Burnham v. Ianni
| Decision Date | 17 March 1995 |
| Docket Number | Civ. No. 5-94-6. |
| Parties | Albert BURNHAM, Ronald Marchese, Michael Kohn and Louise Kohn, Plaintiffs, v. Lawrence IANNI, as Chancellor of the University of Minnesota at Duluth and in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Faegre & Benson, P.L.L.P., John H. Hinderaker and Scott W. Johnson, Minneapolis, MN and Michael S. Husby, Duluth, MN, appeared for and on behalf of Plaintiffs.
Mark B. Rothenburg, General Counsel, University of Minnesota and Julie A. Sweitzer, Minneapolis, MN, appeared for and on behalf of Defendant.
Plaintiffs commenced this action for injunctive relief and damages against defendant University of Minnesota alleging violations of rights arising under the First Amendment to the United States Constitution and Art. 1, § 3 of the constitution of the State of Minnesota. The matter grows out of a decision by defendant to remove certain photographs, on or about May 5, 1992, from a display case located in the History Department of the University.
This matter came on before the Honorable Michael J. Davis on July 20, 1994 and January 11, 1995 on the motions of defendant to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and 56. For the reasons set out below, the court grants, in part, and denies, in part, the motion of July 20, 1994 and denies the motion of January 11, 1995.
This is a case concerning the interplay of academic freedoms, history and perceived threats to personal security. The facts of the matter are not seriously disputed by the parties; the gravamen of this lawsuit concerns the propriety of the actions taken in response to the alleged threats to a faculty member's personal safety.
In June 1991, Sandra Featherman was appointed to the post of vice chancellor for the University of Minnesota at Duluth ("University"). Shortly after her appointment was announced, Featherman began receiving threats. The threats were bizarre, graphic and frightening:
At the same time that Featherman was being threatened, forged memoranda bearing defendant's name, were circulated in and about the campus. The memoranda referred to an alleged plot to kidnap Featherman and used the terms "Prince of Death" and "Deer Hunters". The forged document was circulated through the mail to various departments and left in hallways of various campus buildings.
Beginning in March 1992, history Professor Judith Trolander became the target of threats. The caption on the flyers left in the hallways of various University buildings was: "The Imperial Council of Deer Hunters Proclaim Open Season on Judy Trolander Lesbian Feminist Bitch." The memorandum purported to reveal Professor Trolander's home address, addressed questions concerning the appropriate weapons and provided the reader with potential locations from which to carry out an attack. Finally, the flyer proclaimed: The flyer specifically addressed Professor Trolander, but its threat was targeted to all faculty members who cooperated with Vice Chancellor Ianni's efforts to develop a diversity program: "all faculty would be sentenced to death along with their pets, children and spouses."
Defendant undertook to calm the concerns of the faculty regarding these incidents. Despite his distribution of a memoranda in which he addressed the seriousness with which he was taking the threats and in which he reiterated his commitment to the diversity program, the fears of many in the campus community were not alleviated. The investigation of the origin of the threats continued and the threats continued to hang over the campus. It is this background against which the substance of this litigation arose.
During the 1991 fall quarter, two members of the University History Club, plaintiffs Kohn, approached several members of the History Department faculty, including plaintiffs Burnham and Marchese, with an idea to publicize the varied interests of the Department's faculty, while at the same time portraying the faculty in a humorous and informal fashion.1 The Kohns proposed that the professors pose, with a prop representing their historical interests, for a photograph. The professors also agreed to provide background information on their academic background, historical heroes and to supply a quotation to be used along with the photographs.
Professor Marchese posed with a Roman short sword and wore a cardboard laurel wreath. He listed his specialties as ancient Greece and Rome, and Homeric literature and identified Alexander the Great as his historical hero. Marchese chose the Roman sword as his prop because of his opinion that an understanding of the military aspects of the ancient world is necessary to a complete understanding of those societies.
Professor Burnham has a special interest and expertise in American military history. He chose to pose wearing a "coonskin" cap and holding a .45 caliber pistol to reflect his interests in both military history and his historical heroes, John Adams and Davy Crockett.
Eleven faculty members contributed pictures and other information to the Kohns, who then assembled the material for display. The display was placed in a case located in a corridor outside the History Department's classrooms. It was intended to advertise the breadth and interests of the faculty and, perhaps, to attract new interest in the department.
The display went up on or about March 27, 1992.
Around April 10, 1992, Judith Karon, director of personnel and affirmative action officer for the University, received several complaints about the History Department display because it contained the photographs of Marchese and Burnham holding weapons; Burnham's use of the handgun apparently drew particular opprobrium. Karon contacted the University police and she and one Captain Michalicek visited the display. They were told that the display had been prepared by history students and had only been posted for a few weeks. Karon asked whether the photographs could be removed.
Subsequent to the visit, Karon received several anonymous calls concerning the display. In addition, Karon received a call from Professor Trolander, who was extremely upset about the display.
Karon then sent a letter to the dean of the College of Liberal Arts, John Red Horse asking that he order the photographs removed. Dean Red Horse did not act on the request. On April 30, 1992, Karon advised Burnham by memorandum that she believed the photographs to be inappropriate given the threats received during the course of the year.
During this time period, there were several meetings between Chancellor Ianni, Karon, the History Department faculty and/or the plaintiffs here. The faculty did not agree to remove the photographs. During the course of the meetings the desire to remove the photographs was attributed to, variously, the death threats, sexual harassment and the offense which Professor Trolander had taken from the photographs.
On May 4, 1992, Chancellor Ianni directed the University Plant Services Director and Captain Michalicek to remove the photographs. On May 5, Captain Michalicek obtained the key to the display case, opened it and removed the two offending photographs from the eleven or twelve in the display. Before the display could be replaced, plaintiff Burnham removed the remaining photos and the display was terminated. The photographs were apparently turned over to Karon, who locked them away. They were later returned to plaintiffs Kohn.
Finally, the Kohn plaintiffs have received their respective degrees, graduating from the University in August 1992.
Under Federal Rule of Civil Procedure 56, a moving party is entitled to summary judgment if the evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of establishing the nonexistence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2552; City of Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., 838 F.2d 268, 273 (8th Cir.1988). Once it meets that burden, the non-moving party may not then "rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If, based upon the evidence, a reasonable jury could not return a verdict for the non-moving party, summary judgment is appropriate. Id. at 248, 106 S.Ct. at 2510. Summary judgment is an appropriate tool to dispose of claims which are based on undisputed facts and unsupported by the law. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-54; Hegg v. United States, 817 F.2d 1328, 1331 (8th Cir.1987).
Defendant first asserts that plaintiff's Section 1983 action cannot be maintained against the University or against Chancellor Ianni for monetary damages because they are not persons within the meaning of Section 1983.
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Burnham v. Ianni
...clearly established First Amendment rights, in a way that an objective university chancellor would have known. Burnham v. Ianni, 899 F.Supp. 395, 400 (D.Minn.1995). Ianni appeals the denial of summary judgment on this ground, contending that the plaintiffs' First Amendment rights were not c......
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Burnham v. Ianni
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