Title Edwards v. California University of Pennsylvania
Date 1998
By Alito
Subject First Amendment\Freedom of Speech
Contents
Page 1
LEXSEE 156 F 3D 488
DILAWAR M. EDWARDS, Ph.D., Appellant v. CALIFORNIA UNIVERSITY OF PENNSYLVANIA; JOHN PIERCE WATKINS, Ph.D., President; NANCY Z. NELSON, Ed.D., Vice President for Academic Affairs; WILLIAM BENEDETTI, Ed.D., Dean in their official capacities; DAVID CAMPBELL, Chairperson, Educational Studies Dept.
No. 97-3285
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
156 F.3d 488; 1998 U.S. App. LEXIS 18358; 74 Empl. Prac. Dec. (CCH) P45,534
March 13, 1998, Argued
August 10, 1998, Filed
SUBSEQUENT HISTORY: **1
Certiorari Denied February 22, 1999, Reported at: 1999
U.S. LEXIS 1094.
PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 91-
01668).
DISPOSITION: Affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant professor chal- lenged the judgment of the United States District Court for the Western District of Pennsylvania, which dismissed his equal protection claim, granted summary judgment for appellees, a university and its president, vice-president, dean, and chairperson of the educational studies depart- ment, on his due process claim, and reflected a jury verdict in appellees' favor on appellants' U.S. Const. amend. I and retaliation claims.
OVERVIEW: Appellant professor filed an action pur- suant to 42 U.S.C.S. § 1983, alleging that appellees, a uni- versity and its president, vice-president, dean, and chair- person of the educational studies department, deprived him of his rights to free speech, due process, and equal protection, by restricting his choice of classroom materi- als, criticizing his teaching performance, and suspending him with pay. Appellant also alleged that appellees retal- iated against him for filing the action. The district court dismissed appellant's equal protection claim, and granted summary judgment in favor of appellees on the due pro- cess claim, and a jury found in favor of appellees on the remaining claims. On appeal, the court affirmed. The court held that the district court's instruction on the U.S.
Const. amend. I claim was irrelevant, because appellant did not have an First Amendment right to decide what would be taught in the classroom, appellant's due process claim was barred because he had not been deprived of a liberty interest protected by U.S. Const. amend. XIV, and dismissal of appellant's equal protection claim was proper where appellant's counsel admitted that the com- plaint failed to state a claim.
OUTCOME: The court affirmed the district court's dis- missal of appellant professor's equal protection claim, the grant of summary judgment for appellees, a university and its president, vice-president, dean, and chairperson of the educational studies department, on the due pro- cess claim, and the jury verdict in appellees' favor on the First Amendment and retaliation claims. Appellant did not have a First Amendment right to choose classroom materials.
LexisNexis(R) Headnotes
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN1 A public university professor does not have a U.S. Const. amend. I right to decide what will be taught in the classroom.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN2 Although a teacher's out-of--class conduct, includ- ing his advocacy of particular teaching methods, is pro- tected, his in-class conduct is not. Therefore, although a teacher has a right to advocate outside of the classroom for the use of certain curriculum materials, he does not have a right to use those materials in the classroom. Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
156 F.3d 488, *; 1998 U.S. App. LEXIS 18358, **1;
74 Empl. Prac. Dec. (CCH) P45,534
Page 2
HN3 U.S. Const. amend. I does not place restrictions on a public university's ability to control its curriculum. Constitutional Law > Fundamental Freedoms > Freedom of Speech > Public Employees' Speech
HN4 The four essential freedoms that constitute aca- demic freedom are a university's freedom to choose who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
Constitutional Law > Procedural Due Process > Scope of Protection
HN5 Stigma to reputation alone, absent some accompa- nying deprivation of present or future employment, is not a liberty interest protected by U.S. Const. amend. XIV.
COUNSEL: CRAIG L. PARSHALL (Argued), Suite
202, 910 Princess Anne Street, Fredericksburg, VA
22401. EUGENE ORLANDO, JR., Orlando & Strahn,
5341 Perkiomen Avenue, Reading, PA 19606, Counsel for Appellant.
THOMAS F. HALLORAN, JR. (Argued), 6th Floor, Office of Attorney General of Pennsylvania, 564 Forbes Avenue, Manor Complex, Pittsburgh, PA 15219, Counsel for Appellees.
JUDGES: Before: STAPLETON and ALITO, Circuit
Judges, and O'KELLEY, District Judge. *
* Hon. William C. O'Kelley, United States District Judge for the Northern District of Georgia, sitting by designation.
OPINIONBY: ALITO
OPINION:
*489 OPINION OF THE COURT
ALITO, Circuit Judge:
Appellant Dilawar M. Edwards, a tenured profes- sor at the California University of Pennsylvania, brought this action pursuant to 42 U.S.C. § 1983, alleging that the University and its officers ("the University") violated several of his constitutional rights. Specifically, **2 Edwards claimed that the University deprived him of his rights to free speech, due process, and equal protection by restricting his choice of classroom materials, criticizing his teaching performance, and suspending him with pay for a portion of one academic term. In addition, Edwards alleged that the University retaliated against him for filing this lawsuit.
Prior to trial, the district court dismissed Edwards's equal protection claim and granted summary judgment in
favor of the University on Edwards's due process claim. The case then went to trial on Edwards's First Amendment and retaliation claims, and a jury returned a verdict for the University. On appeal, Edwards assigns as error: 1) the district court's First Amendment jury instruction; 2) the district court's grant of summary judgment on his due process claim; 3) the district court's dismissal of his equal protection claim; 4) the district court's ruling that the ver- dict was not against the great weight of the evidence; and 5) the district court's decision not to permit a third amended complaint. We affirm.
I.
During the time-period at issue in this case, Professor
Edwards taught a course at the University entitled
"Introduction **3 to Educational Media" (IEM). Syllabi from the early 1980s indicate that the IEM course initially focused on how teachers can effectively use various class- room tools, such as projection equipment, chalkboards, photographs, and films. See App. I at 299-306. Later syllabi prepared by Edwards, however, included a new emphasis on issues of bias, censorship, religion, and hu- manism, and Edwards listed numerous publications con- cerning these issues as required or suggested reading. Id. at 307-37.
In May 1989, one of Edwards's students complained to University officials that Edwards had used the IEM class to advance religious ideas. On August 14, 1989, the University's Vice President for Academic Affairs, Nancy Nelson, wrote a letter to Edwards in which she outlined the student's *490 concerns and indicated that a meet- ing on the issue would be held in the fall. Nelson met with Edwards and other school officials to discuss the complaint and, on November 28, 1989, Nelson wrote to Edwards and directed that he "cease and desist" from us- ing "doctrinaire materials" of a religious nature. App. I at
366. Edwards appealed this decision to the President of the University, John Pierce **4 Watkins, and the two exchanged letters through July 1990. Watkins expressed his approval of Nelson's actions and directed Edwards to avoid advancing religious beliefs through his lectures and handouts. Dr. Edwards continued to teach the IEM course during the 1991 and 1992 school years.
In 1992, Professor David Campbell was named chair of the Education Department at the University. Upon as- suming this position, Campbell became concerned that Edwards had "interjected something that didn't belong in the IEM course : A distinct bias on religion and religious questions." App. II, Trial Tr. 2/13/97, at 38. After concluding that Edwards was teaching from a non- approved syllabus, Campbell brought the issue to the de- partment faculty during the Spring 1993 term, and the faculty voted to reinstate an earlier version of the IEM syl-
156 F.3d 488, *490; 1998 U.S. App. LEXIS 18358, **4;
74 Empl. Prac. Dec. (CCH) P45,534
Page 3
labus. Relying on the earlier syllabus, Campbell revoked certain book orders that Edwards had made for the Fall
1993 semester and, when Edwards objected, Campbell told him that he could put the matter on the agenda for the September 1993 faculty meeting. Campbell testified that Edwards never asked that the matter be placed on the meeting's agenda.
In the weeks **5 prior to the Fall 1993 term, Professor Edwards's schedule was rearranged, and he was assigned to teach an additional course -- "Educational Tests and Measurements" (ETM) -- that he had never taught. Edwards was dissatisfied with the change, and Campbell received complaints that Edwards failed to at- tend some of his ETM classes and walked out of oth- ers. At the September 1993 faculty meeting, Campbell and Edwards engaged in an exchange in which Campbell called Edwards an "embarrassment to the department" and made comments to the effect that Edwards might be better suited to a "fundamentalist college " than a
"public university." App. I at 391, 400. A non-verbatim account of the meeting was distributed to all members of the Education Department.
In response to the student complaints about Edwards's ETM class, school administrators put together a packet of materials that they wished to discuss with Edwards. The administration scheduled a meeting for Monday, October 25, 1993, but apparently did not mail the packet to Edwards until Friday, October 22, 1993. Upon arriving at the meeting, Edwards stated that he had not received any materials in the mail and he asked for additional time
**6 to prepare. App. I at 408-10. At this point, Nancy Nelson relieved Edwards of his duties, with pay, until he was ready to discuss the University's concerns. Id. at 411. Edwards remained suspended with pay for the remain- der of the semester but returned to the classroom for the Spring 1994 term to teach two ETM courses and one IEM course.
Edwards initially brought suit against the University in September 1991, alleging violations of his First Amendment free speech rights, his Fourteenth Amendment due process rights, and his rights under the Establishment Clause. In October 1991, Edwards filed an amended complaint which included an equal protection claim. After his suspension in 1993, Edwards filed a sec- ond amended complaint which contained a free speech claim, a retaliation claim, a due process claim, and an equal protection claim. The district court granted sum- mary judgment on Edwards's due process claim in January
1997, and the court denied Edwards's motion for reconsid- eration in February 1997. On February 11, 1997, the first day of trial, the district sua sponte dismissed Edwards's equal protection claim for failure to state a claim and
denied Edwards's motion to file a **7 third amended complaint. The case then went to trial on Edwards's First Amendment and retaliation claims.
Before submitting the case to the jury, the district court held a conference on jury instructions and rejected much of Edwards's proposed First Amendment instruc- tion. After the jury returned a verdict for the University, Edwards moved for a new trial. The *491 district court denied Edwards's motion, and Edwards appealed.
II. A.
Edwards first contends that the district court inade- quately instructed the jury on the issue of whether the University violated his First Amendment rights by re- stricting his "choice of curriculum materials and the con- tent and subjects of his classes." Appellant's Br. at 27. Although Edwards agrees with the standard given by the district court -- that the University had to show that its ac- tions were "reasonably related to a legitimate educational interest," App. IV, Trial Tr. Feb. 25, 1997, at 26-- Edwards argues that the district court did not adequately explain this standard and, thus, "permitted the jury to speculate on the parameters of freedom of speech." Appellant's Br. at
24. Specifically, Edwards contends that the district court failed **8 to provide guidance in the following four areas: 1) the necessity of avoiding viewpoint discrimina- tion; 2) the strength of a professor's academic freedom rights; 3) the correct legal standard regarding the discus- sion of religious issues in public classrooms; and 4) the existence of a professor's right to choose his curriculum materials absent an official school policy.
We do not find it necessary to determine whether the district court's instruction adequately defined the "rea- sonably related to a legitimate educational interest" stan- dard because, as a threshold matter, we conclude that
HN1 a public university professor does not have a First Amendment right to decide what will be taught in the classroom. This conclusion is compelled by our decision in Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172 (3d Cir. 1990), where we explained that "no court has found that teachers' First Amendment rights extend to choos- ing their own curriculum or classroom management tech- niques in contravention of school policy or dictates." Id. at 1176. Consistent with this observation, we concluded that " HN2 although a teacher's out-of--class conduct, in- cluding her advocacy of **9 particular teaching meth- ods, is protected, her in-class conduct is not." Id. (ci- tation omitted). n1 Therefore, although Edwards has a right to advocate outside of the classroom for the use of certain curriculum materials, he does not have a right to use those materials in the classroom. Accord Boring
156 F.3d 488, *491; 1998 U.S. App. LEXIS 18358, **9;
74 Empl. Prac. Dec. (CCH) P45,534
Page 4
v. Buncombe County Bd. of Educ., 136 F.3d 364, 370
(4th Cir. 1998) (in banc) ("We agree . . . that the school, not the teacher, has the right to fix the curriculum."); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794,
800 (5th Cir. 1989) ("Although the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula."). But see Bishop v. Aronov, 926
F.2d 1066, 1075 (11th Cir. 1991) (finding that a public university's restrictions on a professor's in-class speech
"implicated First Amendment freedoms").
n1 Edwards interprets Bradley as holding that
"in the absence of an official existing school pol- icy prohibiting" a professor from selecting cer- tain classroom materials, a professor has a First Amendment right to choose his curriculum mate- rials. See Appellant's Br. at 28. This interpretation ignores: 1) the Bradley court's instruction that pub- lic school teachers must abide by "school policy or dictates" when choosing their curriculum, 910
F.2d at 1176 (emphasis added); 2) the court's broad conclusion that a public school teacher's "in class conduct is not" protected by the First Amendment, id.; and 3) the fact that the school in Bradley, like the University here, took action without establish- ing an official policy. Id. at 1174.
**10
Our conclusion that HN3 the First Amendment does not place restrictions on a public university's ability to control its curriculum is consistent with the Supreme Court's jurisprudence concerning the state's ability to say what it wishes when it is the speaker. The following pas- sage from Rosenberger v. University of Virginia, 515 U.S.
819, 132 L. Ed. 2d 700, 115 S. Ct. 2510 (1995), addresses this issue in the university context:
When the State is the speaker, it may make content-based choices. When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regu- late the content of what is or is not expressed when it is the speaker *492 or when it en- lists private entities to convey its own mes- sage. . . . It does not follow, however, . . . that viewpoint-based restrictions are proper when the University does not speak itself or subsidize transmittal of a message it fa- vors but instead expends funds to encourage a diversity of views from private speakers. A holding that the University may not discrim-
inate based on viewpoint of private persons whose speech it facilitates does not **11 restrict the University's own speech, which is controlled by different principles.
Id. at 833-34. Since the University's actions in the in- stant case concerned the "content of the education it pro- vides," id. at 833, we find that the University was acting as speaker and was entitled to make content-based choices in restricting Edwards's syllabus.
Edwards's reliance on the principle of academic free- dom does not affect our conclusion that the University can make content-based decisions when shaping its curricu- lum. The Supreme Court has explained that "academic freedom thrives not only on the independent and unin- hibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself." Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 226 n.12, 88 L. Ed.
2d 523, 106 S. Ct. 507 (citations omitted). HN4 The
"four essential freedoms" that constitute academic free- dom have been described as a university's freedom to choose "who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Regents of Univ. of California v. Bakke, 438 U.S. 265, 312, 57 L. Ed.
2d 750, 98 S. Ct. 2733 (1978) **12 (opinion of Powell, J.) (quotations omitted). n2 In sum, caselaw from the Supreme Court and this court on academic freedom and the First Amendment compel the conclusion that Edwards does not have a constitutional right to choose curriculum materials in contravention of the University's dictates. Accordingly, we affirm the district court's decision not to grant a new trial on this issue.
n2 Edwards's contention that the Supreme Court has elsewhere defined academic freedom as the "principle that individual instructors are at lib- erty to teach that which they deem to be appro- priate," Appellant's Br. at 31, is incorrect. The case cited for this proposition, Edwards v. Aguillard, 482
U.S. 578, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987), reaches no such conclusion. Rather, the passage re- lied upon by Edwards simply describes the conclu- sion of the court of appeals in that case. Id. 586 n.6. At no point in Aguillard, which is an Establishment Clause case, does the Court define academic free- dom for purposes of the Free Speech Clause.
**13 B.
Edwards's second contention is that the district
156 F.3d 488, *492; 1998 U.S. App. LEXIS 18358, **13;
74 Empl. Prac. Dec. (CCH) P45,534
Page 5
court erred when it granted summary judgment for the University on his procedural due process claim. The dis- trict court initially ruled on this issue prior to trial, con- cluding that, "because Edwards was suspended with pay, he cannot prove that he was deprived of a property in- terest deserving due process guarantees." App. I at 138. Edwards moved for reconsideration on the ground that the district court's opinion did not adequately consider whether he had been deprived of a liberty interest. The district court denied Edwards's motion, explaining that he had not "pleaded facts sufficient to make out a liberty in- terest claim regarding reputation." App. II, Feb. 12, 1997
Trial Tr. at 12. We agree.
This court has previously held that " HN5 stigma to reputation alone, absent some accompanying depri- vation of present or future employment, is not a liberty interest protected by the fourteenth amendment." Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984). See also Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir.
1987) (explaining that the Supreme Court has required
"both damage to reputation and **14 the extinguish- ment of government employment as a predicate for due process protection."). Since it is undisputed that Edwards remained employed with pay at all times relevant to this case, his claim is barred by our decisions in Robb and Strum. While Edwards's temporary removal from class duties may have further stigmatized him, this action does not constitute a deprivation of employment. Therefore, we will affirm the district court's grant of summary judgment on Edwards's due process claim.
*493 C.
Edwards next contends that the district court improp- erly dismissed his equal protection claim. In making this argument, Edwards places considerable reliance on facts that came out at trial. See Appellant's Br. at 42; Appellant's Reply Br. at 18. However, the district court dismissed Edwards's equal protection claim prior to trial because Edwards's counsel admitted that the second amended complaint did not adequately allege an equal protection violation. See App. II, Feb. 11, 1997 Trial Tr. at 9-10, 74-
75. n3 Under these circumstances, Edwards is not entitled to revive his equal protection claim on appeal.
n3 The relevant exchange between the district court and Edwards's trial counsel, Jack Parson, pro- ceeded as follows:
The Court: What do you think you need to do to make out an equal pro- tection claim, don't you have to show
persons similarly situated were treated in a different manner because of par- ticipation in a protected class?
Mr. Carson: That's the criteria.
The Court: Where's that allegation? Mr. Carson: In this amended com- plaint, it is not there, not specifically set out.
The Court: This is the complaint. Okay. You are saying no equal protec- tion argument in the second amended complaint?
Mr. Carson: No, Your Honor. The Court: There is none? Mr. Carson: No.
App. II, Feb. 11, 1997 Trial Tr. at 9-10.
**15 D.
Edwards's final two contentions -- that the verdict was against the great weight of the evidence and that he should have been allowed to file a third amended complaint on the first day of trial-- are both without merit. Accordingly, we affirm the district court's resolution of both issues.
III.
In sum, we conclude: 1) that Professor Edwards does not have a First Amendment right to choose classroom materials and subjects in contravention of the University's dictates; 2) that Edwards failed to state a procedural due process liberty claim because he did not allege a de- privation of employment; and 3) that the district court properly dismissed Edwards's equal protection claim af- ter Edwards's own counsel conceded that the complaint failed to adequately state such a claim. We find Edwards's remaining arguments on appeal to be without merit. Accordingly, we affirm. We emphasize that we only pass on the narrow legal issues presented to us. Nothing in our opinion should be read to mean that we condone all of the conduct of the University officials that was revealed at trial.
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