Dibona v. Matthews

• Decision Date: 30 May 1990
• Docket Number: No. D009704,D009704
• Citation: 269 Cal.Rptr. 882,220 Cal.App.3d 1329
• Court: California Court of Appeals Court of Appeals
• Parties: , 60 Ed. Law Rep. 559 Alan DiBONA, et al., Plaintiffs and Appellants, v. Robert L. MATTHEWS, et al., Defendants and Respondents.

Page 882

269 Cal.Rptr. 882

220 Cal.App.3d 1329, 60 Ed. Law Rep. 559

Alan DiBONA, et al., Plaintiffs and Appellants, v. Robert L. MATTHEWS, et al., Defendants and Respondents.

No. D009704.

Court of Appeal, Fourth District, Division 1, California.

May 30, 1990.

Review Denied July 25, 1990.

Laura Whitcomb Halgren, Lois M. Kosch, Gray, Cary, Ames & Frye and Betty Wheeler, San Diego, for plaintiffs and appellants.

Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy County Counsel and Donal M. Hill, Deputy County Counsel, for defendants and respondents.

WIENER, Acting Presiding Justice.

Plaintiffs Alan DiBona and J. Scott Gundlach, a college teacher and student respectively, appeal following the entry of summary judgment in favor of defendants Robert Matthews and James Hardison, administrators with the San Diego Community College District. Plaintiffs claim there are issues of fact which remain to be litigated in their claim that defendants violated their constitutional rights by cancelling a drama class because of the subject matter of the play DiBona had selected for the students to perform. We agree and reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in the light most favorable to the plaintiffs, the record before the court on the motion for summary judgment reveals the following story. The Educational Cultural Complex (ECC) is a branch of the San Diego Community College District located in Southeast San Diego. ECC offers college and adult education courses. Alan DiBona began teaching at ECC on a part-time basis in the fall of 1985. He taught the Drama 250 course during the fall and spring semesters and was asked to again teach the same course for the summer session. The curriculum for Drama 250 requires that the students produce and perform a play.

Although his formal teaching contract for the summer was not signed until April 1986, DiBona began to prepare for the class in March. He selected a play written by Dennis McIntyre entitled "Split Second." The play concerns a Black New York City police officer who, in the course of a routine arrest of a White suspect, is subjected to a flurry of racial slurs and epithets. In a split-second loss of control, the officer shoots and kills the suspect. He then places a knife in the hand of the victim and fabricates a story that the shooting was in self-defense. According to DiBona, "[t]he play centers around the morality of [the officer's] actions, exploring one man's rationalization of why he should not tell the truth and the repercussions of his decision."

ECC does not require that teachers obtain the approval of the college administration for plays to be performed in drama classes. DiBona nonetheless gave a copy of the script to Sylvia M'Lafi Thompson, the ECC Cultural Affairs Advisor, and discussed the content of the play with defendant Robert Matthews, the ECC President. In late May, DiBona made copies of the play available to students interested in taking the class.

Summer session classes were scheduled to begin at ECC on Monday, June 16. DiBona made special arrangements for the class to begin meeting on Monday, June 9. Over the course of the week auditions were held. By Friday, June 13, DiBona and plaintiff Scott Gundlach--an ECC student and the play's assistant director--had selected and notified the cast. Other students were assigned technical functions such as lighting and costumes.

Approximately 14 students met on Saturday to do an initial read-through of the play. Only two or three were formally enrolled in Drama 250 at that point. The remainder including Gundlach signed "add" cards on Saturday. Defendant James Hardison, the Dean of Arts and Sciences at ECC, conceded it was generally understood that students did not pre-enroll for drama classes because most preferred to wait for the results of the auditions before deciding whether to take the class. DiBona collected the "add" cards and instructed the students to bring any necessary additional fees to class on Monday. ¹ He indicated he would submit everything to the registrar's office on Monday evening.

On Monday morning June 16, Matthews received a call from the past president of ECC informing him that certain church leaders in the community were upset about the "Split Second" play and asking him to look into it. Matthews spoke with DiBona at about 2:30 that afternoon. He explained he had received some phone calls which included "negative remarks about the proposed production" and indicated "there might be some unrest" as a result of the play. Matthews told DiBona he "was not prepared or had no desire to take on our religious community, ..." At Matthews' request, DiBona provided him with a copy of the play. Matthews quickly skimmed the script, focusing on the first two scenes. He concluded the plot "was weak, and that the language was inappropriate in an educational setting." Meeting with DiBona a few minutes later, Matthews expressed his opinion that "this play would not be produced publicly at [ECC]." He refrained At about 5 p.m. Matthews met with DiBona, Gundlach, and two other students interested in working on the play. ² Although he had still not read the bulk of the script, Matthews reiterated his concerns with the "community opposition" to the play. According to DiBona, "He told me ... that he didn't want organized opposition from the ministers of the community and that he was responsible to the community ... and that he felt that the language was unacceptable for [ECC]." DiBona and the students attempted to explain that while the language in the first scene was strong, it was appropriate given the theme of the entire play. Matthews agreed to read the complete script that night.

from further comment because he wanted to consult with Dean Hardison.

The class met as scheduled Monday evening. DiBona and Gundlach briefed the class on their meeting with Matthews, explaining that for the time being, the play was "on hold." DiBona suggested it was pointless to submit the "add" cards and additional fees to the registrar pending resolution of the controversy. The students discussed potential alternatives open to them and whether the administration reaction had been influenced by the Sagon Penn case currently being tried in San Diego County Superior Court. ³

Sometime on Monday or Tuesday, Matthews asked Hardison to read the play. When they discussed the issue again, they agreed the play was inappropriate for presentation at ECC. Hardison termed the characters "a little weak," the plot "anticlimatic," and concluded "it's not very uplifting." He thought "Split Second" "would [not] fit into the category of ... Tennessee Williams or any of the [sic] George Bernard Shaw's works, in my opinion. Just is not of that caliber." Matthews suggested that Hardison talk to DiBona.

DiBona spoke with Hardison on Tuesday evening. ⁴ According to DiBona, "Hardison ... told me the decision to cancel the class was due to the sensitivity of the community to the subject matter. [He] said perhaps the play would do well in La Jolla, but not in Southeast San Diego. Hardison said the community needed to be uplifted, and suggested the class put on 'The Wiz.' " ⁵ DiBona declined Hardison's suggestion to use another play, pointing out that he had been preparing "Split Second" for months. He then asked whether it would be possible to conduct the class and perform the play privately so that the students could receive credit. Hardison said he would check with Matthews. The next evening, Hardison told DiBona he and Matthews had decided there would be no class with "Split Second" as the subject matter.

At about this same time, Hardison received a list of classes at ECC with insufficient enrollment. The Drama 250 class was included on this list because only three students were officially registered. As noted previously, due to the controversy over "Split Second" DiBona had never submitted After the administration decision was communicated to the students, they decided to rehearse and perform the play off-campus. None of the students including Gundlach received course credit and DiBona was not paid pursuant to his contract for teaching a summer session course.

                the "add" cards for 11 of the 14 students to the registrar's office.  (See ante, p. 885.)   Hardison testified it was the "general practice" at ECC to drop classes with less than 10 students.  ECC records reflect that Drama 250 was cancelled on Tuesday, June 17.  DiBona stated and Hardison confirmed, however, that Hardison never mentioned class enrollment during their discussions.  In fact, DiBona never heard the class had been cancelled due to low enrollment until after this litigation began
                

DiBona and Gundlach filed this action alleging violation of their constitutional rights and seeking declaratory and injunctive relief. At that time, DiBona was no longer a teacher and Gundlach no longer a student at ECC. DiBona, however, was employed as a teacher at the City College campus of the San Diego Community College District. Gundlach was enrolled as a student at the District's Mesa College campus.

Matthews and Hardison moved for summary judgment arguing that the case was moot, that DiBona and Gundlach lacked standing, and that there was no violation of plaintiffs' constitutional rights. The trial court agreed with defendants, reasoning as follows:

"[A]fter going through it very carefully, I just feel that the defense position, with regard to the fact that there is no justiciable issue, is appropriate under these circumstances, that to ... render an opinion would be contrary to the law's admonition that we not engage in moot acts or advisory opinions.

"I further agree with the position which is espoused in the moving papers ... that there is no standing with regard to the remaining parties....

"And then, finally, I found the argument persuasive that this really didn't involve a violation or an improper ... impact on the First...