Hudson v. Craven

• Decision Date: 06 April 2005
• Docket Number: No. 03-35408.,03-35408.
• Citation: 403 F.3d 691
• Parties: Barbara V. HUDSON, Plaintiff-Appellant, v. James CRAVEN; Yvette Jackson; Patricia Serrano; Katrina Golder; David Duback, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.3d 691

Barbara V. HUDSON, Plaintiff-Appellant, v. James CRAVEN; Yvette Jackson; Patricia Serrano; Katrina Golder; David Duback, Defendants-Appellees.

No. 03-35408.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2004.

Filed April 6, 2005.

Donald B. Potter, Portland, OR, for the plaintiff-appellant.

Talis M. Abolins, Assistant Attorney General, Olympia, WA, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-02-05070-FDB.

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

The World Trade Organization ("WTO") is the international organization charged with dealing with the rules of trade between nations. In late November 1999, top trade officials from WTO-member countries met in Seattle. The Seattle gathering gained national attention, not just for the policy debate on international trade issues but also because of the demonstrations and violence that occurred.

This civil rights case stems from a community college instructor's claim that the college retaliated against her after she attended WTO protests with some of her students. Her claim is a hybrid one — it involves both speech and associational rights under the First Amendment. We are presented with an issue of first impression, namely the appropriate test for benchmarking this hybrid right. We conclude that this case should be evaluated under the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and that under Pickering, the college's legitimate safety and pedagogical concerns outweighed the instructor's rights. We affirm the district court's grant of summary judgment in favor of the college.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Clark College, a community college in Vancouver, Washington, hired Barbara Hudson as an adjunct instructor to teach Economics 101, Introduction to Economics. In the fall of 1999, a few of Hudson's students suggested that the class attend a public rally and march opposing the WTO. Hudson thought that her students' attendance at the rally organized by the AFL-CIO on behalf of the labor movement would be a good idea, and that the speakers would expose the students to points of view not widely disseminated in the mainstream media.

When Dr. James Craven, the lead tenured professor in Clark College's Economics Department, became aware of Hudson's plan to attend the rally with her students, he was "absolutely opposed" to it. The Internet and news accounts warned about the potential for violence during the demonstrations and the Seattle Police Department was undertaking preparations in anticipation of rioting. The event was cast as the "Battle for Seattle." Craven told Hudson that attending the rally would put the students in danger and threatened to have her "terminated" if she went ahead with her plan.

Although these concerns did not stop Craven from attending the WTO protests himself, he was worried about the "potential risk to students and potential liability for the college." Craven communicated to Hudson that the students who attended the rally would have access to their teacher for "schmoozing" and "networking" in a way that other students would not; that a teacher should not mix her professional responsibilities with her politics; and that there was only "marginal [educational] benefit" in attending the demonstration. Nonetheless, Craven said that it was "fine" if Hudson or the students attended the WTO rally independently, without any affiliation with Clark College.

Patti Serrano, head of the Business Division at the College, also was troubled that Hudson wanted to attend the WTO as part of a field trip. Serrano felt that Hudson was not "completely forthright" about her plans, and eventually learned that Hudson and the students planned to participate in a demonstration explicitly opposing the objectives of the WTO. Serrano recommended to Yvette Jackson, Vice-President of the College, that Hudson "not be permitted to attend the demonstrations with students in a manner that suggested association in any manner with [the] College."

Two days before the protests in question, Jackson wrote a letter to "Faculty Members" that voiced "grave concerns about any involvement by Clark College students and faculty" in the WTO rallies. Her "major concerns" were the safety of students and faculty, and she laid down the following guidelines for faculty:

• Your participation in this event, as well as the participation of any Clark College student is as an individual, and not as a representative of Clark College.

• The participation of students must be entirely voluntary.

• There cannot be any connection or participation in this event to any grade or activity in the class.

• Students must be made aware that they are participating in this activity as individuals, and not as students at Clark College.

• Students who do not participate in this activity cannot in any way be penalized in terms of grade or be required to do any extra activity to "make up" for their lack of involvement.

• You will be responsible for the safety [of] the students accompanying you, and are charged with making prudent decisions as to the safety of participation in certain activities.

(emphasis in original).

Hudson backed off from her idea of organizing a field trip under the auspices of the College, and she wrote to Jackson that she would "tell the students planning to go to Seattle that we are not an official Clark [College] field trip." She stressed that "[t]he students will not be carrying placards in the parade identifying them as Clark College students."

Although she disclaimed any official role for herself as the instructor of students who would be in attendance, Hudson emphasized the educational value of observing the protests and the "caliber of the organizations cosponsoring" the WTO literature that she distributed in class to her students. She told students attending the rally to "observe information" as "it might be on the test." Hudson claimed that no students were pressured to attend, and that her role was confined to finding transportation because private vehicles would be unable to reach downtown Seattle on the day of the rally. In the materials setting out trip details, she wrote:

This will be the political Mardi Gras of the century in Washington state. (Of course, there are just a few more days in the century...)

Take care of one another. Stick with your buddy and your group. Make lots of noise. Dress warmly. Slickers will be provided if necessary. Take along a peanut butter or other sturdy sandwich that will not spoil just in case no vendors are available when you are hungry. Smile, laugh, tell jokes, observe information (it might be on the test)....

The prediction of rioting and mass demonstrations erupted into reality. On November 30, 1999, the mayor of Seattle declared a civil emergency and imposed a dusk-to-dawn curfew over a large portion of the city. That same day, Hudson took a bus with some of her students, her husband, and others from churches and unions. Their participation in the rally was without incident. Although Hudson attempted to circumvent the clear directive that she could not sponsor a field trip on behalf of the College, the trip was, in effect, a de facto class field trip. As structured, from Hudson's organization of the trip to her integration of the trip into the final examination it was impossible to separate the trip from the College.

Shortly after the WTO protests, Craven recommended non-renewal of Hudson's contract. He wrote to Hudson that her "services in teaching Economics 101 [would] not be required for the winter," and that Dr. Wambalaba, the tenured faculty member who was on leave, indicated a desire to return to the college to teach Economics 101. Craven also advised her that he would be assuming responsibility for Economics 101 classes in order to establish course content and scope consistent with the College's needs.

Hudson then filed suit against Craven and four other administrators of Clark College (collectively "the College" or "Clark College"). She alleged a cause of action under 42 U.S.C. § 1983 for violations of the First Amendment and a state law theory of tortious interference with a business expectancy.

The district court granted the College's motion for summary judgment. The court found that under the Pickering test, the interests of Clark College outweighed those of Hudson in associating with her students at the rally. In the alternative, under the test in Mt. Healthy City School District Board of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the district court found that Hudson's contract with the College would have been discontinued anyway, and that the administrators enjoyed qualified immunity. The court also dismissed her state law claim.

II. DISCUSSION

A. THE PICKERING STANDARD AND HYBRID FIRST AMENDMENT CLAIMS

The essence of Hudson's claim is that Clark College retaliated against her because she exercised her First Amendment rights. In a prototypical retaliation scenario, to establish a prima facie case under the First Amendment, a public employee like Hudson "must show that (1) she engaged in protected speech; (2) the defendants took an adverse employment action against her; and (3) her speech was a substantial or motivating factor for the adverse employment action." Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir.2004) (internal quotations and citations omitted). Once that showing has been made, the burden shifts to the employer who must

demonstrate either that, under the balancing test established by Pickering [,] the employer's legitimate administrative interests outweigh the employee's First Amendment rights or that, under the mixed motive analysis established by Mt....