Albert Burnham v. Lawrence Ianni , 119 F.3d 668 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 95-1962
___________
Albert Burnham; Ronald *
Marchese; Michael Kohn; *
Louise Kohn, *
*
Appellees, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Lawrence Ianni, in his *
official capacity as *
Chancellor of the University *
of Minnesota at Duluth and *
in his individual capacity, *
*
Appellant. *
___________
Submitted: January 14, 1997
Filed: July 11, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG,
BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges, en banc.
___________
BEAM, Circuit Judge.
In this section 1983 action, Chancellor Lawrence Ianni appeals from
the district court’s1 denial of his motion for summary judgment based on
qualified immunity. A panel of this court reversed. Our decision to grant
en banc review vacated that
1
The Honorable Michael J. Davis, United States District Court
Judge for the District of Minnesota.
decision. See Burnham v. Ianni, 98 F.3d 1007 (8th Cir. 1996). We now
affirm.
I. BACKGROUND
Because discovery has not been conducted in this case, the facts are
derived from the plaintiffs’ pleadings and the affidavits submitted by the
parties. Plaintiff Albert Burnham has been a part-time professor in the
history department at the University of Minnesota-Duluth (UMD) since 1986.
Plaintiff Ronald Marchese is a tenured professor in the University of
Minnesota system. He is a professor of humanities, classics and history
at UMD and a professor of ancient history and archaeology in the Center for
Ancient Studies at the University of Minnesota-Minneapolis. The History
Club, active for a number of years on campus, operates under the auspices
of the UMD history department. At all relevant times, Professor Burnham
was the faculty advisor to the Club.
During the fall quarter of 1991, two student members of the History
Club, plaintiffs Michael and Louise Kohn,2 conceived an idea for a project
that was intended to publicize some of the areas of expertise and interest
of the history department’s faculty, while at the same time portraying the
instructors in an informal, somewhat humorous way. The Kohns approached
Professors Burnham and Marchese as well as other members of the department,
all of whom agreed to participate. They agreed to pose for a picture with
a “prop” that related to their areas of interest. They also supplied
information about their fields of expertise, academic background, and
historical heroes, as well as a quotation to be used along with the above
information and their photographs.
2
The Kohns have now graduated from UMD.
-2-
For his photograph, Professor Burnham posed with a .45 caliber
military pistol, wearing a coonskin cap. His special interest in American
history includes military history in particular. He listed John Adams and
Davy Crockett among his historical heroes. Consistent with his
professional interests, Professor Marchese elected to hold an ancient Roman
short sword while wearing a cardboard laurel wreath. He listed his
specialties as “Ancient Greece and Rome, Homeric Literature” and identified
Homer and Alexander the Great as his historical heroes.
A total of eleven professors posed for or supplied pictures. The
Kohns assembled an exhibit that incorporated these photographs along with
the written comments submitted by each faculty member. The photographs and
the accompanying written material were thought to communicate matters of
public interest.3 The exhibit was
3
The debate over how to present history in our nation’s
schools has been a topic of public concern for some time. Indeed,
it has been the subject of numerous books, law reviews and
newspaper articles. See, e.g., Stephen E. Gottlieb, In the Name of
Patriotism: The Constitutionality of ‘Bending’ History in Public
Secondary Schools, 62 N.Y.U.L. Rev. 497 (June 1987) (compiling
authorities). In 1994, this nationwide concern resulted in the
release of a national curriculum guidebook which was widely
criticized as bowing to political correctness to the detriment of
offering students an accurate account of United States history.
See Connie Cass, History Standards Criticized as Too Politically
Correct, 1994 WL 10105333 (1994). The most widely criticized
aspect of the guidebook was its downplaying of historical heroes,
to the exclusion of persons such as Thomas Edison, Paul Revere and
Robert E. Lee. Id. Although a revised guidebook emerged in 1996,
it too caused quite a stir. See Elizabeth Martinez, A New Way of
Looking At Our U.S. Origin Myth, 1996 WL 2163654 (1996).
Regardless of the current status of a proposed national guidebook,
however, the debate over how to teach history is alive and well.
As one author recently stated:
One cannot study history without an appreciation of the
conflicts it contains both among the actors in the past
and among the historians of the present. The idea that
history can be taught as a set of names and dates or that
science can be taught as a set of formulas is as
distasteful to students as to those with any knowledge of
the disciplines. Yet, if one is to get beyond the level
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intended to be viewed by students and prospective students, as well as any
members of the public who might be on the premises. It was designed to
impart information about the professors and their attitudes toward history-
-as reflected, for example, in their choices of historical heroes.
The exhibit was put up in the history department’s display case,
located in the public corridor next to the classrooms used by the
department, on March 27, 1992. The case and its contents are seen by
students taking classes nearby, faculty members, and members of the general
public. The display case is reserved for the use of the history
department. It has contained, for a number of years, an exhibit on Roman
siege warfare equipment that was assembled by Professor Marchese. The
device has been used by members of the History Club as well as by the
history department faculty. The case is used only to communicate matters
that are considered to be of general interest. It is not used for private
communications, like a mailbox or a message system.
The exhibit was, in fact, observed by hundreds, if not thousands, of
people. Members of the department received many compliments on the
presentation, as did the students who assembled it. For two weeks, no one
expressed any criticism about the exhibit. To the contrary, the display
appeared to contribute to morale and good relations within the department.
of names and dates, one dwells in a realm of disputed
ideas.
Gottlieb, 62 N.Y.U.L. Rev. at 573 (footnote omitted).
-4-
On April 10, 1992, Judith Karon, who was then UMD’s affirmative
action officer, and UMD Police Captain Harry Michalicek came to the history
department and viewed the exhibit. This was in response to a complaint by
Charlotte Macleod, an assistant professor who was the head of the UMD
Commission on Women. Karon went to the departmental secretary, Elizabeth
Kwapick, and demanded that the pictures of Professors Burnham and Marchese
be removed. The department denied this demand.
Upon hearing of this attempt to remove the pictures, Professor
Burnham called a lawyer in the University of Minnesota’s Legal Department,
who told him that she could find nothing wrong with the display as
described. The history department agreed that the department should resist
any attempt by the administration to censor the photographs, and the
department declined to remove them.
On April 27, 1992, Karon sent a memorandum to the Dean of the College
of Liberal Arts, John Red Horse, stating that she expected the pictures to
be removed immediately because she found them to be “totally
inappropriate.” Dean Red Horse apparently refused to act on Karon’s
request. On April 30, 1992, Karon sent Professor Burnham a memorandum
explaining her reasons for wanting to remove the photographs of Professors
Burnham and Marchese. In her memorandum, Karon again stated that she
ordered the exhibit taken down because she found the photographs
“insensitive” and “inappropriate.”
On the morning of April 29, 1992, Louise Kohn, Michael Kohn,
Elizabeth Kwapick and Professor Burnham met with Chancellor Ianni to
explain the display and protest Karon’s attempted censorship of the
pictures and the students’ work. During that meeting, Ianni said that he
personally found nothing wrong with the photographs. On the afternoon of
the same day, the history department held a
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meeting on this issue, which was also attended by Ianni, Karon, and Red
Horse. During that meeting, Chancellor Ianni again stated that he
personally saw nothing wrong with the photographs, but hinted that he might
nevertheless support their removal.
When asked to explain why she wanted the photographs removed, Karon
tried to connect them to a written threat against Professor Judith
Trolander which had been found on March 16, 1992.4 Members of the
department told Karon that they thought her attempt to link the pictures
to this deranged message was absurd. Karon also stated that she considered
the photographs to constitute sexual harassment. She was unable to explain
what she meant by this. She was also unable to state by what authority she
could order the removal of a student departmental display.
On May 4, 1992, Chancellor Ianni ordered UMD Plant Services Director
Kirk Johnson to remove the pictures of Professors Burnham and Marchese.
Because Johnson was unable to obtain access to the pictures at that time,
Ianni ordered the UMD police to remove the photos. The next day, UMD
Police Captain Michalicek removed the photographs from the display. Only
the two photographs with weapons were removed. The other nine photographs
remained on display. Professors Burnham and Marchese then removed the
balance of their contributions to the exhibit.
Following the removal of the photographs, Ianni explained that he
removed them because Karon had claimed that she had received anonymous
complaints about the display which objected to the
4
Apparently, Professor Trolander had not initially been
offended in any way by the pictures; in fact, she participated in
the project by posing for a photograph and specifying her
specialties. On the day the display was put up, Trolander said
that she thought the display was “very nice.”
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depiction of faculty members with weapons. Karon also claimed that
Professor Trolander had contacted her about the display’s upsetting effect
on her. Ianni expressed his belief that the campus was enshrouded in an
atmosphere of anxiety due to the earlier threats against Trolander and
others.5 He further explained that his removal of the photographs was an
attempt to stop the disruption caused by the display and to prevent
aggravation of the atmosphere of fear. Plaintiffs dispute that any milieu
of concern existed and contend that the campus atmosphere, whatever it may
have been, was not aggravated or affected by the two photographs.
Copies of the photographs were later posted at the student center by
a group of students protesting the administration’s actions. The student
center display advanced the subject of censorship and was entitled “The
Administration Does Not Want You to See These.” The students used the
incidents surrounding the removal of the photographs as an example of
impermissible actions under the First Amendment. Apparently, no complaints
were lodged about the student center exhibit, nor was there any evidence
of an institutional breakdown upon the showing of the photographs.
Plaintiffs, alleging First Amendment violations, filed this 42 U.S.C.
§ 1983 action against Chancellor Ianni and the University of
5
The threats to others to which Ianni referred had occurred
during the previous year. In June 1991, Sandra Featherman was
appointed UMD Vice Chancellor. She later began receiving anonymous
threats warning her to stay away from Duluth, or face the
possibility of kidnapping or even death. In March 1992, Professor
Trolander became the target of similar threats. Both Featherman
and Trolander had been involved in a campus-wide campaign to
promote diversity in the UMD community. In response to these
threats, Chancellor Ianni distributed a campus memorandum dated
March 16, 1992, assuring the UMD community that the matter was
being investigated by local and federal authorities and stating
that the school was still committed to improving the conditions for
women and minorities on campus.
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Minnesota. Defendants moved for summary judgment, which the district court
granted in part and denied in part. The court dismissed, with prejudice,
all plaintiffs’ claims against the University of Minnesota, all plaintiffs’
claims for money damages against Ianni in his official capacity as
Chancellor of UMD, and the Kohns’ claims against Ianni for injunctive
relief. The district court denied summary judgment on the remaining
contentions, including the issue of qualified immunity for Chancellor
Ianni.6 The district court found that Chancellor Ianni’s actions violated
the plaintiffs’ clearly established First Amendment rights, in a way that
an objective university chancellor would have known. Burnham v. Ianni, No.
5-94-6, mem. op. at 10-11 (D. Minn. Mar. 17, 1995). Ianni appeals the
denial of summary judgment on this ground, contending that the plaintiffs’
First Amendment rights were not clearly established, thereby rendering his
actions protected by qualified immunity. We review the district court’s
conclusion on the qualified immunity issue de novo.7 White v. Holmes, 21
F.3d 277, 279 (8th Cir. 1994).
6
In their amended complaint, plaintiffs sought a declaration
that Ianni’s actions were unconstitutional, injunctive relief
against Ianni in his official capacity, and monetary relief against
Ianni in his individual capacity in the amount of at least $50,000,
plus interest. Appellant’s App. at 4 (amended complaint).
7
Because this appeal solely concerns the denial of qualified
immunity, implicating only Ianni’s liability for money damages, we
do not, of course, address plaintiffs’ claims for injunctive or
other equitable relief. We note, however, that neither the state’s
Eleventh Amendment immunity nor the doctrine of qualified immunity
would protect Ianni from injunctive or other equitable relief.
See, e.g., Treleven v. University of Minnesota, 73 F.3d 816, 819
(8th Cir. 1996) (state’s Eleventh Amendment immunity does not
shield official from prospective injunctive relief); Grantham v.
Trickey, 21 F.3d 289, 295 (8th Cir. 1994) (qualified immunity does
not shield officials from equitable relief); Rose v. Nebraska, 748
F.2d 1258, 1262 (8th Cir. 1984) (state’s Eleventh Amendment
immunity does not shield officials from declaratory or injunctive
relief).
-8-
II. DISCUSSION
Since this matter is before the court on a motion for summary
judgment based on qualified immunity, the court “ordinarily must look at
the record in the light most favorable to the party [plaintiffs/appellees]
opposing the motion, drawing all inferences most favorable to that party.”
Harlow v. Fitzgerald, 457 U.S. 800, 816 n.26 (1982). Qualified immunity
shields government officials from suit unless their conduct violates a
clearly established constitutional or statutory right of which a reasonable
person would have known. Id. at 818; Yowell v. Combs, 89 F.3d 542, 544
(8th Cir. 1996).
Chancellor Ianni’s assertion that he is protected by qualified
immunity triggers a three-pronged inquiry: (1) whether the plaintiffs have
asserted a violation of a constitutional or statutory right; (2) if so,
whether that right was clearly established at the time of the violation;
and (3) whether, given the facts most favorable to the plaintiffs, there
are no genuine issues of material fact as to whether a reasonable official
would have known that the alleged action violated that right. Yowell, 89
8
F.3d at 544. Ianni focuses on the second prong of this analysis. He
argues that the plaintiffs’ rights were not clearly established at the time
of the removal of the photographs. Whether a legally protected interest
is clearly established turns on the “objective
8
We have recently framed the inquiry in a slightly different,
but substantively similar, way by saying that “we must consider
what specific constitutional rights the defendants allegedly
violated, whether the rights were clearly established in law at the
time of the alleged violation, and whether a reasonable person in
the official’s position would have known that his conduct would
violate such rights.” Waddell v. Forney, 108 F.3d 889, 891 (8th
Cir. 1997).
-9-
legal reasonableness of an official’s acts. Where an official could be
expected to know that certain conduct would violate statutory or
constitutional rights, he should be made to hesitate.” Harlow, 457 U.S.
at 819.
Ianni bears the burden of proving that the plaintiffs’ First
Amendment rights were not clearly established. See, e.g., Siegert v.
Gilley, 500 U.S. 226, 231 (1991); Watertown Equip. Co. v. Norwest Bank
Watertown, 830 F.2d 1487, 1490 (8th Cir. 1987). In an attempt to shoulder
this burden, Ianni argues that: (1) some restrictions on speech in
nonpublic forums are constitutionally acceptable and, thus, which
restrictions are acceptable in a given situation is never “clearly
9
established;” and (2) the professors were public employees and their First
Amendment rights were subject to the fact-intensive Pickering10 balancing
test, thus, precluding the rights from being “clearly established.” These
arguments will be addressed in turn.
First, however, we note that the expressive behavior at issue here,
i.e., the posting of the photographs within the history department display,
qualifies as constitutionally protected speech. See, e.g., Spence v.
Washington, 418 U.S. 405, 410 (1974); Tinker v. Des Moines Indep. Community
Sch. Dist., 393 U.S. 503, 505-06 (1969); Tindle v. Caudell, 56 F.3d 966,
969 (8th Cir. 1995). Nonverbal conduct constitutes speech if it is
intended to convey a particularized message and the likelihood is great
that the message will be understood by those who view it, regardless of
whether it is actually understood in a particular instance in such a way.
Spence, 418 U.S. at 411. Burnham and Marchese, through their
9
The two student/plaintiffs would clearly not be covered by
this argument.
10
Pickering v. Board of Educ., 391 U.S. 563 (1968).
-10-
photographs, were attempting, at least in part, to convey and advocate
their scholarly and professorial interests in military history and in
military weaponry’s part in their vocation. Michael and Louise Kohn, as
well, were attempting to show their creativeness and interest in the scope
of the teaching mission of the history department. The display was the
Kohns’ idea; they organized and exhibited it. Because these messages
sufficiently satisfy the Spence test, the photographs and the display
qualify as speech. Id. And, we do not understand that Ianni disputes this
conclusion.
Although the right of free speech is not absolute, the First
Amendment generally prevents the government from proscribing speech of any
kind simply because of disapproval of the ideas expressed. R.A.V. v. City
of St. Paul, 505 U.S. 377, 382 (1992). Indeed, with a few exceptions, most
speech receives First Amendment protection. Cohen v. California, 403 U.S.
15, 24 (1971); see, e.g., New York v. Ferber, 458 U.S. 747, 756 (1982)
(child pornography is unprotected speech); Miller v. California, 413 U.S.
15, 23 (1973) (obscene speech is unprotected speech); Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942) (fighting words are unprotected
speech). The First Amendment’s protection even extends to indecent speech.
Sable Communications v. Federal Communications Comm’n, 492 U.S. 115, 126
(1989). It also extends to speech unprotected on one basis (e.g.,
obscenity) but protected on another (e.g., content in opposition to
governmental acts). R.A.V., 505 U.S. at 384-86. Clearly then, plaintiffs’
speech is worthy of constitutional protection.
Because this case involves Ianni’s suppression of plaintiffs’
protected speech, plaintiffs have (at least for purposes of summary
adjudication) sufficiently established a violation of a constitutional
right--unless limitations indigenous to the forum
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lawfully permit restrictions on plaintiffs’ First Amendment privileges.
We turn to that inquiry.
A. The Forum
Access to and the character of speech on government-controlled areas
may be limited depending upon the type of property at issue. Courts
recognize three categories of property on which the government may, in
greatly varying degrees, restrict speech: (1) public forums, places which
by tradition have been devoted to assembly or debate; (2) limited public
forums,11 properties which the state has opened for use by the public as
places for expressive activity; and (3) nonpublic forums, places which are
not by tradition or designation forums for public communication. Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983).
In public forums, the state’s right to limit expression is “sharply
circumscribed.” Id. at 45. In limited public and nonpublic forums,
however, the state’s right to regulate speech is more pervasive.
Ianni argues, and the district court found, that the history
department display case is a nonpublic forum. Ianni further claims that
because the expression occurred in a nonpublic forum, speech restrictions
were permissible or, at least, the extent of any permissible restriction
was unclear. Thus, Ianni states,
11
We recognize that both the terms “limited public forum” and
“designated public forum” are used to describe this second category
of property. See, e.g., International Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 686 (1992) (using terms
interchangeably); see also Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983); Capitol Square Review &
Advisory Bd. v. Pinette, 115 S. Ct. 2440, 2469 (1995). For
purposes of our discussion, we will use the term “limited public
forum.”
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plaintiffs’ First Amendment rights were extinguished, limited or at a
minimum, not clearly established. Therefore, Ianni says, the district
court’s denial of qualified immunity was error. We disagree.
In this case the nature of the forum makes little difference.12 Even
if the display case was a nonpublic forum, Ianni is not entitled to
qualified immunity. The Supreme Court has declared that “the State may
reserve [a nonpublic] forum for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable and not an
effort to suppress expression merely because public officials oppose the
speaker’s view.” Perry, 460 U.S. at 46; see also Lamb’s Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (stating control
over access to nonpublic forum can be based on subject matter and speaker
identity so long as the distinctions drawn are reasonable in light of the
purpose served by the forum and are viewpoint neutral); United States v.
Kokinda, 497 U.S. 720, 732 (1990) (stating constitutionality of regulation
must be considered in light of the nature and function of the forum
involved). Here, we
12
We do note, however, that the display case could well be a
limited public forum. See Perry, 460 U.S. at 48; Forbes v.
Arkansas Educ. Television Comm’n, 93 F.3d 497, 500 (8th Cir. 1996),
cert. granted, 117 S. Ct. 1243 (1997). The case, as earlier noted,
was located in the hall outside the history department’s classrooms
and was intended for public viewing. UMD had designated it as a
forum for use by the history department. In turn, the history
department allowed its faculty and students access to the case--to
communicate information about the history department to students,
prospective students, faculty and the public on an ongoing basis.
If the display case were considered a limited public forum, the
content-based suppression at work here would have to have served a
compelling state interest and would have to have been narrowly
drawn to serve that interest in order to be upheld. Widmar v.
Vincent, 454 U.S. 263, 270 (1981). However, because we find that
the suppression here fails even the most lenient forum test, we
need not address this issue.
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find that the suppression was unreasonable both in light of the purpose
served by the forum and because of its viewpoint-based discrimination.
The display case was designated for precisely the type of activity
for which the Kohns and Professors Burnham and Marchese were using it. It
was intended to inform students, faculty and community members of events
in and interests of the history department. The University was not
obligated to create the display case, nor did it have to open the case for
use by history department faculty and students. However, once it chose to
open the case, it was prevented from unreasonably distinguishing among the
types of speech it would allow within the forum. See, e.g., Lamb’s Chapel,
508 U.S. at 392-93; Widmar v. Vincent, 454 U.S. 263, 267 (1981). Since the
purpose of the case was the dissemination of information about the history
department, the suppression of exactly that type of information was simply
not reasonable.
We recognize that UMD “may legally preserve the property under its
control for the use to which it is dedicated.” Lamb’s Chapel, 508 U.S. at
390. However, as the Supreme Court has stated:
“[A]lthough a speaker may be excluded from a nonpublic forum if
he wishes to address a topic not encompassed within the purpose
of the forum . . . or if he is not a member of the class of
speakers for whose especial benefit the forum was created . .
. , the government violates the First Amendment when it denies
access to a speaker solely to suppress the point of view he
espouses on an otherwise includible subject.”
Id. at 394 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,
473 U.S. 788, 806 (1985)).
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The suppression of this particular speech was also viewpoint-based
discrimination. As the Supreme Court has noted, in determining whether the
government may legitimately exclude a class of speech to preserve the
limits of a forum,
we have observed a distinction between, on the one hand,
content discrimination, which may be permissible if it
preserves the purposes of that limited forum, and, on the other
hand, viewpoint discrimination, which is presumed impermissible
when directed against speech otherwise within the forum’s
limitations.
Rosenberger v. Rector and Visitors, 115 S. Ct. 2510, 2517 (1995) (citing
Perry, 460 U.S. at 46). As Rosenberger illustrates, what occurred here was
impermissible. The photographs of Professors Burnham and Marchese
expressed the plaintiffs’ view that the study of history necessarily
involves a study of military history, including the use of military
weapons. Because other persons on the UMD campus objected to this
viewpoint, or, at least, to allowing this viewpoint to be expressed in this
particular way, Ianni suppressed the speech to placate the complainants.13
To put it simply, the photographs were removed because a handful of
individuals apparently objected to the plaintiffs’ views on the
13
Although difficult to tell from the record, the objections
of Karon, Macleod and Ianni may have been substantially directed
toward the display of the weapons on the campus and, perhaps, not
simply toward history department curriculum or Burnham’s and
Marchese’s teaching methodology. Suppression on these more limited
grounds, however, would be unconstitutional in light of the
purposes served by the display case, as discussed above.
Additionally, we do not discern how generalized concerns over the
display of weapons in any way advance Ianni’s rights of suppression
or attenuate Burnham and Marchese’s free speech privileges in this
case. The fact that the professors’ history-based message happened
to fall victim to Ianni’s parochial point of view on exhibiting
weapons makes the censorship no less pernicious and no more
acceptable, especially given the fact that the purpose of the
display was carefully explained to Ianni in advance of his action.
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possession and the use of military-type weapons and especially to their
exhibition on campus even in an historical context. Freedom of expression,
even in a nonpublic forum, may be regulated only for a constitutionally
valid reason; there was no such reason in this case.14
B. Reasonable Public Official
Ianni further claims that at the time the photographs were
suppressed, a reasonably objective chancellor of a large public university
would not have known that the conduct violated the plaintiffs’
15
constitutional rights. We again disagree.
As a basic matter, the Supreme Court stated in 1969 “[i]t can hardly
be argued that either students or teachers shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate.” Tinker, 393
U.S. at 506. Indeed, a year earlier, the idea that a faculty member could
be compelled to relinquish First Amendment rights in connection with
employment at a public school was “unequivocally rejected” by the Supreme
Court. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
14
We by no means hold that government has no control over
speech in the workplace or the schoolhouse. We envision many
instances when speech, or proposed speech, is beyond the “speaker
identity” or “content” designation of the forum and in such
instances the speech may be regulated. See Lamb’s Chapel, 508 U.S.
at 394; Rosenberger, 115 S. Ct. at 2517. This is not such a case,
however.
15
In this regard, we note that Chancellor Ianni himself stated,
at a meeting with the history faculty, that if the plaintiffs
brought a lawsuit alleging a violation of their First Amendment
rights, “they might have a good case.”
-16-
Applying these long established tenets to this case, we note that our
earlier quotation from Rosenberger, 115 S. Ct. at 2517, links its
observations on viewpoint discrimination within a nonpublic forum to Perry,
460 U.S. at 46, a teacher speech case decided by the Supreme Court in 1983.
Similarly, the language proscribing viewpoint discrimination found in
Lamb’s Chapel, 508 U.S. at 394, quotes directly from Cornelius, 473 U.S.
at 806, a 1985 decision. In addition, Widmar’s holding prohibiting
unreasonable discrimination among “types of expression” within a specific
forum, clearly made in the context of an analysis of the purpose of the
particular forum, was available as early as 1981. Widmar, 454 U.S. at 265-
67, 277.
Judge Heaney, writing for a panel of this court, recently noted that
once a controlling opinion has been decided, a constitutional right has
been clearly established.16 See Waddell v. Forney, 108 F.3d 889, 893 (8th
Cir. 1997). And, admittedly, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). But, as noted by Judge McMillian in his opinion for the court in
Hayes v. Long, 72 F.3d 70, 73 (8th Cir. 1995), “[t]his court has taken a
broad view of what constitutes ‘clearly established law’ for the purposes
of a qualified immunity inquiry.” More particularly, he stated, with
regard to “clearly established” law, that:
16
Some circuits have been slightly more charitable on this
timing issue. In Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994),
the Sixth Circuit stated: “[S]tate officials must have some time
to adjust to and learn about judge-made law as it evolves . . . .
This [the Sixth] and other circuits have struggled to decide how
long after a decision state officials have to become familiar with
‘the law.’” Id. at 306. Lintz then cited an extensive list of
cases allowing from twelve days to five months.
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“In order to determine whether a right is clearly established,
it is not necessary that the Supreme Court has directly
addressed the issue, nor does the precise action or omission in
question need to have been held unlawful. In the absence of
binding precedent, a court should look to all available
decisional law including decisions of state courts, other
circuits and district courts. . . .”
Id. at 73-74 (quoting Norfleet v. Arkansas Dep’t of Human Servs., 989 F.2d
289, 291 (8th Cir. 1993)).
Here, of course, we have long established, binding precedent totally
supportive of plaintiffs’ claims. The Supreme Court and this court have
both clearly and directly spoken on the subject on numerous occasions and
in years long prior to the 1992 censorship by Ianni. Accordingly,
Chancellor Ianni’s “not clearly established” claim must be rejected.17
C. Pickering Balancing Argument
Finally, Chancellor Ianni seizes upon the two incidents involving
threats to Ms. Featherman and Ms. Trolander in an attempt to interject
First Amendment precedent not applicable to this dispute. We reject this
endeavor.
Ianni contends that the plaintiffs’ rights to express this particular
speech must additionally be balanced against UMD’s right to suppress it in
the name of workplace efficiency and harmony. He
17
The record establishes, as noted, that the history department
contacted the law department of the University for an opinion on
the propriety of the display. One may only presume that Chancellor
Ianni had equal or superior resources at his disposal if he had
questions about the contours of these well-defined constitutional
rights.
-18-
urges this court to invoke a line of employee discipline and termination
cases to summarily dispose of any violation of constitutional rights. See,
e.g., Pickering, 391 U.S. 563 (teacher discharged for writing letter to
newspaper criticizing school board and school superintendent); Connick v.
Myers, 461 U.S. 138 (1983) (assistant district attorney discharged for
distributing questionnaire concerning office morale, policy and confidence
in supervisors). We decline to do so here.
The Supreme Court, in Pickering, held that in an employee discipline
case, a court must determine whether the employee’s speech was on matter
of public concern, and if so, whether the employee’s interest in that
speech is outweighed by the governmental employer’s interest in promoting
the efficiency and effectiveness of the services it performs. Pickering,
391 U.S. at 568. In conjunction with his argument in favor of this
balancing requirement, Ianni also advances the theory that government
employers must always be granted qualified immunity under such
circumstances. We not only find that the Pickering balancing test is
inapposite under these facts, but we also disagree with Ianni’s analysis
of qualified immunity law.
The Pickering standard applies to determinations of whether a public
employer has properly discharged or disciplined an employee for engaging
in speech. Waters v. Churchill, 511 U.S. 661, 668 (1994); Rankin v.
McPherson, 483 U.S. 378, 384 (1987); Kincade v. City of Blue Springs, 64
F.3d 389, 395 (8th Cir. 1995), cert. denied, 116 S. Ct. 1565 (1996). In
this case, it is argued that there is no adverse employment action (unless
the censorship itself
-19-
serves that purpose), against which the plaintiffs’ free speech rights
might be balanced.18 Indeed, the district court found:
The gravamen of the complaint is not whether the photographs
were the basis for adverse employment action; rather, the
gravamen of the complaint is whether the ideas conveyed in the
photographs fall within any of the exceptions to the general
rule “that under our Constitution, the public expression of
ideas may not be prohibited merely because the ideas are
themselves offensive to some of the hearers.”
Burnham, mem. op. at 10 (quoting Street v. New York, 394 U.S. 576, 592
(1969)).
We need not decide whether an adverse employment action can be
fashioned from the evidence, however, because Ianni has factually failed
to put the Pickering balancing test in play. See, e.g., Kincade, 64 F.3d
at 398. As this court recently observed, “it is critical to determine
whether the defendants [employers] have put the Pickering balancing test
at issue by producing evidence that the speech activity had an adverse
effect on the efficiency of the . . . employer’s operations.” Grantham v.
Trickey, 21 F.3d 289, 294 (8th Cir. 1994). As the district court found,
“[t]his is not an employment case where there is a threatened disruption
to the efficient delivery of services.” Burnham, mem. op. at 9; see also
Pickering, 391 U.S. at 570 (noting
18
The speech at issue in Pickering and Connick was directly
critical of the efficiency and operations of the employers’
businesses. Here the speech essentially supported University
operations and extolled the capabilities and interests of certain
faculty members. Moreover, the photographs of Burnham and Marchese
were not presumptively divisive, even in the ambiance of the
threats on campus, nor were they shown to have been a palpable
threat to workplace morale, efficiency or harmony. Compare Tindle,
56 F.3d at 969 (police officer suspended for attending Fraternal
Order of Police party wearing blackened face, bib overalls, black
curly wig and carrying watermelon).
-20-
that “no evidence to support [professional damage to the school board and
superintendent] was introduced at the hearing” and rejecting the workplace
disruption argument of the board.)
As in our Kincade decision, we find that Ianni has failed to carry
his burden on this prong of the Pickering rationale. Ianni has made no
factual showing that the suppressed conduct “substantially” interfered
with the efficiency of the workplace or UMD’s educational mission.
Kincade, 64 F.3d at 398. “In our system, undifferentiated fear or
apprehension of disturbance is not enough to overcome the right to freedom
of expression." Tinker, 393 U.S. at 508. It is simply unreasonable, as
a matter of law, to assert that a photograph of a cardboard laurel-wreath
bedecked faculty member holding a Roman short sword, as part of an eleven-
person faculty display, somehow exacerbated an unestablished ambiance of
fear on the UMD campus.
And, even if the Pickering balancing test were somehow applicable,
which it is not, Ianni’s defense would fail. As stated earlier, the
Pickering balancing test requires a court to determine whether the
employee’s speech involves a matter of public concern and, if so, how the
employee’s rights in the speech balance against the occurrence of workplace
disruption. Both of these questions are issues of law for the court to
decide. Kincade, 64 F.3d at 395.
To determine whether the speech at issue here involves a matter of
public concern, we examine the “content, form and context” of the speech,
given the record as a whole. Connick, 461 U.S. at 147-48. To be
considered speech on a matter of public concern, the discourse must relate
to a “matter of political, social, or other concern to the community.” Id.
at 146; see also Kincade, 64 F.3d at 396. That definition includes many
types of
-21-
speech, excluding mainly speech relating merely to internal office
grievances. Connick, 461 U.S. at 148-49; see also Cox v. Dardanelle Pub.
Sch. Dist., 790 F.2d 668, 672 (8th Cir. 1986).
The history exhibit, displayed for public viewing, was intended, at
least, to inform the University and surrounding community of the views and
specialties of the history department and its faculty. As such, the speech
involved more than a mere internal office grievance. See, e.g., Cox, 790
F.2d at 673 (stating “educational theories and practices employed by school
administrators is clearly a question of public concern . . . [h]ow we teach
the young, what we teach them, and the environment in which we teach them
are of the most central concern to every community in the nation”). See
also Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 314 (8th Cir. 1986)
(holding speech involving proposed transfer of teacher was on matter of
public concern due to large turnout at meeting regarding transfer and
teacher interest in the subject); Roberts v. Van Buren Pub. Schs., 773 F.2d
949, 955 (8th Cir. 1985) (holding speech involving content of rules
governing fifth grade field trip was on matter of public concern due to
parental dissatisfaction with and interest in the subject).
Admittedly, the speech at issue here is not of the utmost public concern
when compared with an assassination attempt against the President, as in
Rankin. 483 U.S. at 381. However, when balancing an employee’s interest
against an employer’s interest, the constitutional standard takes
proportionality into account. “[T]he closer the employee’s speech reflects
on matters of public concern, the greater must be the employer’s showing
that the speech is likely to be disruptive before it may be punished.”
Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.), cert. denied, 116 S. Ct.
173 (1995). The converse is also true. When weighed against the meager
evidence of workplace disruption, the plaintiffs’ speech
-22-
clearly addresses matters of public concern within the meaning of the
Pickering test. See supra n.3.
Our next consideration is whether UMD’s interest in suppressing the
speech, to purportedly control workplace disruption, outweighs the
plaintiffs’ First Amendment rights in the display. See, e.g., Barnard v.
Jackson County, Missouri, 43 F.3d 1218, 1224 (8th Cir.) (stating pertinent
considerations for Pickering balancing test are “whether the employee’s
speech has a detrimental impact on working relationships where personal
loyalty or confidence is necessary, and whether the speech impedes the
efficient operation of the governmental entity’s function”), cert. denied,
116 S. Ct. 53 (1995). The government employer must make a substantial
showing that the speech is, in fact, disruptive before the speech may be
punished. Waters, 511 U.S. at 673. We recognize that the government, as
an employer, has broader powers in suppressing free speech than the
government as a sovereign. Indeed, we have given some deference to an
employer’s predictions of workplace disruption. Id. However, we have
never granted any deference to a government supervisor’s bald assertions
of harm based on conclusory hearsay and rank speculation. As stated
above, the procedural posture of this case requires us to view the facts
in the light most favorable to the nonmoving party, i.e., the plaintiffs.
In so doing, we note that both Burnham and Marchese, by affidavit,
expressly dispute that a “climate of fear and violence” existed on the
campus, stating that campus life continued as normal, no classes were
suspended or schedules altered and not a single act of violence occurred
on UMD premises.
Even if we were to attempt to balance the plaintiffs’ free speech
rights against the purported disruption of the pedagogical tasks of UMD,
it is clear that the impact of the speech on UMD’s mission is totally
unproven and unaddressed except in the most
-23-
conclusory fashion. There is simply no evidence that establishes a nexus
between the two photographs and an exacerbated climate of fear on the
campus or, more importantly, that establishes a relationship between the
photographs and a decrease in the efficiency and effectiveness of UMD’s
educational mission.
In sum, then, upholding Ianni’s approach to the First Amendment would
permit the suppression of too much speech on arbitrary and capricious
grounds. Such a holding would presumably permit the suppression of Ms.
Featherman’s advocacy of gender and cultural diversity at UMD if Ianni felt
that such speech contributed to an inefficient and negative working and
learning environment on the campus because of unlawful or vehement
19
opposition to Featherman’s views. “Vigilance is necessary to ensure that
public employers do not use authority over employees to silence discourse,
not because it hampers public functions but simply because superiors
disagree with the content of employees’ speech.” Rankin, 483 U.S. at 384.
Finally, we hold that Ianni’s failure to establish workplace
disruption or, at least, to make a connection between the plaintiffs’
speech and the workplace atmosphere, is fatal to his claim of qualified
immunity under a Pickering analysis. Kincade is both directly on point and
directly contradictory to Ianni’s position. Kincade was discharged by Blue
Springs for exercising
19
Underlying our holding today, in some respect, is the
recognition of the professors’ academic freedom--“a special concern
of the First Amendment.” University of California Regents v.
Bakke, 438 U.S. 265, 312 (1978). The content-based censorship
which occurred here could easily have a stifling effect on the
“‘free play of the spirit which all teachers ought especially to
cultivate and practice.’” Keyishian v. Board of Regents, 385 U.S.
589, 601 (1967) (quoting Baggett v. Bullitt, 377 U.S. 360, 374
(1964)).
-24-
his free speech rights. Because Kincade’s speech, as here, touched on a
matter of public concern, the Pickering balancing test was employed to
review the district court’s denial of a motion for summary judgment on
qualified immunity grounds. After noting that the only evidence of
workplace disruption was conclusory statements to that effect by the mayor
and other city officials, Judge Hansen stated:
the Appellants [city officials] have merely asserted that
Kincade’s speech adversely affected the efficiency of the
City’s operations and substantially disrupted the work
environment without presenting any specific evidence to support
this assertion. They therefore have not put the Pickering
balancing test at issue, and accordingly, we reject their claim
that they are entitled to qualified immunity because free
speech questions for public employees, as a matter of law,
cannot be “clearly established.”
Kincade, 64 F.3d at 398-99. This is precisely the factual and legal
situation we have in this case.
III. CONCLUSION
The district court correctly found that Ianni is not entitled to
qualified immunity from a suit seeking money damages for the violation of
plaintiffs’ First Amendment rights. Accordingly, we affirm.
-25-
McMILLIAN, Circuit Judge, with whom JOHN R. GIBSON, Circuit Judge, joins,
dissenting.
We respectfully dissent. In our original panel opinion, Burnham v.
Ianni, 98 F.3d 1007 (8th Cir.), vacated, 98 F.3d 1028 (1996), we fully set
forth our analysis of this case. We therefore rest upon our original panel
opinion as providing the reasons why we believe Ianni should be afforded
qualified immunity in the present case. The following is a response to the
majority opinion.
I.
We begin by noting the conspicuous absence from the majority opinion
of certain undisputed material facts concerning the circumstances in which
this controversy arose -- facts which the majority has all but ignored by
reducing them to a few obtuse sentences and a footnote. See supra at 6,
7 & n.5. By contrast, the district court appropriately devoted four full
paragraphs at the outset of its opinion to these crucial facts aptly
described by the district court as the "milieu" of the case. Burnham v.
Ianni, 899 F. Supp. at 397. As the district court explained:
In June 1991, Sandra Featherman was appointed to the post
of vice chancellor for [UMD]. Shortly after her appointment
was announced, Featherman began receiving threats. The threats
were bizarre, graphic and frightening:
The dogs are howling, they want blood. There are
footsteps crunching on the forest floor--it's the deer
hunters coming. They're after blood, too. It's the same
dream over and over. The deer hunters stalking--getting
closer and closer, never giving up the hunt, never
putting down their rifles. Overwhelmed by their desire
to kill.
. . . .
-26-
Federman (sic) no Duluth stay away, we will kidnap you,
the FBI can't protect you.
The deer hunters.
At the same time that Featherman was being threatened,
forged memoranda bearing the defendant's name, were circulated
in and about the campus. The memoranda referred to an alleged
plot to kidnap Featherman and used the terms "Prince of Death"
and "Deer Hunters." The forged document was circulated through
the mail to various departments and left in hallways of various
campus buildings.
Beginning in March 1992, history Professor Judith
Trolander became the target of threats. The caption on the
flyers left in the hallways of various University buildings
was: "The Imperial Council of Deer Hunters Proclaim Open Season
on Judy Trolander Lesbian Feminist Bitch." The memorandum
purported to reveal Professor Trolander's home address,
addressed questions concerning the appropriate weapons and
provided the reader with potential locations from which to
carry out an attack. Finally, the flyer proclaimed: "Get
cracking you kill crazy buckaroos. Its [sic] OK to kill her,
the Imperial Council rules UMD, the Commission on Women is
dissolved." The flyer specifically addressed Professor
Trolander, but its threat was targeted to all faculty members
who cooperated with Vice Chancellor Ianni's efforts to develop
a diversity program: "[a]ll faculty would be sentenced to death
along with their pets, children and spouses."
Defendant undertook to calm the concerns of the faculty
regarding these incidents. Despite his distribution of a
memorandum in which he addressed the seriousness with which he
was taking the threats and in which he reiterated his
commitment to the diversity program, the fears of many in the
campus were not alleviated. The investigation of the origin of
the threats continued and the threats continued to hang over
the campus. It is this background against which the substance
of this litigation arose.
Id.
-27-
Not only do we find it necessary to supply these critical facts, we
also caution that there is no legal basis to assume as true facts "derived
from the plaintiffs' pleadings" merely "[b]ecause discovery has not been
conducted in this case." Supra at 2. In ruling on a motion for summary
judgment, the question before the district court, and this court on appeal,
is whether the record, when viewed in the light most favorable to the
non-moving party, shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992);
St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).
Where discovery has not been conducted, the record created by the parties
pursuant to Fed. R. Civ. P. 56 might not include the usual panoply of
discovered documents and deposition transcripts, but will include any
affidavits or other documents properly submitted in accordance with Fed.
R. Civ. P. 56(e). If, upon reviewing the record in the light most
favorable to the non-moving party, some material facts asserted in the non-
moving party's pleadings remain genuinely disputed, there is no legal basis
to assume such facts as true merely because discovery has not been
conducted. In the present case, for example, the majority opinion states
"[p]laintiffs dispute that any milieu of concern existed and contend that
the campus atmosphere, whatever it may have been, was not aggravated or
affected by the two photographs." Supra at 7 (emphasis added). The
majority supplements the above-underscored statement by later noting that
"both Burnham and Marchese, by affidavit, expressly dispute that a 'climate
of fear and violence' existed on the campus, stating that campus life
continued as normal, no classes were suspended or schedules altered and not
a single act of violence occurred on the UMD premises." Id. at 23
(emphasis
-28-
added). Presumably, the majority's assumptions that no milieu of concern
existed at the time the photographs were removed, and that campus life
continued as normal, have formed the basis for the majority's decision to
virtually ignore the facts set forth above. However, according to
undisputed evidence in the record, less than two months before the
photographs were removed, anonymously-written flyers were left in hallways
of various UMD buildings on campus, and those flyers stated the following:
She [Professor Trolander] will be a good target for shooting at
long range. The house has large windows and the terrain is
clear of obstacles in all directions. Shooting from the beach
or even from a boat in the bay or lake Superior is feasible.
A 30-60 rifle with 20X2 Bushnell scope would be a suitable
weapon with dum-dum bullets dipped in poison. Don't forget to
put in a couple of clicks in the crosshairs for windage as the
wind is usually strong there. It is recommended that the
hunter shoot from behind the Surf and Sand Health Center, if
there is return fire from the house it will only kill a few old
people. She is the only occupant of the house, so it is OK to
shoot silhouettes on drawn shades.
Get cracking you kill crazy buckaroos. Its OK to kill her, the
Imperial Counsel rules UMD, the commission on women is
dissolved.
Also, all faculty members ordered to participate in
Featherman's administrative development project will be
sentenced to death along with their pets, children, and spouses
if they comply with these orders. Any one who cooperates with
Featherman will have their target information published.
The deer hunters need target information on Featherman, just
mention where she lives in the faculty club and everything will
be taken care of.
Appellant's Appendix at 38. We certainly agree with the majority's
description of the above-quoted death threat as "deranged." Supra at 6.
However, viewing the record in the light most favorable to plaintiffs and
applying the Rule 56 standard, we would also find
-29-
plaintiffs' description of campus life as "normal" to be patently
inaccurate. Even the district court stated, consistent with the Rule 56
standard, that, despite Ianni's efforts to assuage concerns on campus, "the
fears of many in the campus community were not alleviated. The
investigation of the origin of the threats continued and the threats
continued to hang over the campus." 899 F. Supp. at 397. As the district
court concluded, "[i]t is this background against which the substance of
this litigation arose." Id.
II.
We now turn to the legal issues presented by this case, beginning
with a reminder of the principles that underlie the doctrine of qualified
immunity. In Anderson v. Creighton, 483 U.S. at 638 (citations omitted),
the Supreme Court explained:
When government officials abuse their offices, "action[s] for
damages may offer the only realistic avenue for vindication of
constitutional guarantees.” On the other hand, permitting
damages suits against government officials can entail
substantial social costs, including the risk that fear of
personal monetary liability and harassing litigation will
unduly inhibit officials in the discharge of their duties. Our
cases have accommodated these conflicting concerns by generally
providing government officials performing discretionary
functions with a qualified immunity, shielding them from civil
damages liability as long as their actions could reasonably
have been thought consistent with the rights they are alleged
to have violated.
The Court then went on to explain:
Somewhat more concretely, whether an official protected
by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the
"objective legal reasonableness"
-30-
of the action, assessed in light of the legal rules that were
"clearly established" at the time it was taken.
Id. at 639 (citations omitted). In Anderson v. Creighton, the Supreme
Court also addressed the degree of generality versus specificity with which
the relevant legal rule is to be defined for purposes of determining
whether the law was "clearly established" at the time of the relevant
events. Id. The Court explained that, in order for the concept of a
"clearly established" law to comport with the "objective legal
reasonableness" standard set forth in Harlow v. Fitzgerald, 457 U.S. at
819, "the contours of the right must be sufficiently clear that a
reasonable official would understand that what he [or she] is doing
violates that right." Anderson v. Creighton, 483 U.S. at 640. "This is
not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful . . .
but it is to say that in the light of pre-existing law the unlawfulness
must be apparent." Id. (citations omitted).
We believe, in the present case, that it could not have been apparent
to Ianni that the actions he took were unlawful in light of the pre-
existing law. Indeed, "the parameters of the protection afforded to a
university professor's academic speech were not clearly defined in May 1992
and are not clearly defined today." Scallet v. Rosenblum, No. 96-1138,
1997 WL 33077, at *2 (4th Cir. Jan. 29, 1997) (unpublished) (per curiam)
(Scallet) (disposition reported in table at 106 F.3d 391), cert. denied,
No. 96-1725 (U.S. June 23, 1997).
As we explained in our original panel opinion, the issue of whether
the removal of the two photographs violated Burnham's and Marchese's First
Amendment right to engage in nonverbal expressive behavior is governed by
the Pickering-Connick-Waters line of
-31-
Supreme Court cases dealing with the First Amendment rights of public
employees. The mere fact that the circumstances of this case are unique
(at least in terms of the controversies that have actually been litigated
in federal court) makes this no less an employment-related case. Thus, the
pertinent case law in existence at the time Ianni removed the photographs
from the display case included the Supreme Court's decisions in Connick and
Pickering, as well as a body of lower federal court decisions which had
applied Connick and Pickering -- none of which were factually similar to
the present case.
Contrary to the majority's assertion, Kincade is not "directly on
point and directly contradictory to Ianni's position." Supra at 25.
Kincade is distinguishable because, in that case, this court held that the
Pickering balancing test had not been put at issue. This court reasoned
that the defendants, city officials, "ha[d] merely asserted that Kincade's
speech adversely affected the efficiency of the City's operations and
substantially disrupted the work environment without presenting any
specific evidence to support this assertion." Kincade, 64 F.3d at 398
(emphasis added) (cited supra at 25). By contrast, in the present case,
Ianni presented specific evidence showing that the photographs were already
having a disruptive effect on the work environment and that their continued
display in the history department display case had the potential to further
disrupt the work environment. Before Ianni ever made the decision to have
the photographs removed, meetings were held, involving Karon, Ianni, the
Kohns, Burnham, Marchese, and other faculty members in the history
department, at which the fate of the two photographs was specifically
addressed. It is clear from the record that feelings were strong on both
sides: some individuals felt that the display of photographs of professors
holding weapons was inappropriate in light of the campus-wide death threats
against Trolander and others; others felt
-32-
adamantly opposed to removing the photographs for that reason. See
Appellant's Appendix at 50 (internal history department memorandum:
"[s]omehow, this ugly trend of History governance by external
administrators and bureaucrats must be called into account; if the photo
display is our line in the sand, so be it"). With respect to one of the
meetings, Karon stated:
Chancellor Larry Ianni and I [Karon] met with the history
department faculty on one occasion during the first few days of
May. Department members offered a variety of reasons for not
wanting to take the photos down. Some said the request was an
undue interference with the department, or an attempt to blame
the department for the threats. Others said it was Judy
Trolander's fault. Professor Trolander expressed her concern
that no one knew how upsetting the photos were to her.
Appellant's Appendix at 12 (Affidavit of Judith Karon, ¶ 13).
We think it fair to say that Ianni, as the unlucky decisionmaker in
this employment-related controversy, was between a rock and a hard place.
Regardless of whether he decided to have the photographs removed or left
alone, it was reasonable for him to assume that some faculty members would
be quite upset. In explaining his decision to remove the photographs,
Ianni stated in his affidavit that the situation with which he was dealing
was unique in his experience, that he tried suggesting to the history
department faculty that "it would be an act of collegiality to remove the
photos" and they "should all be sympathetic to the effects of the agitation
on campus," and that, after the history department refused to accept his
suggestion, he ordered the photographs removed with the intent "to try to
maintain a positive and efficient working and learning environment
conducive to the mission of an academic institution." Id. at 7-8
(Affidavit of Lawrence Ianni, ¶¶ 8-11). Ianni himself was not personally
opposed
-33-
to the photographs. See Supplemental Appendix of Appellees at 37
(Affidavit of Albert Burnham, ¶ 4 ("Ianni stated that he personally saw
nothing wrong with the pictures")). He had them removed because of their
antagonistic effect.
Plaintiffs have not disputed the truthfulness of Ianni's stated
reason for removing the photographs, nor have plaintiffs alleged or
identified anything in the record to suggest that Ianni had any motive
other than those which he described in his affidavit. Instead, plaintiffs
maintain that it was utterly irrational for Ianni to think that removing
the photographs would serve his stated goal. Looking upon Ianni's actions
with the benefit of hindsight, the majority agrees with plaintiffs and
further concludes that Ianni's actions also violated clearly established
First Amendment law as it existed in May of 1992. We disagree.
As we have noted, even today the parameters of the First Amendment
protection afforded to university professors' academic speech is not
clearly defined -- much less so at the time this controversy arose. See
Scallet, 1997 WL 33077, at *2. Moreover, viewing the record in the light
most favorable to plaintiffs does not dispel the fact that, no matter what
course of action Ianni had followed with respect to the two photographs,
the end result would have been the dissatisfaction of some faculty members,
and most likely disruption to the work environment -- at least insofar as
those who had already taken sides were concerned. Faced with this highly
unusual and unenviable predicament, Ianni chose to have the photographs
removed, in the hopes of maintaining a positive and efficient working and
learning environment. In our opinion, it is not appropriate, given the
facts of this case, for this court to now decide the qualified immunity
issue on the basis of whether we think Ianni should have dismissed the
concerns expressed by
-34-
Trolander, Karon, and others as irrational or unjustified; that was a
matter with which Ianni, as the responsible school administrator, was
forced to grapple at that time. The circumstances only permitted him to
accommodate one side's interests or the other's, but not both. We believe
that the Supreme Court has indicated, as a matter of substantive First
Amendment law, that it may not be appropriate for this court to second-
guess Ianni's handling of this employment-related matter. As the Supreme
Court stated in Waters, 511 U.S. at 675 (emphasis added):
The key to First Amendment analysis of government
employment decisions . . . is this: The government's interest
in achieving its goals as effectively and efficiently as
possible is elevated from a relatively subordinate interest
when it acts as sovereign to a significant one when it acts as
employer. The government cannot restrict the speech of the
public at large just in the name of efficiency. But where the
government is employing someone for the very purpose of
effectively achieving its goals, such restrictions may well be
appropriate.
We also reiterate a point emphasized in our original panel opinion.
In considering the weight to be given Ianni's perceptions and predictions
of disruption, the law provides that the disruption need not have been
actual, but may have been merely potential. Id. at 681 (holding, as a
matter of law, that the potential disruptiveness of the speech was enough
to outweigh whatever First Amendment value it might have had); Tindle, 56
F.3d at 972 ("[a] showing of actual disruption is not always required in
the balancing process under Pickering"); accord Jeffries, 52 F.3d at 13
(noting that Waters stresses that actual disruption is not required).
Notably, on this particular point, Kincade does not even mention Waters,
let alone rely on that Supreme Court precedent. In light of Waters, its
progeny, and our understanding of Ianni's predicament in this case, we
conclude that Ianni did not
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violate Burnham's or Marchese's First Amendment right to engage in
nonverbal expressive conduct when he ordered the removal of the two
photographs from the display case; in any event, he certainly did not
violate their clearly established First Amendment rights. "In view of the
difficulty that federal courts themselves have had in grappling with the
concepts of academic freedom both as to the teacher and the educational
institution, [Vice Chancellor Ianni, who is] not trained in the law could
hardly be expected to recognize the contours of [Burnham's and Marchese's]
rights." Scallet, 1997 WL 33077, at *2. We would therefore hold that
Ianni is entitled to qualified immunity with respect to the claims brought
by Burnham and Marchese based upon their alleged nonverbal expressive
conduct.20
Finally, we believe that our position is well-grounded in Eighth
Circuit jurisprudence. In Grantham v. Trickey, 21 F.3d at 292-95, Judge
Hansen, writing for a panel of this court, set forth a comprehensive and
balanced historical analysis of Eighth Circuit case law dealing
specifically with the applicability of qualified immunity in the public
employee speech context. In Grantham v. Trickey, id. at 295, this court
affirmed the district court's grant of summary judgment for the defendants
on the basis of qualified immunity upon determining that it was appropriate
under the
20
In light of the complexities of the law with which we are
dealing, including the balancing process required by the First
Amendment and the "clearly established" standard imposed by the
qualified immunity doctrine, we are not swayed by plaintiffs'
allegations that Ianni himself speculated that "if we [plaintiffs]
sued him, he 'would not stand a chance,' or words to that effect."
Supplemental Appendix of Appellees at 38 (Affidavit of Albert
Burnham, ¶ 8); see also id. at 40 (Affidavit of Richard Morris
(stating, for example, that "[w]hile I do not recall the exact
words used by Chancellor Ianni, I understood the import of his
remarks to be that he believed that the censorship of the
photographs violated the legal rights of the persons involved.")).
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circumstances of that case to follow the analysis of Bartlett v. Fisher,
972 F.2d 911 (8th Cir. 1992) (reversing the district court's denial of
summary judgment for the defendants on the basis of qualified immunity).
In Bartlett v. Fisher, id. at 914, 916-17, Judge Loken also took care to
recognize the historical and policy-based underpinnings of the qualified
immunity doctrine in this area of First Amendment law. In reasoning that
the defendants in that case were entitled to qualified immunity, Judge
Loken noted "[a]t least five circuits have concluded that, because
Pickering's constitutional rule turns upon a fact-intensive balancing test,
it can rarely be considered 'clearly established' for purposes of the
Harlow qualified immunity standard."21 Id. at 916 (emphasis added) (quoted
in Grantham v. Trickey, 21 F.3d at 293). We, too, agree with this general
statement of the law and think that the present
21
A very similar view has been expressed by our court in other
constitutional contexts. For example, in Manzano v. South Dakota
Dep't of Social Servs., 60 F.3d 505, 509-11 (8th Cir. 1995), we
observed that the constitutionally protected liberty interest which
parents have in familial integrity is not absolute, and when a
parent alleges that official conduct infringed upon that right, the
merits of that constitutional challenge are determined by a
balancing test. We then observed that "[t]he need to continually
subject the assertion of this abstract substantive due process
right to a balancing test which weighs the interest of the parent
against the interests of the child and the state makes the
qualified immunity defense difficult to overcome." Id. at 510.
"Moreover, the requirement that the right be clearly established at
the time of the alleged violation is particularly formidable." Id.
(citing cases). In Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.
1987), also a case involving the constitutional right of familial
integrity, we applied the doctrine of qualified immunity after
noting our agreement with the Seventh Circuit's observation in
Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479
U.S. 848 (1986), that, when a determination of constitutional
protection turns on application of a balancing test, "the right can
rarely be considered 'clearly established,' at least in the absence
of closely corresponding factual and legal precedent."
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case is not an exception.22 Even if we were to agree with the majority of
this en banc court that Ianni has violated plaintiffs' clearly established
First Amendment rights, we would favor acknowledging the above-quoted rule
of law, which takes into account the tensions and subtleties that lie in
this area of First Amendment jurisprudence, particularly when superimposed
with the doctrine of qualified immunity.
III.
We now turn to the forum-related arguments. Plaintiffs, including
the Kohns, assert a violation of their First Amendment right to use the
display case as a means "to publicize some of the areas of expertise and
interest of the History Department's faculty, while at the same time
portraying the faculty in an informal, somewhat humorous way." In
analyzing this claim, we agree with the district court's conclusion that
the history department display case was a nonpublic forum. 899 F. Supp.
at 403 (focusing on facts that the display case was under UMD's control,
22
We are by no means suggesting that qualified immunity will
protect public officials in every instance where the applicable
constitutional standard involves a balancing test. As plaintiffs
have pointed out, this court has on at least two occasions denied
qualified immunity to school officials who violated teachers' First
Amendment rights under Pickering. See Southside Pub. Schs. v.
Hill, 827 F.2d 270, 272-75 (8th Cir. 1987) (denying qualified
immunity to defendants, school officials, who had constructively
terminated elementary school teachers in retaliation for having
written a letter to the state department of education complaining
about violations of the federal statutory requirement that
handicapped children be provided a free appropriate public
education); Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 318
(8th Cir. 1986) (qualified immunity denied to school superintendent
and school board members who fired school principal for the stated
reason, among others, that he had publicly criticized their
decision to transfer his wife from the high school to the junior
high school level).
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that UMD allowed members of the history club to use it upon request, and
that the display case was dedicated to use of the UMD history department
for disseminating information about the department). Because the display
case was a nonpublic forum, the issue as to whether a First Amendment
violation resulted from the removal of the two photographs turns on whether
"the distinctions drawn [were] reasonable in light of the purpose served
by the forum and [were] viewpoint neutral." Cornelius, 473 U.S. at 806.
So long as these requirements are met, "[c]ontrol over access to a
nonpublic forum can be based on subject matter." Id. "The reasonableness
of the Government's restriction of access to a nonpublic forum must be
assessed in the light of the purpose of the forum and all the surrounding
circumstances." Id. at 809. We believe that Ianni's decision to remove
the two photographs was not an unreasonable subject matter restriction in
light of the purpose of the forum, which was to disseminate information
about the history department, and because his actions were narrowly
tailored and left open other channels through which Burnham's and
Marchese's interests in classical and American military history could still
be publicized.23 See Perry, 460 U.S. at 53 ("the reasonableness of the
limitations . . . is also supported by the substantial alternative channels
that remain open"). Moreover, Ianni has demonstrated beyond any dispute
that his removal of the photographs had nothing whatsoever to do with any
viewpoint which the photographs may have expressed. Contrary to the
majority's conclusion, this was not "an effort to suppress expression
merely because [Ianni] oppose[d] the speaker[s'] view[s]." Id. at 46.
Burnham himself alleges that "Ianni stated that he personally saw nothing
wrong with the
23
For example, nothing prevented plaintiffs from replacing the
removed photographs with similar pictures of Burnham and Marchese
without weapons, while continuing to publicize through written
descriptions their interests in American military and classical
history.
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pictures." Supplemental Appendix of Appellees at 37 (Affidavit of Albert
Burnham, ¶ 4). Ianni was motivated solely by his desire to address the
potential disruptiveness of the photographs, which had already been
foreshadowed by the diametrically opposed views expressed at the history
department meetings.
The majority states that "[t]he photographs of Professors Burnham and
Marchese expressed the plaintiffs' view that the study of history
necessarily involves a study of military history, including the use of
military weapons." Supra at 15. There is absolutely nothing in the record
stating or implying that Ianni or anyone else opposed such a view about the
study of history. The majority further states that Ianni had the
photographs removed "[b]ecause other persons on the UMD campus objected .
. . to allowing this viewpoint to be expressed in this particular way."
Id. This is precisely the point that we have been making all along --
Ianni was attempting to address the potential disruptiveness of the
photographs, not any viewpoint expressed by them. Moreover, his actions
were not unreasonable in light of the circumstances. Nothing in his
actions prevented plaintiffs from expressing the above-described message
through other means -- which, in fact, they clearly could do through the
exhibit's written descriptions of the professors' academic interests. See
Supplemental Appendix of Appellees at 30 (Affidavit of Ronald Marchese, ¶
9 ("Professor Burnham listed U.S. Military History among his principal
interests")). We also think the reasonableness of Ianni's actions is
supported by the facts that, after school resumed the following fall, the
two photographs were posted in the student center and Ianni took no action
at that time because "[t]he atmosphere was substantially calmer after the
summer break of 1992." Appellant's Appendix at 8 (Affidavit of Lawrence
Ianni, ¶ 12).
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In sum, we would hold as a matter of law that Ianni did not violate
plaintiffs’ First Amendment rights by regulating the use of the display
case. We most certainly believe that his actions did not violate any
clearly established First Amendment rights and, thus, he should be afforded
qualified immunity with respect to plaintiffs’ forum-related claims.
IV.
Ianni did not violate any of plaintiffs' First Amendment rights when
he ordered the removal of the two photographs from the display case. More
importantly, given the "background against which the substance of this
litigation arose," 899 F. Supp. at 397, and the lack of clarity in the
applicable law as it existed in May of 1992, Ianni should be afforded
qualified immunity. He should be spared from having to further defend
himself in this litigation and from having to pay money damages to UMD
history professors Albert Burnham and Ronald Marchese and former UMD
students Michael Kohn and Louise Kohn.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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