119 F.3d 668 (8th Cir. 1997), 95-1962, Burnham v. Ianni

Docket Nº:95-1962.
Citation:119 F.3d 668
Party Name:Albert BURNHAM; Ronald Marchese; Michael Kohn; Louise Kohn, Appellees, v. Lawrence IANNI, in his official capacity as Chancellor of the University of Minnesota at Duluth and in his individual capacity, Appellant.
Case Date:July 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 668

119 F.3d 668 (8th Cir. 1997)

Albert BURNHAM; Ronald Marchese; Michael Kohn; Louise

Kohn, Appellees,

v.

Lawrence IANNI, in his official capacity as Chancellor of

the University of Minnesota at Duluth and in his

individual capacity, Appellant.

No. 95-1962.

United States Court of Appeals, Eighth Circuit.

July 11, 1997

Submitted Jan. 14, 1997.

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[Copyrighted Material Omitted]

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Mark R. Rotenberg, Minneapolis, MN, argued (Julie A. Sweitzer, on the brief).

Scott W. Johnson, Minneapolis, MN, argued (John H. Hinderaker, on the brief).

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 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.

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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.

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 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

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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 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

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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 Minnesota. Defendants moved for summary judgment, which the district court granted in part and denied in part. The court...

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