Schiff v. Williams

• Citation: 519 F.2d 257
• Decision Date: 17 September 1975
• Docket Number: No. 74-2205,74-2205
• Parties: Ed SCHIFF et al., Plaintiffs-Appellees, v. Kenneth R. WILLIAMS, individually and as former president of Florida Atlantic University and Glenwood G. Creech, as president of Florida Atlantic University, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 257

519 F.2d 257

Ed SCHIFF et al., Plaintiffs-Appellees, v. Kenneth R. WILLIAMS, individually and as former president of

Florida Atlantic University and Glenwood G.

Creech, as president of Florida Atlantic

University, et al.,

Defendants-Appellants.

No. 74-2205.

United States Court of Appeals, Fifth Circuit.

Sept. 17, 1975.

James T. Schoenbrod, Miami, Fla., Charles E. Miner, Jr., Gen. Counsel, John D. Carlson, State of Fla. Board of Education, Tallahassee, Fla., for defendants-appellants.

John L. Parker, Jr., West Palm Beach, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG, CLARK and GEE, Circuit Judges.

CLARK, Circuit Judge:

Three students brought suit against the president of Florida Atlantic University alleging that he had dismissed them from their positions as editors of the school newspaper in violation of their First Amendment rights. The district court found in favor of the students, ordered them reinstated, and awarded them back pay, compensatory damages, and attorneys' fees. We affirm the decision insofar as it grants back pay and compensatory damages, but reverse the award of attorneys' fees.

The plaintiffs, Schiff, Littman and Vickers, were editors of the Atlantic Sun, the student newspaper of Florida Atlantic University. On April 27, 1973, the President of the University, Kenneth Williams, dismissed all three from their positions and began publishing the student newspaper using administrative personnel. He published his reasons for this action in a statement which read in pertinent part:

"I am today dismissing Mr. Ed Schiff as Editor of the Atlantic Sun and Mr. Tom Vickers and Ms. Carin Litman as Associate Editors. I take this action because I have become convinced that the level of editorial responsibility and competence has deteriorated to the extent that it reflects discredit and embarrassment upon the university. I am also convinced that the decreasing quality of the Atlantic Sun is irreversible under the present senior staff leadership.

"It is clear to me that the Editor does not respect, or is not able to interpret correctly, the guidelines ¹ of the Board of Regents and the President. The Atlantic Sun currently reflects a standard of grammar, of spelling and of language expression unacceptable in any publication, certainly unacceptable and deplorable in a publication of an upper-level graduate university.

"The editorial policy of the Sun has increasingly emphasized villification and rumor mongering, instead of accurately reporting items likely to be of interest to the university community. Even articles on non-controversial issues such as enrollment trends recently have been incorrect and misleading. The editorials themselves have degenerated into immature and unsophisticated diatribes which reflect most negatively on the overall quality of our student body."

Under 42 U.S.C. §§ 1981, 1983, and 1985, the student editors sought injunctive and declaratory relief against Williams and his successor in office, Glenwood Creech, and requested general, special, and punitive damages and attorneys' fees for alleged violations of their rights. The court found that the protection of the First Amendment barred defendants' action, ordered plaintiffs reinstated, and enjoined the defendants from further control of the editorial content of the Atlantic Sun. The court also ordered that the students be awarded back pay; that nominal compensatory damages of one dollar be paid by Williams in his personal capacity to each plaintiff; and that the defendants in their official capacities pay the attorneys' fees incurred by plaintiffs in prosecuting the action.

Awaiting Supreme Court action on pending cases which could resolve controlling issues, we remanded the case for clarification, since neither the source of the back pay award nor the source and rationale for the award of attorneys' fees appeared clear here. The supplemental record now filed discloses that back pay awards are to come from an activity fund contributed by students which the trial judge ordered placed in an account to be held by an appropriate state agency. The attorneys' fees award against the defendants in their official capacities was made as an integral part of the equitable remedy of injunctive reinstatement. The court made no finding of bad faith or obstinate conduct by the defendants.

The defendants' basic assertion of error relates to the court's finding that the dismissal of the editors was an actionable violation of their constitutional rights. They contend the question is not whether Williams restricted the editors' First Amendment freedom by regulation of the content of the newspaper, but whether the restriction was legally justified. The defendants maintain that since the editors were state employees, their free speech could be restricted by their employers if this right was outweighed by a more significant governmental interest in this case, the university's interest in a publication which maintained high standards of grammar and literary value so as to project a proper view of the university and its student body. Defendants argue that the judge did not hear testimony on the significance of these nonconstitutional reasons for the students' dismissal (control of technical quality); wherefore he could not and did not balance them against the constitutional aspect of the dismissal (control of content).

The defendants' argument fails on two grounds. First, no evidence was presented on the university's nonconstitutional reasons except for the unsubstantiated reference to poor technical quality of the newspaper in the president's statement. In the absence of any evidence as to specific publications, it was not possible for the court to make a balancing type of evaluation.

Second, the right of free speech embodied in the publication of a college student newspaper cannot be controlled except under special circumstances. The cases relied on by the defendant all involve university employees performing tasks unrelated to the First Amendment, who, incidental to their employment, exercised their First Amendment freedoms to the displeasure of the university. By firing the student editors in this case, the administration was exercising direct control over the student newspaper. See generally Healy v. James, 408 U.S. 169, 183, 92 S.Ct. 2338, 2347, 33 L.Ed.2d 266 (1972). The dispositive case in this circuit in the area of control of content of student publications is Bazaar v. Fortune, 476 F.2d 570, rehearing en banc 489 F.2d 225 (5th Cir. 1973). The rule of Bazaar is that special circumstances must be present to give a university the right to control student publications, for " . . . once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees. . . . (T)he courts have refused to recognize as permissible any regulations infringing free speech when not shown to be necessarily related to the maintenance of order and discipline within the educational process." 476 F.2d at 574-75. See Antonelli v. Hammond,308 F.Supp. 1329 (Mass.1970). In the case at bar the "special circumstances" relied on by the university poor grammar, spelling and language expression could embarrass, and perhaps bring some element of disrepute to the school; but, assuming the president's assessment was correct, these faults are clearly not the sort which could lead to significant disruption on the university campus or within its educational processes. See Bazaar v. Fortune,supra at 576. See also Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973).

The defendants also contest the award of compensatory damages by asserting that these public officials are immune from liability because they were performing discretionary duties and acted in good faith. The district court acknowledged that the president was not "motivated by malice . . . perhaps he thought he had a right to do what he did; he probably did think so." Nevertheless he found that President Williams did not seek legal advice prior to his actions and that the sort of motivation for his actions which the proof established did not constitute a defense to a charge that his acts had abridged First Amendment rights.

Recent precedent has broadened the qualified immunity available to public officials who are accused of constitutional wrongs while exercising discretionary duties within the scope of their authority. "These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation (is) dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity . . .." Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974). "To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student's constitutional rights, a school (official), who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic unquestioned constitutional rights of his charges. Such a standard...