Buchanan v. Alexander

• Decision Date: 22 March 2019
• Docket Number: No. 18-30148,18-30148
• Citation: 919 F.3d 847
• Parties: Teresa BUCHANAN, Plaintiff - Appellant v. F. King ALEXANDER; Damon Andrew; A. G. Monaco; Gaston Reinoso, Defendants - Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

919 F.3d 847

Teresa BUCHANAN, Plaintiff - Appellant

v.F. King ALEXANDER; Damon Andrew; A. G. Monaco; Gaston Reinoso, Defendants - Appellees

No. 18-30148

United States Court of Appeals, Fifth Circuit.

FILED March 22, 2019

Robert Corn-Revere, Esq., Ronald London, Lisa Beth Zycherman, Davis Wright Tremaine, L.L.P., Washington, DC, for Plaintiff-Appellant.

Sheri Marcus Morris, Esq., Daigle, Fisse & Kessenich, Baton Rouge, LA, Carlton Jones, III, Louisiana State University Office of General Counsel, Baton Rouge, LA, for Defendants-Appellees.

Nicholas J. Enoch, Attorney, Lubin & Enoch, P.C., El Paso, TX, for Amicus Curiae American Association of University Professors.

Travis Christopher Barham, Alliance Defending Freedom, Lawrenceville, GA, for Amici Curiae National Association of Scholars and Alliance Defending Freedom.

Niles Stefan Illich, Niles Illich, Dallas, TX, for Amici Curiae Alliance Defending Freedom, National Coalition Against Censorship, Woodhull Freedom Foundation, Richard Fossey and David Bloomfield.

Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.

WIENER, Circuit Judge

Plaintiff-Appellant Dr. Teresa Buchanan ("Dr. Buchanan") was fired from her tenured professorship by the Board of Supervisors ("the Board") of Louisiana State University and Agricultural and Mechanical College ("LSU") in June 2015. In January 2016, Dr. Buchanan filed the instant lawsuit against (1) F. King Alexander ("President Alexander"), President and Chancellor of LSU; (2) Damon Andrew ("Dean Andrew"), Dean of the College of Human Sciences and Education at LSU; (3) A.G. Monaco ("Vice Chancellor Monaco"), Vice Chancellor of the Office Human Resource Management at LSU; and (4) Gaston Reinoso ("Director Reinoso"), Director of the Office of Human Resource Management and Executive Director of Equal Employment Opportunities at LSU (collectively "Defendants"). Dr. Buchanan alleged (a) that Defendants violated her First and Fourteenth Amendment right to free speech and academic freedom (the "as-applied challenge"), (b) that Defendants violated her Fourteenth Amendment procedural and substantive due process rights, and (c) a facial challenge to LSU’s sexual harassment policies (the "facial challenge"). Dr. Buchanan sought reinstatement and declaratory and injunctive relief. On cross-motions for summary judgment, the district court granted Defendants’ motion and dismissed Dr. Buchanan’s claims. Dr. Buchanan now appeals that decision.

I. FACTS AND PROCEEDINGS

A. Factual Background

Before she was fired, Dr. Buchanan was an associate professor at LSU with tenure. She taught in the Early Childhood Program for teacher education. In November 2013, LSU received a complaint from the superintendent of a local public school district regarding Dr. Buchanan’s "professionalism and her behavior" when she visited schools in his district. LSU also received complaints from some of Dr. Buchanan’s students regarding her classroom behavior. One student complained about Dr. Buchanan’s comments regarding the student’s sexual relationship with her fiancé.¹ Another student complained that Dr. Buchanan recorded her crying during an assessment team meeting.² LSU had received a letter in 2012 from a group of students complaining that Dr. Buchanan made offensive classroom comments, such as (1) "a woman is thought to be a dike if she wears brown pants"; (2) "it was a choice to be in the program and it was not the fault or problem of the professors if any of us chose to be mommies or wives and not to expect to get an A in the class"; and (3) use of "extreme profanity on a regular basis."

These complaints were reported to Associate Dean Jennifer Curry ("Dean Curry") who discussed them with Dr. Earl Cheek ("Dr. Cheek"), Director of the College of Education. After learning of these incidents, Dean Andrew directed Dean Curry to gather the complaints; he then consulted with Human Resources.³ In December 2013, Dean Andrew told Dr. Buchanan that she would be removed from the classroom during a human resources investigation. Director Reinoso investigated to determine whether Dr. Buchanan had violated LSU policies, interviewed witnesses, and wrote a report. Dean Andrew reviewed Director Reinoso’s report and recommended appointment of a Faculty Senate Grievance Committee ("Faculty Committee") under LSU’s Policy Statement-104 for Dismissal for Cause of Faculty. In January 2014, Dr. Buchanan met with Director Reinoso and other human resources managers to discuss the complaints.

In May 2014, Director Reinoso sent a memorandum to Dr. Buchanan which stated that he found her "actions and behavior ... inappropriate, unwelcome, and a direct violation of the University’s Policy Statements on Sexual Harassment, PS-73 and PS-95" and her "reported communication style with students, faculty, and outside administrators ... to be inappropriate." In June 2014, Dean Andrew met with Dr. Buchanan to discuss Director Reinoso’s report, and they subsequently communicated about the report in writing. In July 2014, Dean Andrew recommended to Provost Stuart Bell that Dr. Buchanan be dismissed for cause. Provost Bell then requested and impaneled a Faculty Committee.

In March 2015, the Faculty Committee held a lengthy hearing regarding Dr. Buchanan’s classroom behavior. The Faculty Committee concluded that Dr. Buchanan had violated LSU’s sexual harassment policies, PS-73 and PS-95, "through her use of profanity, poorly worded jokes, and sometimes sexually explicit ‘jokes.’ " The Committee also found that Dr. Buchanan had created a "hostile learning environment." The Committee recommended censure.

In April 2015, despite the Faculty Committee’s censure recommendation, President Alexander informed Dr. Buchanan that he was going to recommend to the Board that she be dismissed for cause and violations of LSU’s policies and the Americans with Disabilities Act ("ADA").⁴ Dr. Buchanan appealed this recommendation and addressed the Board. The Board fired Dr. Buchanan in June 2015.

B. Procedural Background

Dr. Buchanan filed this lawsuit after she was fired. The parties filed cross-motions for summary judgment. The district court denied Dr. Buchanan’s motion and granted Defendants’ motion, holding that: (1) for purposes of these Defendants’ qualified immunity, liability for retaliation in violation of the First Amendment based on a defendant’s merely causing an adverse employment action was not clearly established, (2) there was no evidence of a violation of Dr. Buchanan’s First Amendment right to academic freedom, (3) LSU’s sexual harassment policies were not facially overbroad, (4) LSU’s sexual harassment policies as applied to Dr. Buchanan did not violate her First Amendment rights, and (5) Defendants did not violate Dr. Buchanan’s right to procedural due process.⁵ Dr. Buchanan now appeals the district court’s denial of her facial and as-applied challenges to LSU’s sexual harassment policies and the district court’s holdings that Defendants are not personally liable.

II. LAW AND ANALYSIS

A. As-Applied Challenge

When a litigant brings both as-applied and facial challenges, we generally decide the as-applied challenge first because it is the narrower consideration.⁶ The Fifth Circuit reviews summary judgments de novo⁷ and cases raising First Amendment issues by examining the whole record.⁸

The Supreme Court has established that academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."⁹ Accordingly, "classroom discussion is protected activity."¹⁰ However, even this protection has limits: Students, teachers, and professors are not permitted to say anything and everything simply because the words are uttered in the classroom context.¹¹

Public university professors are public employees. To establish a § 1983 claim for violation of the First Amendment right to free speech, they must show that (1) they were disciplined or fired for speech that is a matter of public concern, and (2) their interest in the speech outweighed the university’s interest in regulating the speech.¹² The first question, asking whether the professor’s speech is protected as a matter of public concern, is a question of law.¹³

The inquiry into whether Plaintiff’s interests in speaking outweigh the College’s interests in regulating Plaintiff’s speech is a factual determination conducted under the well known Pickering [- Connick ] balancing test. ... If Plaintiff’s interests in the prohibited speech outweigh the College’s interests, then Plaintiff’s First Amendment rights have been violated. ... If the First Amendment violation was a substantial or motivating factor in Defendants’ disciplinary action against Plaintiff, Defendants may present evidence that they would have disciplined Plaintiff in the absence of his protected conduct. ... However, if Plaintiff’s speech does not involve a matter of public concern, it is unnecessary for the court to scrutinize the reason for the discipline.¹⁴

If Dr. Buchanan did not speak as a citizen on a matter of public concern, then she has no First Amendment claim for LSU’s response to her speech.¹⁵ "[W]hether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record."¹⁶ "Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community."¹⁷ When a public employee speaks in his capacity as an employee and on personal matters, rather than in his capacity as a citizen on a matter of public interest, his speech falls outside the protection of the First Amendment.¹⁸ A mere element of personal concern, however, does not prevent finding that an employee’s speech as a whole includes a matter of public concern.¹⁹

We agree with the district court here that Dr. Buchanan’s use of profanity and discussion of her sex life and the sex lives of her students was not related to the subject matter or...