Dambrot v. Central Michigan University

Decision Date05 June 1995
Docket NumberNos. 94-1015,94-1056 and 94-1908,s. 94-1015
Citation55 F.3d 1177
Parties, 100 Ed. Law Rep. 869, 10 IER Cases 1130 Keith DAMBROT, Plaintiff-Appellant/Cross-Appellee, Lakeith Boyd, et al., Plaintiffs/Cross-Appellees, v. CENTRAL MICHIGAN UNIVERSITY, et al., Defendants-Appellees/Cross-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Robert A. Sedler (argued and briefed), Wayne State University Law School, Detroit, MI, James Schuster (briefed), Southfield, MI, for Keith Dambrot.

Leonard M. Niehoff (briefed), Robert M. Vercruysse (argued and briefed), Bernice M. Tatarelli (briefed), Butzel, Long, Gust, Klein & Van Zile, Detroit, MI, Steven W. Martineau, Lynch, Gallagher, Lynch, Shirley & Martineau, Mt. Pleasant, MI, for Central Michigan University, Leonard E. Plachta, Russ Herron and Dave Keilitz in Nos. 94-1015 and 94-1056.

Robert M. Vercruysse (argued), Bernice M. Tatarelli, Butzel, Long, Gust, Klein & Van Zile, Detroit, MI, for Central Michigan University, Leonard E. Plachta, Russ Herron, Dave Keilitz in No. 94-1908.

Before: KEITH and NELSON, Circuit Judges; BELL, District Judge. *

KEITH, Circuit Judge.

There are two sets of plaintiffs in this case (collectively the "Plaintiffs"). The first is Keith Dambrot, ("Dambrot") former head coach of Central Michigan University's men's basketball program. The second includes five students 1--Leonard Bush, Deshanti Foreman, Keith Gilmore, Tyrone Hicks, and Amere May (collectively the "Student Plaintiffs")--who were members of the 1992-93 Central Michigan University ("CMU") men's basketball team coached by Dambrot. Defendants are CMU and Leonard E. Plachta ("Plachta"), Russ Herron ("Herron"), and Dave Keilitz ("Keilitz") officially and in their private capacities (collectively "Defendants" or "CMU"). 2 Dambrot appears before the court appealing the grant of summary judgment in favor of Defendant CMU regarding his wrongful termination claim. 3 Defendants cross-appeal the district court's grant of summary judgment in favor of Plaintiffs regarding the unconstitutionality of CMU's discriminatory harassment policy. Defendants also cross-appeal the district court's award of attorney's fees to the Student Plaintiffs. The Student Plaintiffs come before the court as cross-appellees. For the reasons stated below, we AFFIRM the district court's grant of summary judgment in favor of Plaintiffs finding the CMU discriminatory harassment policy violates the First Amendment. We also AFFIRM the district court's grant of summary judgment in favor of Defendants finding CMU's termination of Coach Dambrot's employment does not violate the First Amendment. Finally, we AFFIRM the district court's award of attorney's fees.

I. Statement of the Case

On May 12, 1991, Dambrot became the head coach of the Central Michigan University men's basketball team. His responsibilities as head coach included, among other things, offering and renewing player scholarships, deciding which players could remain on the team, determining the amount of playing time for each player and selecting assistant coaches. This lawsuit arises from events which occurred during the 1992-93 men's basketball season.

The 1992 CMU men's basketball team was made up of eleven African Americans and three Caucasians. 4 The team's full-time coaching staff included two assistant coaches, Derrick McDowell (an African American) and Barry Markwart (a Caucasian). The part-time coaching staff included one voluntary graduate assistant, Chip Wilde (a Caucasian), three managers (all Caucasian), and a professional trainer (a Caucasian).

In January of 1993, Dambrot used the word "nigger" during a locker room session with his players and coaching staff either during the halftime or at the end of a basketball game in which the team lost to Miami University of Ohio. According to Dambrot's testimony, Dambrot told the players they hadn't been playing very hard and then said "Do you mind if I use the N word?" After one or some of the players apparently indicated it was okay, Dambrot said "you know we need to have more niggers on our team.... Coach McDowell is a nigger, ... Sand[er] Scott who's an academic All-American, a Caucasian, I said Sand[er] Scott is a nigger. He's hard nose, [sic] he's tough, et cetera." He testified he intended to use the term in a "positive and reinforcing" manner. The players often referred to each other using the N-word during games and around campus and in the locker room. Dambrot stated he used the word in the same manner in which the players used the term amongst themselves, "to connote a person who is fearless, mentally strong and tough."

Prior to the January incident, the record shows Dambrot had used the N-word on at least one other occasion. In November, Dambrot apparently addressed the team after a practice and said he wanted the players to 'play like niggers on the court' and wished he had more niggers on the basketball court. He then said he did not want the team to act like niggers in the classroom. When asked why he made these statements Dambrot stated:

Well, that's really a very easy question for me to answer, because we had had an incident early in the year where we had five or six basketball players, some of our bigger kids on our team, in a math class. And our kids were aggressive, tough, you know, a little bit loud, abrasive. And the lady was intimidated, because it was the first year that she ever had taught. And they almost got kicked out of the math class. A matter of fact, Dave Keilitz, myself, Pat Podoll, Doug Nance, who is the faculty rep, and then the head of the department,--I don't remember his name--the math department, met and discussed the situation. And it was my feeling that you can't be aggressive, tough, hard-nosed, abrasive in class, or you're going to get thrown out of classes, especially at a school like Central Michigan where the faculty members don't understand a lot about black people or have many black people in class. And I think our players understood what I meant by, "Don't be niggers in the classroom."

JA at 504.

The news Dambrot had used the N-word in the locker room incident became known to persons outside the basketball team. In February 1993, Keilitz interviewed members of the men's basketball team at Dambrot's request. Keilitz reported all the African American players he interviewed said they were not offended by the coach's use of the term. At some point after those interviews, a former member of the men's basketball team, Shannon Norris, complained to the university's affirmative action officer, Angela Haddad, regarding Dambrot's use of the N-word during the November incident. The affirmative action officer confronted Dambrot who admitted using the word but stated he used it in a positive manner. The officer viewed Dambrot's use of the word as a violation of the university's discriminatory harassment policy and recommended Dambrot be disciplined. Dambrot accepted the proposed disciplinary action in lieu of a more formal investigation and was suspended without pay for five days.

News of the locker room incident spread through the campus after Dambrot was suspended. An article in the student newspaper was printed in which Dambrot told his side of the story. The statement was characterized by the district court as "considerably more explanatory and defensive than apologetic in tone." Dambrot, 839 F.Supp. at 478. Students staged a demonstration and local, regional and national news media reported accounts of the incident at CMU.

On April 12, 1993, Keilitz, the athletic director, informed Dambrot he would not be retained as head coach for the 1993-94 season. The university stated that it believed Dambrot was no longer capable of effectively leading the men's basketball program.

Dambrot instituted a lawsuit on April 19, 1993, alleging, inter alia, he was fired because he used the term "nigger," and the termination violated his First Amendment rights to free speech and academic freedom. Several members of the basketball team joined the lawsuit alleging the university's discriminatory harassment policy was overbroad and vague and violated their First Amendment rights.

On June 17, 1993, the district court granted in part Plaintiffs' motion for preliminary injunction. The preliminary injunction enjoined the university from enforcing its discriminatory harassment policy. On July 16, 1993, Plaintiffs and Defendants moved for summary judgment. A motion hearing was held on September 21, 1993. Judge Robert H. Cleland rendered his decision in a written opinion and order on November 26, 1993. Dambrot v. Central Mich. Univ., 839 F.Supp. 477 (E.D.Mich.1993). As was stated above, the district court granted Student Plaintiffs' motion for summary judgment holding the university's discriminatory harassment policy was facially unconstitutional. The district court also granted Defendants' motion for summary judgment holding Dambrot was not wrongfully terminated.

Dambrot filed a notice of appeal on December 23, 1993. On December 27, 1993, Plaintiffs filed a motion for attorney's fees. On January 4, 1994, Defendants filed a notice of cross-appeal. On June 20, 1994, the district court granted Plaintiffs' motion for attorney's fees. Defendants appealed the grant of attorney's fees to Plaintiffs the same day.

II. Discussion

Defendants appeal the district court's grant of summary judgment holding the CMU discriminatory harassment policy overbroad and void for vagueness violating the First Amendment. Plaintiffs appeal the district court's grant of summary judgment holding CMU's termination of Dambrot did not violate the First Amendment. Defendants also appeal the district court's award of attorney's fees to Plaintiffs. For the following reasons we AFFIRM the district court on each issue.

A. The District Court Did Not Err in Granting Summary Judgment For Plaintiffs Finding the CMU Discriminatory Harassment Policy Unconstitutional.
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