Bishop v. Aronov, 90-7230
| Decision Date | 15 March 1991 |
| Docket Number | No. 90-7230,90-7230 |
| Citation | 926 F.2d 1066 |
| Parties | , 65 Ed. Law Rep. 1109 Phillip A. BISHOP, Plaintiff-Appellee, v. Aaron M. ARONOV, Winton M. Blount, O.H. Delchamps, Jr., Sandrall Hullett, Guy Hunt, William Henry Mitchell, John T. Oliver, Jr., Thomas E. Rast, Yetta G. Samford, Jr., Martha H. Simms, Wayne Teague, Cleophus Thomas, Jr., George S. Shirley, Cordell Wynn, all in their official capacities as members of the Board of Trustees of the University of Alabama, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Kenneth L. Goodwin, Paul E. Skidmore and Stanley J. Murphy, University of Alabama System, Office of Counsel, Tuscaloosa, Ala., for defendants-appellants.
Albert L. Jordan, Wallace, Brooke & Byers, Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before COX and BIRCH, Circuit Judges, and GIBSON *, Senior Circuit Judge.
The University of Alabama through its Board of Trustees (the "University") appeals the district court's summary judgment and other orders in favor of Assistant Professor Phillip A. Bishop ("Dr. Bishop") enjoining the University from curtailing his speech and religion rights in certain respects. 1 We conclude that the action taken by the University did not transgress constitutional guarantees and proscriptions, and we now reverse.
Our review of the record reveals that a completely independent statement of the facts would not be useful. We do not disagree with the district court as to any facts, though our views diverge as to the controlling legal principles and the conclusions to be drawn from them. These questions of law we take up presently by a de novo review of the interplay between the facts and law. See Jones v. Heyman, 888 F.2d 1328, 1330-31 (11th Cir.1989) (per curiam) (citations omitted). First, we largely adopt the district court's statement of the facts, quoting freely therefrom and supplementing it as necessary.
Phillip A. Bishop has been employed as assistant professor in the Area of Health, Physical Education, and Recreation [HPER], in the College of Education at the University of Alabama and Director of its Human Performance Laboratory since 1984. He teaches exercise physiology, his specialty, to graduate and undergraduate students and supervises research problems and theses.
During the fall of 1984 through the spring of 1987 Dr. Bishop occasionally referred to his religious beliefs during instructional time, remarks which he prefaced as personal "bias." Some of his references concerned his understanding of the creative force behind human physiology. Other statements involved brief explanations of a philosophical approach to problems and advice to students on coping with academic stresses. In response to students' questions concerning academic research, publishing, tenure, or promotion, Bishop has suggested to the students that his religious beliefs are more important than academic production, and this perspective allows him to better cope with academic stresses. He never engaged in prayer, read passages from the Bible, handed out religious tracts, or arranged for guest speakers to lecture on a religious topic during instructional time.
There are no transcriptions of Dr. Bishop's actual in-class comments. However, attached to his summary judgment motion is an affidavit wherein he affords us an approximation of his remarks.
The statement [I made to the class] was generally something like the following: ...
After giving it considerable thought, I have decided for myself when I die, I would like to leave behind something more important and valuable than a stack of technical papers. I think that people are important and eternal, paper is neither. I want to invest my time mainly in people. I personally believe God came to earth in the form of Jesus Christ and he has something to tell us about life which is crucial to success and happiness. Now this is simply my personal belief, understand, and I try to model my life after Christ, who was concerned with people, and I feel that is the wisest thing I can do. You need to recognize as my students that this is my bias and it colors everything I say and do. If that is not your bias, that is fine. You need, however to, filter everything I say with that (Christian bias) filter. If you observe something in my life that is inconsistent with Christianity, please let me know, because, I believe that it is much more important than a pile of papers.
Affidavit of Phillip A. Bishop at 2, attachment to Plaintiff's Motion for Summary Judgment, Record on Appeal, Vol. 2, Doc. 40 (Hereinafter "Bishop Affidavit").
In April 1987 Bishop organized an after-class meeting for his students and other interested persons wherein he lectured on and discussed "Evidences of God in Human Physiology." Discussion covered various aspects of the human body including the complexity of its design and operation, concluding that man was created by God and was not the by-product of evolution. The class was attended by five Bishop students and one professor.
[The University] contend[s] that the timing of the class before final exams created the possibility of a coercive effect upon his students, a situation which the Establishment Clause of the Constitution is designed to prohibit. Attendance at the class, however, was voluntary and did not affect grades. Bishop used a blind grading system.
Some of Bishop's students in the 1986-87 classes complained about [Bishop's in-class] comments and the after-class meeting to [Carl] Westerfield [Bishop's supervisor and Head of HPER]. In late August or early September 1987 Westerfield met with the Dean of the College of Education, Rodney Roth, to discuss the complaints. After deciding Bishop's statements were inappropriate, they met with University counsel September 11, 1987.
Westerfield prepared a memorandum to "Dr. Phil Bishop" concerning his conduct. The memo regards "Religious Activities in a Public Institution" and reads as follows:
Foremost, I want to reaffirm our commitment to your right of academic freedom and freedom of religious belief. This communication should not be construed as an attempt to interfere with or suppress your freedoms. From discourse with you and others, I feel that certain actions on your behalf are unwarranted at a public institution such as The University of Alabama and should cease. Among those actions that should be discontinued are: 1) the interjection of religious beliefs and/or preferences during instructional time periods and 2) the optional classes where a "Christian Perspective" of an academic topic is delivered. I must also remind you that religious beliefs and/or the strength of a belief can not be utilized in the decisions concerning the recruitment, admission or retention of graduate students.
Record Excerpt at 15. 2 (Hereinafter the "memo.") The tenor of this document demonstrates the first amendment tight rope upon which the University found itself perched. Without unnecessarily restricting the academic freedom of a faculty member, the University endeavored to avoid both Establishment Clause violations and undue pressure upon students. The University's counsel believed that under Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (), Dr. Bishop's activities did amount to such violations, thus the University refused the professor's later requests to rescind the Westerfield order. In the interim, Dr. Bishop apparently complied with the University's wishes.
In May 1988 Bishop [through letter of his counsel] petitioned the President of the University to rescind the order. [Bishop] was again advised there would be no rescission of the University prohibition and he should refrain from interjecting his religious preferences and/or beliefs not necessary to class discussion or class materials. The University viewed the holding of any optional class meeting to discuss religious implications of class material prior to the submission of final grades to be coercive and [,] therefore, prohibited.
Numerous undisputed affidavits filed indicate University policy does not prohibit faculty members from engaging in non-religious classroom speech involving personal views on other subjects. Such discussions are the norm used to establish rapport between faculty and students. There is no University policy attempting to control the statements of faculty members as long as they do their job. Nor is there a University policy prohibiting faculty members from organizing after-class meetings if discussions are not from a religious perspective. The University has no policy proscribing professor involvement in extracurricular academic discussions with students.
In light of the continued restriction of his speech in a manner apparently contradictory to the University's erstwhile declarations of academic freedom, Dr. Bishop filed suit in federal district court against the Board of Trustees of the University in their official capacities under 42 U.S.C. Sec. 1983, seeking only declaratory and injunctive relief for violations of his free speech rights by imposition of Westerfield's memo. The initial complaint also claimed that the memo was voidable for vague and overbroad restriction of his free speech rights. By amendment to his complaint, Dr. Bishop also pleaded violations of his free exercise rights and his rights under the ninth amendment. 3 In significant parts, the University's answer and amended answer generally denied any First and Ninth Amendment violations and raised the Establishment Clauses of the United States and Alabama Constitutions as affirmative defenses.
After cross-motions for summary judgment, the district court relied on Widmar v. Vincent, 454 U.S. 263...
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