Newman v. Burgin

Decision Date11 January 1991
Docket NumberNo. 90-1739,90-1739
Parties67 Ed. Law Rep. 113 Anny NEWMAN, Plaintiff, Appellant, v. Diana BURGIN, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Daniel F. Featherston, Jr. with whom Christopher L. Maclachlan, Boston, Mass., was on brief, for plaintiff, appellant.

Lawrence T. Bench with whom William E. Searson, III, Boston, Mass., was on brief, for defendants, appellees.

Before BREYER, Chief Judge, and CAMPBELL, Circuit Judge, and CAFFREY, * Senior District Judge.

BREYER, Chief Judge.

In October 1985, the University of Massachusetts at Boston, after considerable investigation and debate, formally "censured" tenured Assistant Professor Anny Newman for "seriously negligent scholarship," amounting, it said, to "objective plagiarism." The University punished her by making her censure public and by disqualifying her for five years from serving as an administrator or a member of various academic boards.

Professor Newman then brought this federal civil-rights action, basically claiming that University officials deprived her of "liberty" or "property" without "due process of law." See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); U.S. Const. amend. XIV, Sec. 1; 42 U.S.C. Sec. 1983. This court, on an earlier appeal, held that, at a minimum, the defendants enjoyed a "qualified immunity" from Professor Newman's federal civil-rights damage claims, for, in punishing her for plagiarism, they had violated no "clearly established " federal law. Newman v. Massachusetts, 884 F.2d 19 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1132, 107 L.Ed.2d 1037 (1990); see generally Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985).

Subsequently, the district court entered summary judgment for the defendants on Professor Newman's remaining federal claim, namely her demand for an injunction. To support this demand, Professor Newman made the same basic argument, namely that the defendants deprived her of constitutionally protected "liberty" or "property" without "due process of law." But, the legal standard for assessing her argument is different. When a civil-rights plaintiff asks for damages, the defendants can assert a "qualified immunity" defense. They can argue: "Even if we acted unlawfully, we acted according to what we could then reasonably have thought was the law." See, e.g., Goyco de Maldonado v. Rivera, 849 F.2d 683, 686 (1st Cir.1988); Lugo v. Alvarado, 819 F.2d 5, 7 (1st Cir.1987). (And, that was the defense we previously upheld in this case.) When a civil-rights plaintiff asks for an injunction, however, the defendants cannot assert this "qualified immunity" defense--that they reasonably did not know their conduct was unlawful. Hence, defendants' right to summary judgment on the injunction demand depends upon what "due process" law really (and currently) is, not upon what the defendants might then reasonably have thought it. Hence, we must once again review the record, applying this stricter standard.

After reviewing Professor Newman's arguments, the record, and the law, we conclude that despite the more favorable standard, Professor Newman cannot prevail. The largely undisputed facts in the record show that the University provided her with all the "process" that is her "due." In reciting those facts, we view the record as favorably to Professor Newman as the law permits. See Fed.R.Civ.P. 56; Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 934 (1st Cir.1987).

I Background

1. The "Plagiarism." In 1983, Professor Newman published, in Festschrift fur Nikola R. Pribic (Hieronymous Verlag, Neuried 1983), a thirteen-page article about a poem (called "Suze sina razmetnoga") by a 17th-century Croatian poet, Franjin Gundulic. One of Professor Newman's colleagues, Professor Diana Burgin, thought Newman might have copied parts of it from a 1952 book (cited in the article as a source) by Vsevolod Setschkareff, Die Dichtungen Gundulics und ihr poetischer Stil (Atheneum Verlag, Bonn 1952). She brought her suspicions to the attention of the Russian Department's personnel committee. Professor Robert Spaethling, another member of the committee, after translating relevant Setschkareff passages from the German, found many similar passages in book and article.

Professor Newman's article, for example, contained the following descriptions (in English) of a series of lines quoted (in Croatian) from the poem:

This image of earthly beauty bars the sight of the supreme Good, throwing a shadow of depravity on the clean longing for Heaven: [quote].... Consequently, Gundulic paints us a picture reflecting his mystic train of thought; the sun as Divine Majesty illuminates all mankind, and His ray points to truth and heavenly justice: [quote] ... revealing itself to the sinner cloudlessly through the ray of self-recognition: [quote].... Thus the repentant sinner sees heaven's brilliant aura in contrast to earth's darkness: [quote].... A father's welcome symbolizing God's everlasting grace: [quote].... The world is superficial; the objects it admires most are like wax in the fire, smoke in the wind, snow under the sun, an arrow shot by a strong hand from a bow: [quote].... Life itself is nothing but agitated seas, a storm-tossed ship. [quote].... Man is a 'dried-up twig', whose salvation lies only in his humble penitence. Heaven's grace will make it bloom again, like a Phoenix rising from the ashes: [quote]....

Setschkareff's book refers to similar Gundulic quotations, and, in Spaethling's translation from the German, it says:

The earthly beauty is the cloud which bars us from seeing the highest "Ti si oblak, ki zastupa...." It throws a shadow on the pure longing for heaven (II, 11): ... and consequently the sun is the image of heavenly truth (III, 10), which through the ray of self-recognition (II, 18) allows the sinner to perceive its image without clouds.... Whatever the world values and holds dear is wax in the fire, smoke in the wind, snow before the sun.... an arrow shot by a strong hand, and it (the world) itself is only a burning sea, and a ship in the storm.... Man, however, after his enlightenment by heavenly grace, is a dry staff, which begins to green (III, 9), a phoenix rising from the ashes.

To take another example, at one point, Professor Newman's article says:

Gundulic sets Here as opposite to the Beyond with awesome force, and one is constantly aware of the contrast between Heaven and Earth. Good and evil appear again in the description of man's fate after death, Lament II, stanzas 48-52: [quote].... The good will find eternal blessedness in Paradise, while the evil will be damned in the darkness of a snake-infested Hell. Heightened antithesis can be found in Lament III, stanza 54, where the poet describes man's thanklessness to God: [quote]....

The Setschkareff book, as translated by Professor Spaethling, says:

Here (i.e., the earth) and There (i.e., the beyond) are placed in opposition to each other in sharpest distinction.... The poet, the person is seized with this recognition of the enormous opposition between earth and heaven. The antithesis between the good and the evil people and their fate is worked out in all details. (II, 48-52).... We find an accumulation of antitheses in Lament III, 54, where the deep ingratitude of man to God is to be described. [quote].

Spaethling found similarities of roughly this sort on about seven of the 13 pages of Professor Newman's article. Based on these similarities, personnel-committee members, in effect, charged Professor Newman with plagiarism.

Professor Newman replied that the similarities did not amount to plagiarism for several reasons. First, she said that most of the common passages simply reflected general knowledge among scholars in the field and did not require attribution. Second, she pointed out that many of the similarities consisted of paraphrases of the same lines of Croatian poetry and therefore had to resemble each other. Third, she added that her article essentially paraphrased her 1962 Harvard Master's thesis, which a noted scholar in the field had supervised and found adequate. (In fact, he had specifically told her to use Setschkareff's book as a model.) Fourth, she referred to the article's six footnotes, three of which cited to Setschkareff's book, and asked why she would have mentioned the book in the article had she intended to plagiarize from it.

2. The University's Procedures. The University investigated the plagiarism controversy, and eventually decided what action to take, roughly as follows:

a. In late 1983, members of the personnel committee told the Dean of the College of Arts and Sciences about their suspicions. The Dean then met with Professor Newman and promised to take no action until he received her written response. She submitted her response in March 1984.

b. The Dean asked two Slavic-language scholars at other universities to review the article for plagiarism. After doing so, one wrote back that the article contained "exemplary instances of plagiarism." The other said that the work was "indebted to Dr. Setschkareff's major work considerably more than formally acknowledged," but that it would be difficult to show "conscious, deliberate and outright plagiarism," as the author might have suffered simply from "lapses in awareness." The Dean asked Professor Newman if she wished to respond. (She did not do so.)

c. The Dean formed an ad hoc committee of senior Arts and Sciences faculty (the "Knight Committee," after its chairman) to investigate further and recommend punishment if warranted. The committee held hearings on May 7 and 10, 1985. It permitted Professor Newman to challenge for cause any of the committee members. It permitted her to present evidence, to call...

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