Hardy v. Jefferson Community College

• Decision Date: 08 June 2001
• Docket Number: No. 00-5198,00-5198
• Parties: (6th Cir. 2001) Kenneth E. Hardy, Plaintiff-Appellee, v. Jefferson Community College and Kentucky Community and Technical College System, Defendants, Mary Pamela Besser and Richard Green, Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 671

260 F.3d 671 (6th Cir. 2001)

Kenneth E. Hardy, Plaintiff-Appellee, v. Jefferson Community College and Kentucky Community and Technical College System, Defendants, Mary Pamela Besser and Richard Green, Defendants-Appellants.

No. 00-5198

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 8, 2001

Decided and Filed: August 15, 2001

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[Copyrighted Material Omitted]

Glenn A. Cohen, Lise G. Buba-Kruer, Adi Trbonja, SEILLER & HANDMAKER, Louisville, Kentucky, for Appellee.

Holland N. McTyeire, Melissa Norman Bork, GREENEBAUM, DOLL & McDONALD, Louisville, Kentucky, for Appellants.

Before: KEITH, NORRIS, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Kenneth E. Hardy, a Caucasian adjunct instructor at Jefferson Community College, brought suit against the College, Kentucky Community and Technical College System, College President Richard Green, and former Acting Dean Mary Pamela Besser pursuant to 42 U.S.C.§ 1983, alleging that the defendants retaliated against him for exercising his constitutionally protected right of free speech. Following a classroom discussion examining the impact of such oppressive and disparaging words as "nigger" and "bitch," one of Hardy's African-American students complained to her minister, a local civil-rights activist. When the minister threatened that African-American enrollment would decline unless the dispute was resolved to the satisfaction of the complaining student, Hardy's teaching contract was not renewed.

The district court dismissed all of Hardy's claims against the College, as well as against Green and Besser in their official capacities, but rejected Green's and Besser's contention that they were entitled to qualified immunity in their individual capacities as a matter of law. Green and Besser now challenge that decision on interlocutory appeal. For the reasons set forth below, we AFFIRM the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

In January of 1995, Jefferson Community College hired Hardy as an adjunct instructor to teach in its communications program. He was responsible for two courses, Basic Public Speaking and Introduction to Interpersonal Communication. The College continued to renew Hardy's teaching contract each semester thereafter. He received consistently outstanding student evaluations and strong reviews from his superiors. In May of 1998, Hardy was informed that he would be assigned three sections during the upcoming fall semester, although he was not asked to sign a contract at that time.

During the summer semester of 1998, he was again teaching Introduction to Interpersonal Communication. His twenty-two students included nine African-Americans, one of Asian descent, and a foreign exchange student from Switzerland. On July 16, he presented his standard lecture on language and social constructivism, where the students examined how language is used to marginalize minorities and other oppressed groups in society. The lecture included a discussion and analysis of words that have historically served the interests of the dominant culture in which they arise. Hardy solicited from his students examples of such terms. Among their suggestions were the words "girl," "lady," "faggot," "nigger," and "bitch." According to Hardy and other members of the class, the discussion was academically and philosophically challenging. Almost every student participated in the exercise.

One African-American student, however, objected to the in-class use of the words "nigger" and "bitch," and complained to Hardy and his superiors. The student found the exercise to be in direct contravention of Hardy's stated policy prohibiting the use of offensive language in class. This policy was set forth in the written syllabus that Hardy distributed on the first day of class, which read in pertinent part as follows: "In order to make all class members comfortable enough to participate, there will be no abusive (i.e. sexist, racist, otherwise derogatory) language in discussion."

Although Hardy apologized to the complaining student for any discomfort that the class had caused her, the student contacted Reverend Louis Coleman, a local civil-rights activist, to voice her objection to the gender and racial slurs used in the class. Coleman, in turn, arranged a meeting with College President Green and the student to make Green aware of the student's complaint and to ask that "corrective action be taken." During the meeting, Coleman informed Green that he would not "allow our kids to come to an institution and be berated with the 'N' word and the 'B' word."

On July 21, 1998, former Acting Dean Besser met with Hardy to discuss the student's concerns. She specifically asked why the word "nigger" was used in class when his syllabus forbade such racist or derogatory language. Although Hardy attempted to explain that this and other words were analyzed as illustrations of highly offensive, powerful language, and that it was not used in an "abusive" manner, Besser continued to challenge Hardy regarding the classroom discussion. Hardy then asked Besser if there was anything he could do to rectify the situation. Rather than responding to his question, she informed him that a "prominent citizen" representing the interests of the African-American community had become involved and had threatened to affect the school's already-declining enrollment if corrective action was not taken.

Hardy finished teaching the course as scheduled in the summer semester. On August 23, 1998, Dr. Denise Gray, the Assistant Dean of Students for the College, wrote Hardy to inform him that the matter had been resolved to the satisfaction of the complaining student. Around the same time, Besser left a message on Hardy's home answering machine stating that "there were no classes" for him to teach in the Fall 1998 semester.

At Hardy's request, Green and Besser met with Hardy to discuss the issue in early September of 1998. They informed him that the matter had been resolved to the student's satisfaction, but they declined to elaborate further. Hardy was never again asked to teach at the College.

B. Procedural background

On July 23, 1999, Hardy filed suit pursuant to 42 U.S.C. §1983, alleging that the defendants had violated his rights under the First and Fourteenth Amendments to the United States Constitution. Hardy's complaint contended that the defendants had retaliated against him for exercising his rights of free speech and academic freedom. He also asserted several state-law causes of action, including defamation, conspiracy, breach of contract, and tortious interference with his and the College's continuing business relationship.

The defendants filed a timely motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting various grounds for dismissal. First, the College, as well as Green and Besser in their official capacities, argued that Hardy's claims were barred by the Eleventh Amendment to the United States Constitution and by sovereign immunity as provided in Section 231 of the Kentucky Constitution. Because the College is an arm of the state of Kentucky, and because any judgment against either the College or Green and Besser in their official capacities would be paid out of the state treasury, the district court granted this portion of the defendants' motions, excepting only those claims praying solely for prospective injunctive relief.

Second, Green and Besser claimed that they were entitled to qualified immunity in their individual capacities because Hardy had no constitutional right to use the "N" word and the "B" word, and that they had the right to terminate him for using such language. The district court denied their motion, holding that Hardy's speech touched upon "a matter of public concern" and that a public employee's right to speak on such matters has been clearly established by the Supreme Court. In a related ruling, the court denied the defendants' motion to dismiss Hardy's state-law conspiracy claim. Despite their argument that he had failed to allege any unlawful act that would support a conspiracy claim, the court held that, if Hardy could show that they had retaliated against him for exercising his constitutional rights, he would satisfy the state-law conspiracy requirement.

Finally, the district court determined that Hardy had failed to plead sufficient facts to support his Fourteenth Amendment equal-protection and procedural-due-process claims, or his state-law claims of defamation, tortious interference with a contractual relationship, and breach of contract. It therefore granted the defendants' motion to dismiss all of these latter claims.

Green and Besser then filed a motion to alter or amend the district court's ruling that they were not entitled to qualified immunity, asserting that "the right to free speech in the classroom setting is not clearly established." (Emphasis in original.) Again the district court denied their motion, finding the argument "to be a distinction without a difference." The court also denied Green's and Besser's motion to reconsider its ruling on Hardy's state-law conspiracy claim. Green and Besser have filed this interlocutory appeal to challenge the district court's denial of their qualified-immunity defense.

II. JURISDICTION

Under 28 U.S.C. § 1291, this court has jurisdiction to hear appeals from "final decisions" of the district court. As the Supreme Court has explained, however, "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Court emphasized, however, that appellate jurisdiction over these interlocutory...