Cohen v. San Bernardino Valley College

• Decision Date: 14 April 1995
• Docket Number: No. CV-94-1083-RSWL-GHKx.,CV-94-1083-RSWL-GHKx.
• Citation: 883 F. Supp. 1407
• Court: U.S. District Court — Central District of California
• Parties: Dean COHEN, Plaintiff, v. SAN BERNARDINO VALLEY COLLEGE et al., Defendants.

883 F. Supp. 1407

Dean COHEN, Plaintiff, v. SAN BERNARDINO VALLEY COLLEGE et al., Defendants.

No. CV-94-1083-RSWL-GHKx.

United States District Court, C.D. California.

April 14, 1995.

COPYRIGHT MATERIAL OMITTED

Rohde & Victoroff, Stephen F. Rohde and John W. Howard, Individual Rights Foundation, Los Angeles, CA, for plaintiff.

Phillip L. Kossy, Littler Mendelson Fastiff Tichy & Mathiason, San Diego, CA, and Amy Greyson, Brunick Alvarez & Battersby, San Bernardino, CA, for defendants.

OPINION

LEW, District Judge.

Pursuant to Fed.R.Civ.P. 65(a), the parties in this case have stipulated to a bench trial in this matter based solely on a stipulated record and written briefs. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367.

Plaintiff Dean Cohen ("Cohen") brings a 42 U.S.C. § 1983 action for violation of his First Amendment rights. He asks the Court to grant injunctive relief against various officials of San Bernardino Valley College (Defendants are hereinafter collectively referred to as "the College"). This action presents the question of whether a state college may limit the classroom speech of its professors in order to prevent the creation of a hostile, sexually discriminatory environment for its students. The Court hereby rules that a state college may do so, if the limitations involved are reasonable and narrowly tailored to achieve the college's mission of effectively educating its students. Plaintiff therefore receives no relief in this action.

I. Facts¹

The following facts are uncontroverted. Cohen is a tenured professor who has taught English and Film Studies at San Bernardino Valley College ("SBVC") since 1968. In the spring of 1992, Cohen taught a remedial English class (English 015) to community college students. Students are required to take English 015 as a prerequisite to other college-level English classes such as English 101. This matter arises out of discipline imposed on Cohen for his teaching in a 015 class in the spring semester of 1992.

By his own admission, Cohen uses a confrontational teaching style designed to shock his students and make them think and write about controversial subjects. He assigns provocative essays such as Jonathan Swift's "A Modest Proposal" and discusses subjects such as obscenity, cannibalism, and consensual sex with children.² At times, Cohen uses vulgarities and profanity in the classroom.

One of the students in the spring semester English 015 class, Anita Murillo, became offended by Cohen's repeated focus on topics of a sexual nature, his use of profanity and vulgarities, and by his comments which she believed were directed intentionally at her and some other female students in a humiliating and harassing manner. In February of 1992, Cohen began a class discussion in his English 015 class on the issue of pornography and played the "devil's advocate" by asserting controversial viewpoints. During classroom discussion on this subject, Cohen stated in class that he wrote for Hustler and Playboy, and he read some articles out loud in class.³ Cohen concluded the class discussion by requiring his students to write essays defining pornography. When Cohen assigned the "Define Pornography" paper, Murillo asked for an alternative assignment but Cohen refused to give her one.

According to Murillo, Professor Cohen then told her that if she met him in a bar he would help her get a better grade. She also claimed that Cohen would look down her shirt, as well as the shirts of other female students, and that he told her she was over-reacting because she was a woman.

Murillo stopped attending Cohen's class and received a failing grade for the semester. She subsequently complained about Cohen's statements and conduct to the chair of the English Department, asserting that Cohen had sexually harassed her. Murillo then filed a formal written student grievance against Cohen on May 12, 1993.

On May 26, 1993, the SBVC Faculty Grievance Committee held a hearing to determine whether Murillo's complaint was well-founded. Both Cohen and Murillo testified, submitted documents, and called witnesses on their own behalf. At the conclusion of the hearing, the Grievance Committee found that Professor Cohen had violated the Community College District's policy against sexual harassment by creating a hostile learning environment.⁴ The Grievance Committee then recommended certain disciplinary action to the President of the District.

The President of the District then issued a ruling which found Cohen in violation of the District's policy against sexual harassment. Among other things, the President found that Cohen engaged in "sexual harassment which had the effect of unreasonably interfering with an individual's academic performance or creating an intimidating, hostile or offensive work environment." In addition, the President found that Cohen made "sexually suggestive" remarks to Murillo and that several students were offended by Professor Cohen's use of profanity and frequent use of sexual topics in class.

Both Cohen and Murillo appealed the President and Grievance Committee's decision to the San Bernardino Community College Board of Trustees ("Board") which considered the matter at hearings on October 15, 1993 and November 11, 1993. Cohen and Murillo were represented by attorneys and each of them testified on their own behalf. In addition, students came forward to testify about the sexual nature of Cohen's teaching material and his frequent use of derogatory language, sexual innuendo, and profanity.

On November 17, 1993, the Board found that Cohen engaged in sexual harassment which unreasonably interfered with an individual's academic performance and created an intimidating, hostile, or offensive learning environment. The Board then ordered Cohen to:

1. Provide a syllabus concerning his teaching style, purpose, content, and method to his students at the beginning of class and to the department chair by certain deadlines;

2. Attend a sexual harassment seminar within ninety days;

3. Undergo a formal evaluation procedure in accordance with the collective bargaining agreement; and

4. Become sensitive to the particular needs and backgrounds of his students, and to modify his teaching strategy when it becomes apparent that his techniques create a climate which impedes the students' ability to learn.

Thereafter, on February 18, 1994, Cohen filed a suit under 42 U.S.C. § 1983 against the San Bernardino Valley College Board of Trustees, the Chancellor of SBVC, the President of SBVC, various SBVC department heads, and members of the Faculty Grievance Committee. The complaint sought a declaratory judgment, a preliminary and permanent injunction, damages, and attorneys' fees. On April 4, 1994, this Court denied Cohen's motion for a preliminary injunction, on the grounds that Cohen failed to show a likelihood of success on the merits. On July 18, 1994 this Court also dismissed entity defendants San Bernardino Valley College, the Board of Trustees of San Bernardino Community College District, and the Faculty Grievance Committee, on the grounds that the entity defendants enjoy Eleventh Amendment immunity and are not considered "persons" under 42 U.S.C. § 1983.⁵ On October 31, 1994, the Court ruled that the individual defendants are entitled to qualified immunity from damages under § 1983.

II. The SBVC Policy As Applied to Cohen Does Not Violate the First Amendment

The heart of this suit is Cohen's assertion that the College's sexual harassment policy violates the First Amendment to the United States Constitution and Article I, § 2(a) of the California Constitution.⁶ Cohen's position implicates the current debate concerning the need to make workplaces and schools places of inclusion, and the need to preserve individual liberties.⁷

A. Academic Freedom Doctrine

Cohen argues that his right to "academic freedom" prevents the College from punishing him for his classroom speech. In support of his argument, Cohen cites numerous cases. The concept of academic freedom, however, is more clearly established in academic literature than it is in the courts. See generally Symposium, Academic Freedom in a Changing Society, 66 Texas L.Rev. 1247 (1988). As one commentator has written,

The First Amendment protects academic freedom. This simple proposition stands explicit or implicit in numerous judicial opinions, often proclaimed in fervid rhetoric. Attempts to understand the scope and foundation of a constitutional guarantee of academic freedom, however, generally result in paradox or confusion. The cases, shorn of panegyrics, are inconclusive, the promise of their rhetoric reproached by the ambiguous realities of academic life.

The problems are fundamental: There has been no adequate analysis of what academic freedom the Constitution protects or of why it protects it. Lacking definition or guiding principle, the doctrine floats in the law, picking up decisions as a hull does barnacles.

J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment", 99 Yale L.J. 251, 252-53 (1989).

Several courts have noted that judicial application of this doctrine is far from clear. Hillis v. Stephen F. Austin State Univ., 665 F.2d 547, 552-53 (5th Cir.), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); Mahoney v. Hankin, 593 F.Supp. 1171, 1174 (S.D.N.Y.1984) (stating that the parameters of academic freedom "are not well-defined, especially with regard to a teacher's speech within the college classroom").

While Supreme Court cases contain strongly worded defenses of "academic freedom," their rhetoric is broader than their holdings. Namely, many cases restrict the government from regulating teachers' non-classroom conduct. For example, teachers like other government employees cannot be punished or excluded under unconstitutional statutes requiring them to take "loyalty oaths" or otherwise disclose their allegiance to "subversive" groups. Sweezy v. New Hampshire, 354...