858 F.2d 1546 (11th Cir. 1988), 87-7553, Maples v. Martin

Docket Nº:87-7553.
Citation:858 F.2d 1546
Party Name:Dr. Glennon MAPLES, Dr. Weldon Swinson, Dr. Allen Barbin, Dr. John Turner, Dr. Winfred Shaw, Plaintiffs-Appellants, v. Dr. James MARTIN, individually and as president of Auburn University; Dr. Warren Brandt, individually and as vice president of Academic Affairs of Auburn University; Dr. Lynn Weaver, individually and as Dean of Engineering, Auburn
Case Date:November 02, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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858 F.2d 1546 (11th Cir. 1988)

Dr. Glennon MAPLES, Dr. Weldon Swinson, Dr. Allen Barbin,

Dr. John Turner, Dr. Winfred Shaw, Plaintiffs-Appellants,


Dr. James MARTIN, individually and as president of Auburn

University; Dr. Warren Brandt, individually and as vice

president of Academic Affairs of Auburn University; Dr.

Lynn Weaver, individually and as Dean of Engineering, Auburn

University; Dr. Malcolm J. Crocker, individually and as

Head of the Mechanical Engineering Department, Auburn

University, Defendants-Appellees.

No. 87-7553.

United States Court of Appeals, Eleventh Circuit

November 2, 1988

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[Copyrighted Material Omitted]

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Julian McPhillips, McPhillips, DeBardelaben and Hawthorne, Montgomery, Ala., for plaintiffs-appellants.

Ann H. Franke, Washington, D.C., for amicus AAUP.

T.W. Thagard, Jr., Balch & Bingham, Montgomery, Ala., M. Stanford Blanton, Balch & Bingham, Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before RONEY, Chief Judge, JOHNSON and SMITH [*], Circuit Judges.

JOHNSON, Circuit Judge:

In 1987, five tenured professors, the appellants, 1 were transferred from the Mechanical Engineering Department ("the ME Department") at Auburn University to other engineering departments at Auburn. In this appeal, they challenge the district court's grant of summary judgment in favor of four members of the University administration, the appellees, 2 after the district court found the appellants' claim that the transfers violated their due process rights under 42 U.S.C.A. Sec. 1983 lacked merit. Additionally, one of the appellants, Dr. Turner, challenges the district court's judgment notwithstanding the verdict in favor of two of the appellees, Drs. Martin and Weaver. Although the jury found that the transfer of Dr. Turner was motivated by an exercise of his First Amendment right to free speech, the district court found that the administrators' interest in the efficient administration of an academic department at a state-sponsored institution outweighed Turner's free speech interest. We affirm.


The transfer of the appellants represents the latest controversy in a department that has been subject to factionalism and in-fighting since the mid-1970's. Since that time, one group, led by the appellants (with the exception of Dr. Turner who is a relative newcomer to the group), has consistently challenged the way the Department has been run. Although it seems clear that the appellants have acted out of genuine concern for what they perceive to be a decline in the quality of the mechanical engineering education provided at Auburn, their efforts to discredit successive Department Heads have been a major source of disruption in the Department over the last decade.

In 1983, a search committee was formed to select a new Head for the Department. Appellants campaigned aggressively for the retention of Dr. Swinson, who was at that time serving as acting Department Head. Instead, Dr. Crocker was unanimously recommended by the faculty search committee and became Head of the Department in August 1983. With Dr. Crocker's appointment, tensions again increased as the appellants (joined by Dr. Turner) opposed many of his personnel and administrative decisions. Their disagreement was visible in numerous hostile memoranda and personal confrontations. Specific issues of debate included salaries, allocation of resources, and the "undemocratic" management style of Dr. Crocker.

Meanwhile, in the spring of 1986, the ME Department began preparing for an accreditation review by the American Board of Engineering and Technology ("ABET") in

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the fall. 3 Although the ME Department submitted an official report to ABET in the spring, the appellants formed a "self-study" committee with the purpose of providing additional information to ABET. Using their own funds, they devised and distributed a survey to the ME faculty in August of 1986.

Although not all the faculty responded, the results of the survey were published in a report entitled "Mechanical Engineering at Auburn University--a Review" ("the Review"). The Review was distributed to the faculty, students and some alumni and administrators in October 1986. While it contained a discussion of problems such as the critical need for new faculty, additional funding and more physical space, a main concern of the authors was the lack of faculty involvement in administrative decisionmaking and the "morale problem" in the Department. The tone of the Review was extremely critical of the Department Head; one of the appellants admitted that the group hoped the Review would demonstrate that Dr. Crocker "had to go."

The Review was also sent to ABET. In November of 1986, ABET responded to the Review, advising Dr. Maples that in their opinion most of the material in the Review discussed personnel and administrative matters, which were unrelated to ABET criteria for accreditation. Defendants' Exhibit 83. After an on-site visit, ABET concluded that the schism in the Department was seriously disrupting the educational process there and affecting faculty in other engineering programs. The visiting team characterized the Review as "academic terrorism" which was aimed at discrediting Dr. Crocker and cited the frequent turnover of Department Heads as evidence that the situation required drastic action.

Based on the ABET findings and the recognition that years of in-fighting were injuring the Department, Dr. Martin concluded that reassignment of the appellants was necessary. He therefore approved Dean Weaver's recommendation that the appellants be transferred to other engineering departments. 4 Appellants were notified on November 6, 1986, that their transfers would become effective on January 1, 1987.

Although Auburn University provides a grievance procedure for faculty to challenge personnel decisions with which they disagree, none of the appellants initiated such a proceeding. Instead they instituted the present action, charging the appellees with violating the appellants' constitutional rights under 42 U.S.C.A. Sec. 1983. Specifically, they claimed they were transferred in violation of their right to due process as guaranteed by the Fourteenth Amendment and that the transfers were retaliatory in violation of their First Amendment right to free speech. They sought injunctive relief in federal court on December 11, 1986. After an evidentiary hearing, such relief was denied and the appellants' transfers became effective in January 1987.

Appellees moved for summary judgment as to both issues on April 3, 1987. The district court granted the motion in part, denying the appellants relief on their due process claim. On April 27, 1987, the trial commenced on the First Amendment issue. At the conclusion of the evidence, the court entered directed verdicts in favor of appellees Brandt and Crocker in their official capacities. The court also entered directed verdicts in favor of all four appellees in their individual capacities on the basis of qualified immunity. However, the trial court denied the motions of Martin and Weaver in their official capacities for a directed verdict, leaving them as the only remaining defendants in the suit. The case was then submitted to the jury on special interrogatories with respect to the appellants' claim for reinstatement. The jury found that the Review was a substantial or

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motivating factor only in the decision to transfer appellant Turner and that he would not have been transferred had he not participated in the Review. The jury also found that Maples, Shaw, Swinson and Barbin did not prove, by a preponderance of evidence, that their activity in preparing the Review was a substantial or motivating cause of their transfer. Accordingly, the court entered judgment in favor of Turner on his First Amendment claim and for Martin and Weaver on the First Amendment claims of the other four appellants. The trial court then granted Martin and Weaver's motion for judgment notwithstanding the verdict as to Turner's claim, holding that, as a matter of law, the Review did not deal with a matter of public concern and that the challenged speech had a high tendency of...

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