown v. Chicago Board
of Education, 824 F.3d 713, 715 (7th Cir. 2016). Professors who
harass and humiliate students cannot successfully teach
them, and a shell-shocked student may have difficulty learn-
ing in other professors’ classes. A university that permits
professors to degrade students and commit torts against
them cannot fulfill its educational functions.
There is another route to the same conclusion. Speech
that concerns personal job-related maders is outside the
scope of the First Amendment, even if that speech is not
among the job’s duties. See, e.g., Connick v. Myers, 461 U.S.
No. 18-3315 5
138 (1983). Whether an award by two student societies (ac-
companied by $500 and a plaque) went to Abbas or to Woz-
niak may have been important to Wozniak, but it is not a
mader of public concern. Employers can insist that such
maders of personnel administration be handled confidential-
ly, using the employer’s preferred means. See, e.g., Bivens v.
Trent, 591 F.3d 555, 560–62 (7th Cir. 2010). By humiliating
students as a mader of self-gratification and persisting in
defiance of the Dean’s instructions, Wozniak left himself
open to discipline consistent with the Constitution.
Wozniak’s second argument is that the Board violated
the Due Process Clause of the Fourteenth Amendment. Ten-
ured professors at public universities have property interests
in their jobs and are entitled to notice and an opportunity for
a hearing before they may be deprived of that interest.
Compare Board of Regents v. Roth, 408 U.S. 564 (1972), with
Perry v. Sindermann, 408 U.S. 593 (1972). But the Dean gave
Wozniak formal notice, and he then had two hearings—one
before the Commidee and one before the Board. At each he
was represented by counsel and allowed to call witnesses
and present argument. He was entitled as well to an impar-
tial decisionmaker, see Caperton v. A.T. Massey Coal Co., 556
U.S. 868 (2009); Peters v. Kiff, 407 U.S. 493 (1972), and the
University honored that entitlement: Wozniak does not con-
tend that any member of the Board was biased or otherwise
disqualified. He does complain about one member of the
Commidee, but its recommendation was favorable to him,
and it was also not the decisionmaker.
We have said enough to show that the due-process claim
must be resolved in the University’s favor. Wozniak con-
tends that the Commidee and Board did not follow all of the
6 No. 18-3315
University’s rules and regulations for tenure-revocation pro-
ceedings, but this has nothing to do with the Constitution.
The meaning of the Due Process Clause is a mader of federal
law, and a constitutional suit is not a way to enforce state
law through the back door. See, e.g., Snowden v. Hughes, 321
U.S. 1, 11 (1944); Davis v. Scherer, 468 U.S. 183, 192–96 (1984);
Archie v. Racine, 847 F.2d 1211, 1215–18 (7th Cir. 1988) (en
banc); Tucker v. Chicago, 907 F.3d 487, 494–95 (7th Cir. 2018)
(citing other decisions). (Wozniak could not use federal liti-
gation to enforce state law directly against a part of the state,
see Pennhurst State School & Hospital v. Halderman, 465 U.S.
89, 103–23 (1984).) Wozniak complains that the Board did
not permit him to call every witness he wanted to present.
But the Due Process Clause does not regulate the hearing’s
every detail. Even in federal court—indeed, even in a crimi-
nal prosecution, where procedural protections are at their
maximum—the judge may exclude proffered evidence as
irrelevant or cumulative, see Fed. R. Evid. 402, 403, or for
other reasons laid out in the Rules of Evidence.
The Board received the Commidee’s report and its
lengthy evidentiary record and heard enough additional tes-
timony to permit it to make an intelligent decision. The Con-
stitution does not require the Board to take testimony from
the Commidee’s members. (Again this is not required, in-
deed usually is not allowed, in court, where judges make de-
cisions based on administrative records without receiving
decisionmakers’ testimony. See, e.g., Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).) Likewise
it is irrelevant who prepared initial drafts of the opinions for
the Commidee or the Board. The members of the Federal
Communications Commission do not necessarily draft their
own opinions (neither do all federal judges), but this does
No. 18-3315 7
not open them to constitutional adack. The University went
well beyond the constitutional minimum.
Wozniak’s remaining arguments do not require discus-
sion.
AFFIRMED