Dambrot v. Central Michigan University

• Citation: 839 F. Supp. 477
• Decision Date: 26 November 1993
• Docket Number: No. 93-CV-10117-BC.,93-CV-10117-BC.
• Parties: Keith DAMBROT, Lakeith Boyd, Leonard Bush, Marcus Culbreth, Deshanti Foreman, Keith Gilmore, Tyrone Hicks, Amere May, Plaintiffs, v. CENTRAL MICHIGAN UNIVERSITY, Leonard Plachta, Russel Herron, David Keilitz, Defendants.
• Court: U.S. District Court — Western District of Michigan

839 F. Supp. 477

Keith DAMBROT, Lakeith Boyd, Leonard Bush, Marcus Culbreth, Deshanti Foreman, Keith Gilmore, Tyrone Hicks, Amere May, Plaintiffs, v. CENTRAL MICHIGAN UNIVERSITY, Leonard Plachta, Russel Herron, David Keilitz, Defendants.

No. 93-CV-10117-BC.

United States District Court, E.D. Michigan, N.D.

November 26, 1993.

James Schuster, Southfield, MI, for plaintiffs.

Robert M. Vercruysse, Detroit, MI, Steven W. Martineau, Mt. Pleasant, MI, for defendants.

MEMORANDUM OPINION AND ORDER

CLELAND, District Judge.

I. Background

This case presents to the Court a First Amendment challenge to Central Michigan University's "discriminatory harassment policy" and a dispute over the university's decision to not renew the employment contract of its basketball coach. Plaintiff Keith Dambrot was the head basketball coach at Defendant Central Michigan University ("CMU"). Unlike the coach, most of the members of the team (and one of the assistant coaches) are black. On at least one occasion during the 1992-93 season Dambrot used the word "nigger" in a talk he gave to the players and coaching staff, addressing several players, both black and white, and one assistant coach, by the term.¹ Dambrot testified that he intended to use the term in a "positive and reinforcing" manner during this closeddoor locker room team session. There is absolutely no evidence to the contrary. Several black members of the team testified that they use the term commonly to refer to others of their race. Mr. Dambrot testified that it was his belief that the term had a positive meaning, knowing the context in which the players used the term amongst themselves; he used the term, he says, to connote someone who is "fearless, mentally strong, and tough." Plaintiffs' Supplemental Memorandum of Law on the Merits, p. 2.

Dambrot's use of the term eventually became known to certain individuals outside of the basketball team. At the request of Dambrot, Dave Keilitz, the athletic director at the university, interviewed members of the team in February, 1993. All of the black players informed him that they were not offended by their coach's use of the term. Sometime after that interview, a young man who had left the team the previous fall complained to the university's affirmative action officer of Dambrot's use of the word, claiming that he had been there during the incident.² The affirmative action officer confronted Dambrot, who admitted to using the term, though in a positive manner. The officer expressed to Dambrot her opinion that the term was incapable of being used positively and that, in any case, its use was a violation of the university's "discriminatory harassment policy." After the officer recommended that Dambrot be disciplined, and Dambrot acquiesced in lieu of a more formal investigation, he was suspended without pay for five days.

Soon after Dambrot's suspension, news of the incident spread throughout the university community. Dambrot granted an interview to the student newspaper, and an article was printed in which he told his side of the story. His statement appears to have been considerably more explanatory and defensive than apologetic in tone, and for this or other reasons some students were motivated to express indignation that Dambrot had used the term at all. A student demonstration was staged, and accounts of a "racial incident" at the university were spread through the local, regional, and national news media. On April 12, 1993 the athletic director informed Dambrot that his appointment as head coach would not be renewed for the 1993-94 season. The university contended then, and in court, that it had determined Dambrot to be no longer capable of effectively leading the men's basketball program.

The Plaintiffs began this lawsuit on April 19, 1993. Dambrot alleges that his employment was terminated because he used the term "nigger," and that the termination violated his First Amendment rights to free speech and academic freedom. He has also brought claims for violation of his due process rights, violation of the Elliott-Larsen Civil Rights Act and for defamation.³ Several members of the basketball team have joined the lawsuit alleging violations of their First Amendment rights as well.

The court granted in part and denied in part plaintiff's motion for preliminary injunction on June 17, 1993. The portion of the motion that was granted enjoined the university from enforcing its discriminatory harassment policy. Plaintiffs now seek summary judgment on plaintiffs' claims 1) that CMU's discriminatory harassment policy is facially unconstitutional and 2) that First Amendment interests were impinged when the discriminatory harassment policy was applied to Dambrot's termination. Defendants seek summary judgment on 1) plaintiffs' First Amendment claim and 2) plaintiffs' Fourteenth Amendment claim and 3) the individual defendants' claim of qualified immunity.

For the reasons expressed in this opinion, the Court GRANTS summary judgment in favor of plaintiffs with respect to the challenge to the facial unconstitutionality of the CMU discriminatory harassment policy, and will permanently enjoin the defendant university from further enforcement of such policy. The Court GRANTS summary judgment in favor of defendant university with respect to plaintiffs wrongful termination claim. Finally, the Court GRANTS summary judgment in favor of defendants with respect to plaintiffs Fourteenth Amendment claim.

II. Standing

The defendants question whether certain of the plaintiffs possess legitimate standing to bring the instant action. Defendants answer the complaint by contending that the "student plaintiffs do not have standing to seek injunctive relief ... as they have not sustained and are not immediately in danger of sustaining some direct injury.... nor do they have standing to challenge the university's decision to terminate Dambrot's employment." (Defendant's Answer, Affirmative Defenses, ¶s 3-4).

The Court recognizes that a party "has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 167, 92 S.Ct. 1965, 1968, 32 L.Ed.2d 627, 634 (1972) (guest who had never applied for membership lacked standing to challenge discriminatory membership policies, but had standing to challenge policy with respect to service of guests); Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 2326 n. 7, 33 L.Ed.2d 154, 164 (1972).

Dambrot, of course, easily meets the standing requirements as to the entire suit. The Court finds that the other plaintiffs, as team members, have standing limited to portions of the claims raised here. These players, who are also students at the university, have standing to challenge the constitutionality of the discriminatory harassment policy on its face since they might be subjected to it such that "the challenged conduct ... threatens to cause a direct injury." Doe v. University of Michigan, 721 F.Supp. 852, 859 (E.D.Mich.1989). However, they lack standing to challenge Dambrot's termination. Although the team members may be "affected," in some sense, by Dambrot's termination — he would no longer be in a position to coach or "mentor" them, for example, and they would therefore no longer receive any of the benefits that might flow from his guidance — they would not be directly affected. See, Moose Lodge, supra. Those who stand to be directly harmed by the conduct are given a voice in the courts so that those most affected by the conduct will be heard unobscured by the voices of the far larger number of those tangentially affected. These determinations do not affect the vitality of any of the counts themselves, since there is at least one proper party as plaintiff in each.

III. Summary Judgment Standard

Summary judgment is proper only where the moving party shows that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when "the record as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In the "new era" of summary judgment analysis, the Court is required to ask "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The party opposing summary judgment must present "affirmative evidence in order to defeat a properly supported motion for summary judgment." Id. at 1479, citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

IV. First Amendment Facial Challenge

A. Overbreadth

In order for a statute to be found unconstitutional on its face on overbreadth grounds, `there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court." Leonardson v. City of East Lansing, 896 F.2d 190, 195 (6th Cir.1990).

The CMU policy at issue seeks to prevent the following:

any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by (c) demeaning or slurring individuals through ... written literature because of their racial or ethnic affiliation; or (d) using symbols, epitaphs sic⁴ or slogans that infer negative connotations about an individual's racial or ethnic affiliation. Plan for Affirmative Action at Central Michigan University, Section III(b)(1), Racial and Ethnic Harassment.

The policy appears to have been drafted to include as much within its ambit as possible, and its language is sweeping indeed. With guns trained on "any ... behavior" either ...