Gruber v. Bruce
| Decision Date | 01 December 2022 |
| Docket Number | 2:21-cv-00039 |
| Parties | DR. JULIA GRUBER AND ANDREW SMITH, Plaintiffs, v. DR. LORI BRUCE, in her official and individual capacity, Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
DR. JULIA GRUBER AND ANDREW SMITH, Plaintiffs,
v.
DR. LORI BRUCE, in her official and individual capacity, Defendant.
No. 2:21-cv-00039
United States District Court, M.D. Tennessee, Northeastern Division
December 1, 2022
MEMORANDUM OPINION
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
An internecine difference of opinion among academics at Tennessee Tech University (“TTU” or “Tech”) led to this action under 42 U.S.C. § 1983 asserting First Amendment retaliation and Fourteenth Amendment due process claims. The case arose after two faculty members were disciplined by the Provost for distributing flyers on campus that labeled another faculty member a racist. Now before the Court are fully-briefed Cross-Motions for Summary Judgment. (Doc. Nos. 60, 61, 62, 65-71, 78-83, 84, 87, 88).[1] For the reasons that follow, the Defendant's Motion for
Summary Judgment will be granted and Plaintiffs' Motion will be denied.
I. Factual Background[2]
Dr. Julia Gruber is a tenured Associate Professor of German at TTU, while Mr. Andrew Smith is a tenured Instructor in the Department of English at that institution. (PSOF ¶¶ 1, 2). Dr. Lori Bruce is the Provost at TTU and Vice President for Academic Affairs. (Doc. No. 56-9, Bruce Dep. at 22).
In 2021, a student chapter of Turning Point USA (“TPUSA”) was established at TTU. TPUSA s is a national organization with a presence at many college campuses across the United States. It came to TTU after Gittle Sciolis, a student at the school, filed a petition to make TPUSA a student club. Ms. Sciolis has described the club as a “conservative organization for college students [and] high school students” with a mission “to spread conservative ideas.” (PSOF ¶¶ 17-19). For their part, Plaintiffs believe that TPUSA is a racist organization and “national hate group” with “ties to white supremacy.” (Id. ¶ 20). Dr. Andrew Donadio (“Dr. Donadio”), a County Commissioner and an Assistant Professor of Nursing, serves as TPUSA's faculty advisor at TTTU. (Id. ¶ 3).
On February 4, 2021, the Putnam County School Board held a meeting to consider whether a committee should be appointed to look into the issue of whether Algood Middle School's mascot should be renamed from “Redskins” to something else. (Id. ¶ 4). Dr. Gruber attended the meeting with some friends, including Sayota Knight, who Plaintiffs claim is Native American. (Id. ¶ 5).
Dr. Donadio also attended the meeting. Even though he understood that some people found “Redskins” to be a racial slur, he cheered and applauded when the Board voted against forming a committee to determine whether the “Redskins” mascot should be retired. (Id. ¶¶ 9, 10). Witnessing Dr. Donadio's enthusiastic support for the Board's decision, Dr. Gruber was “shocked” and “offended.” (Id. ¶ 12). She also felt that Dr. Donadio's behavior was “intimidating” to her Native American friend because it was “racist.” (DSOF ¶ 4).
That same evening, Dr. Gruber contacted Mr. Smith by Facebook Messenger, and informed him about what she had witnessed. Upon hearing Dr. Donadio's reaction, Mr. Smith, too, became upset and dismayed. (PSOF ¶ 13).
Dr. Donadio's reaction to the Board's decision to shelf the issue about renaming the “Redskins,” coupled with his role as the faculty advisor to TPUSA, incensed Plaintiffs and prompted Mr. Smith to create the flyer that is at the heart of this lawsuit. Before discussing that flyer and its aftermath, a little background about TPUSA and its arrival at TTU is appropriate.
As noted, Plaintiffs view TPUSA as a racist organization with “a history of political and racial controversy” surrounding it. (Id. ¶ 27). They point out that “[b]efore TPUSA had an official student chapter at TTU, in the fall of 2019, TPUSA co-sponsored a campus event with the College Republicans in which an advertisement was made for a debate watch party, featuring (then-Presidential Candidate) Senator Elizabeth Warren dressed up in Native American dress, alongside derogatory comments.” (Id.).
TPUSA's intention to establish a chapter at TTU was disconcerting to some and received significant push-back. One concern was that the organization has a Professor Watchlist website, which publishes profiles of college professors, and has the stated mission to “expose and document
college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” (Id. ¶ 23). Provost Bruce viewed the watchlist as “an effort to single out individuals for the purpose of harassing them.” (Id. ¶ 24). Indeed, she and other academics had expressed concerns about how a professor would end up on the watchlist even before the organization arrived on campus. (Id. ¶ 25).
The idea of maintaining a watchlist seemingly played into a portion of the flyer created by Mr. Smith. That flyer begins by stating:
This racist college professor thought it would be a great idea to help start a Tennessee Tech chapter for this national hate group, where racist students can unite to harass threaten, intimidate, and terrorize persons of color, feminists, liberals, and the like, especially their teachers. Their organization created a national ‘Professor Watchlist' to harass and intimidate progressive educators, including many women, African-American, and Muslim professors.
This statement is followed by a large picture of Dr. Donadio sitting in a chair. After the picture, the flyer concludes with the following text:
Professor Donadio and Turning Point USA. You are on our list. Your hate & hypocrisy are not welcome at Tennessee Tech.
No Unity With Racists. Hate Speech Is Not Free Speech.
(Doc. No. 52-4).[3] The flyer was created by Mr. Smith at home using his own personal software. (PSOF ¶ 33).
Around 3:30 p.m. on February 5, 2021, Dr. Gruber placed a handful of flyers in the lounge, the auditorium (where Dr. Donadio sometimes taught classes), the kitchen, and in common areas of Bell Hall. (DSOF ¶ 8). Frank Sterling, an IT employee at the school found at least some of those
flyers and collected them. (PSOF ¶ 36; DSOF ¶¶ 10, 11). He also sent a picture of the flyer to Dr. Donadio who, in turn, sent it to Ms. Sciolis. (PSOF ¶ 39). Dr. Donadio reported the incident to the University Police Department, and a police report was written that same day, listing the “incident type” as “harassment.” (Doc. No. 72-2 at 183).
The next afternoon at around 1:20, Mr. Smith posted a flyer in the Roaden University Center (“RUC”). (PSOF ¶ 37). Two days later, on February 8, 2021, the flyer was seen by Reece Arnold, a student, and reported to campus police, who then removed it. (Id.¶ 41).
The record suggests that the flyer was not seen by many others and there is nothing to suggest that classes at TTU were canceled or rescheduled as a result of the flyer. (Id. ¶¶ 44-45). Nevertheless, and even though he would later tell the media that he was an elected official and could “take the heat,” Dr. Donadio filed a formal complaint on February 9, 2021 with TTU's Office of Human Resources against Dr. Gruber and Mr. Smith. (Doc. No. 62-14 at 2; PSOF ¶ 56). Both were notified of Dr. Donadio's complaint on February 24, 2021. (PSOF ¶ 48).
An investigation was conducted by Greg Holt, Compliance Officer and Interim Associate Vice President of Human Resources. (Doc. No. 80-8 at 2). His investigation lasted until April 14, 2021. (Id.).
On April 25, 2021, Dr. Donadio and Ms. Sciolis gave an interview on the Fox Television News show Fox & Friends, where they discussed the flyer, the university's disciplinary process, and the political tensions surrounding TPUSA's presence on campus. (Id. ¶ 51). Plaintiffs claim that, after the interview, they were placed on TPUSA's Professor Watchlist. (Id. ¶ 59). They also claim that they received a number of “hate mail” messages in both their emails and voicemail, and some such messages were sent directly to the University via its “Contact Us” form. (Id. ¶¶ 59,60).
Public opinion about Plaintiffs' actions and Dr. Donadio's reaction was not unanimous, however. For example, Alex Sloan, an alumnus, voiced the opinion that Dr. Donadio went on a “public smear campaign,” and that the “inflammatory violent propaganda targeting professors [was] wildly inappropriate and should be concerning to all academics[.]” (Id. ¶ 62).
After Holt completed his investigation, he determined that “[t]he preponderance of the evidence supports the conclusion [Plaintiffs] violated Tennessee Tech Policy 600, Code of Conduct.” (Doc. No. 62-14 at 5). That policy, in pertinent part, reads:
1. In carrying out Tennessee Tech's educational, research, and public service missions, Tennessee Tech relies on the ethical and responsible conduct of all employees. Employees are expected to conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards and to comply with applicable laws, regulations, contractual obligations, and Tennessee Tech policies.
2. Employees are expected to be committed to creating an environment that promotes academic freedom, diversity, fair treatment, and respect for all faculty, staff, students and the general public.
4. Employees are expected to maintain the highest levels of integrity and objectivity as they perform their duties. As such, employees are expected to take all reasonable precautions and seek appropriate guidance to ensure their outside interests do not place them in conflict with carrying out their duties and responsibilities to Tennessee Tech[.]
(Doc. No. 62-23 at 2-3).
In an email dated April 16, 2021 to Provost Bruce, Holt attached his report and stated that Claire Stinson, Vice President of Planning and Finance, “concurred in [his] findings and recommendations[.]” (Id. at 1). Holt also noted, however, that Plaintiffs had five days to request reconsideration,...
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