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's(1) 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.
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
of names and dates, one dwells in a realm of disputed
ideas.
Gottlieb, 62 N.Y.U.L. Rev. at 573 (footnote omitted).
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.
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
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."
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.
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).
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
F.3d at 544.(8) 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).
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 established;" and (2) the professors
were public employees(9) and their First Amendment rights were
subject to the fact-intensive Pickering(10) 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).
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
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."
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.
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)).
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.
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' constitutional rights. We again disagree.(15)
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."
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.
"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.
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
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).
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
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
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
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
opposition to Featherman's views.(19) "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)).
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.
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.
. . . .
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.
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
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
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"
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
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
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
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
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
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.")).
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."
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).
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.
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).
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.