Piarowski v. Illinois Community College Dist. 515, 84-1152

• Decision Date: 10 May 1985
• Docket Number: No. 84-1152,84-1152
• Citation: 759 F.2d 625
• Parties: 24 Ed. Law Rep. 46 Albert R. PIAROWSKI, Plaintiff-Appellant, v. ILLINOIS COMMUNITY COLLEGE DISTRICT 515, Prairie State College, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 625

759 F.2d 625

24 Ed. Law Rep. 46

Albert R. PIAROWSKI, Plaintiff-Appellant, v. ILLINOIS COMMUNITY COLLEGE DISTRICT 515, Prairie State

College, et al., Defendants-Appellees.

No. 84-1152.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1985.

Decided April 12, 1985.

Rehearing En Banc Denied May 10, 1985.

Harvey Grossman, Roger Baldwin, Chicago, Ill., for plaintiff-appellant.

John M. Collins, Jr., Cowen, Crowley & Hager, Chicago, Ill., for defendants-appellees.

Before WOOD and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Prairie State College is a junior college owned by the State of Illinois and located just to the south of Chicago; it has 6,000 students. Albert Piarowski is the chairman of its art department. The president and other top officials of the college, defendants along with the college in this federal civil-rights suit under 42 U.S.C Sec. 1983, ordered Piarowski to remove from a public exhibit in the college three works of art that he had created and was displaying there. He claims that by doing this the defendants (whose action, none deny, was state action) violated his rights under the First Amendment, made applicable to the states by interpretation of the Fourteenth Amendment. After a bench trial, the district court gave judgment for the defendants, and Piarowski appeals. Although the underlying dispute is not rare in the art world, see DuBoff, The Deskbook of Art Law, ch. VIII (1977), we have found only two cases that resemble this. In Close v. Lederle, 424 F.2d 988 (1st Cir.1970), an art instructor at a state university, after being invited to exhibit his paintings in a busy corridor, was made to remove them because they were sexually explicit; the First Circuit found no violation of the First Amendment. Appelgate v. Dumke, 25 Cal.App.3d 304, 101 Cal.Rptr. 645 (1972), has similar facts, but went off on waiver grounds.

On the main floor of Prairie State College's principal building is a large open area, the "mall." A room 27 feet by 21 feet in size, the "gallery," adjoins the mall near the entrance to the building. No wall separates the gallery from the mall; the gallery is thus an alcove off the mall. A cafeteria, a book store, and a number of other facilities also open onto the mall, and the part of the mall that adjoins the gallery doubles as a student lounge. The mall is the college's main gathering place and thoroughfare; the classrooms are on the upper floors of the same building.

Piarowski and another member of the art department are the gallery coordinators, meaning that they are in charge of arranging art exhibits for the gallery--exhibits of student work picked by members of the faculty, exhibits of the work of outside artists invited by the coordinators, and finally exhibits of art work by members of the faculty. The college has set no criteria for picking works to be exhibited in the gallery, leaving the matter to the coordinators' judgment.

On March 3, 1980, the "Art Department Faculty Exhibition," an annual affair to which the coordinators invite all the members of the department to contribute (there are four full-time members), opened with works by all four members. Each had decided which of his works to exhibit. Piarowski contributed eight stained-glass windows. Five were abstract; three were representational and became the focus of controversy. One depicts the naked rump of a brown woman, and sticking out from (or into) it a white cylinder that resembles a finger but on careful inspection is seen to be a jet of gas. Another window shows a brown woman from the back, standing, naked except for stockings, and apparently masturbating. In the third window another brown woman, also naked except for stockings and also seen from the rear, is crouching in a posture of veneration before a robed white male whose most prominent feature is a grotesquely outsized phallus (erect penis) that the woman is embracing.

Although when described in words the three stained-glass windows (especially the third) sound pretty obscene, the defendants do not argue that the windows are obscene in the legal sense. The windows are not very realistic; seem not intended to arouse, titillate, or disgust; and are not wholly devoid of artistic merit, or at least artistic intention. They are in the style of Aubrey Beardsley, the distinguished fin de siecle English illustrator. Two of Piarowski's windows are imitations of two of Beardsley's illustrations for Lysistrata, Aristophanes' comedy, itself sexually explicit, about wives who go on a sex strike in an effort to end the Peloponnesian War. On his deathbed Beardsley ordered his illustrations for Lysistrata destroyed as obscene, Weintraub, Aubrey Beardsley: Imp of the Perverse 258 (1976), but the order was not carried out; and though some of the illustrations, with their immense and graphic phalluses, see, e.g., Wilson, Beardsley, pl. 38 (3d ed. 1983), might well be considered indecent even today, the originals are on public display in--with nice irony--the Victoria and Albert Museum. See Weintraub, supra, at 199 n. 1. The window with the phallus is based on a forged Beardsley drawing entitled "Adoration of the Penis."

Piarowski testified that he never intended the women in the windows to be taken to be Negro women; he used brown glass (he said amber, but the women in two of the windows are darker than that) for contrast. The women could, indeed, be taken to be Polynesian rather than Negro (but they are too dark to be Greek). Of course the "Adoration of the Penis" window would not have been less offensive if the man had been dark and the woman light.

The three windows were clearly visible from the mall, and they provoked a number of complaints from students, cleaning women, and black clergymen, though it is not clear that the clergymen actually saw the windows. Prairie State College serves a community in which Aubrey Beardsley is not a household word; almost half the students are night students, three-fourths are part-time rather than full-time students, and the college has no admission requirements. Anyway the exhibit did not mention Beardsley. After ten days the defendants ordered Piarowski to remove the windows. They suggested he exhibit them in a room on the fourth floor (the floor on which the art department's classrooms are located) that in its one year in use as an exhibit room had been used only for exhibiting photography. The room is smaller than the gallery (10 feet by 25 feet) but large enough to hold all of Piarowski's windows and indeed the whole exhibit. Although the room was being used for another exhibit at the time and it appears, though not clearly, that it would not have been free till the summer (the college is in session during the summer), the defendants may not have known that the room was in use--there is nothing in the record on this question. And they may, for all we know, have been willing to move the photography exhibit somewhere else. Their directive to Piarowski left room for counterproposals: "... the three stained glass pieces ... are to be removed from the mall of the college as soon as possible. If you feel that an alternative place for exhibiting these pieces is needed, the gallery on the fourth floor will be acceptable. Thank you for your cooperation." No counterproposals were forthcoming. Piarowski did not even tell the defendants that the fourth-floor room was occupied. Apparently his objection to exhibiting the windows in that room was not that it was unavailable but that it was out of the way and, more important, that the exhibit should not be broken up.

When Piarowski refused to remove the windows, one of the defendants removed them. That was on Friday, March 14. On Monday the art department voted to close the exhibit rather than break it up and it closed two weeks after it had opened, which is to say a week before it was scheduled to close. In retrospect the defendants might have been wiser to have suffered the exhibit to continue intact for another week and have thereby avoided this lawsuit.

Piarowski intended no political statement by the content and coloring used in his windows, no disparagement of women or blacks, no commentary on relations between the sexes or between the races. The windows were art for art's sake. But the freedom of speech and of the press protected by the First Amendment has been interpreted to embrace purely artistic as well as political expression (and entertainment that falls far short of anyone's idea of "art," such as the topless dancing in Doran v. Salem Inn, Inc., 422 U.S. 922, 932-34, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975)), unless the artistic expression is obscene in the legal sense. See, e.g., Miller v. California, 413 U.S. 15, 34-35, 93 S.Ct. 2607, 2620-21, 37 L.Ed.2d 419 (1973). And if the college had opened up the gallery to the public to use as a place for expression it could not have regulated that expression anyway it pleased just because the gallery was its property, Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983), or because the artist happened to be a member of the college's faculty. Cf. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734 20 L.Ed.2d 811 (1968); Knapp v. Whitaker, 757 F.2d 827 (7th Cir.1985). The artist's status as an employee would give the college more control over his activities than over a stranger's, cf. id., at 842; McMullen v. Carson, 754 F.2d 936, 938-39 (11th Cir.1985); Clark v. Holmes, 474 F.2d 928 (7th Cir.1972) (per curiam), but not unlimited control.

But the public was not allowed to exhibit in the gallery; unlike the municipally operated theater in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), where outside producers put on plays for the entertainment of the general public, the gallery was not generally available for outsiders to...