Booher v. Northern Kentucky University Bd. of Regents

• Decision Date: 21 December 1998
• Docket Number: 98-6194,Nos. 98-6126,s. 98-6126
• Citation: 163 F.3d 395
• Parties: 131 Ed. Law Rep. 378 Kevin BOOHER, Plaintiff-Appellee/Cross-Appellant, v. NORTHERN KENTUCKY UNIVERSITY BOARD OF REGENTS, et al., Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 395

163 F.3d 395

131 Ed. Law Rep. 378

Kevin BOOHER, Plaintiff-Appellee/Cross-Appellant, v. NORTHERN KENTUCKY UNIVERSITY BOARD OF REGENTS, et al.,

Defendants-Appellants/Cross-Appellees.

Nos. 98-6126, 98-6194.

United States Court of Appeals, Sixth Circuit.

Dec. 21, 1998.

Ordered Published Jan. 7, 1999.

Before: MARTIN, Chief Judge; RYAN and COLE, Circuit Judges.

BOYCE F. MARTIN, JR., Chief Judge.

Pending before the court are an appeal and a cross-appeal from an order in this civil rights action granting in part, and denying in part, the defendants' motion for summary judgment and granting in part, and denying in part, plaintiff's motion for partial summary judgment. Because there are claims remaining to be adjudicated in this action, the clerk entered an order on October 1, 1998, directing the parties to show cause why their appeals, or portions thereof, should not be dismissed for lack of appellate jurisdiction. The parties have now filed their responses to that order.

The first appellate issues raised by the defendants arise from the district court's holding that they are not entitled to qualified immunity as to the plaintiff's claim that a vote of censure by the art department faculty violated the plaintiff's freedom of speech. An order denying qualified immunity is immediately appealable insofar as the appeal raises purely legal, rather than factual, issues. See Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Berryman v. Rieger, 150 F.3d 561 (6th Cir.1998). The defendants state in their response that they are willing to concede any disputed facts for the purposes of appeal, but they preface that concession with a narrative challenging several of the factual determinations underlying the district court's denial of qualified immunity. These include factual disputes as to whether university policy authorizes votes of censure by faculty members, whether the vote simply was the personal expression of faculty members concerned with departmental and professional relationships, whether the vote was intended to be disciplinary in nature, and whether the vote in fact had, or could have in the future, an adverse impact on the plaintiff's employment. ¹ In Berryman, this court stated that a defendant seeking to take an interlocutory appeal from the denial of qualified immunity "should be prepared to concede the best view of the facts to the plaintiff and discuss only the legal issues raised by the case." 150 F.3d at 564. We conclude the defendants have not made such an unqualified concession in this case.

In an unrelated claim, the defendants also appeal a holding of the district court that the university's Sexual Harassment Policy is facially unconstitutional. The plaintiff cross-appeals the companion holding that, because he did not suffer any adverse employment-related injuries, the Policy was not unconstitutional as applied to him. The defendants assert the district court's holding is an injunction that is immediately appealable under 28 U.S.C. § 1292(a)(1). The plaintiff asserts he should be permitted to pursue his appeal if the defendants' appeal is allowed to proceed.

Althou...