Jeffries v. Harleston

• Decision Date: 04 April 1995
• Docket Number: D,No. 953,953
• Parties: , 99 Ed. Law Rep. 754, 10 IER Cases 806 Leonard JEFFRIES, Plaintiff-Appellee, v. Bernard HARLESTON, individually and in his official capacity as president of City College of New York, W. Ann Reynolds, individually and in her official capacity as Chancellor of City University of New York, James P. Murphy, Edith B. Everett, Herman Badillo, Sylvia Bloom, Gladys Carrion, Louis C. Cenci, Michael J. Del Guidice, Stanley Fink, William R. Howard, Harold M. Jacobs, Susan Moore Mouner, Calvin O. Pressley, and Thomas Tam, individually and in their official capacities as Trustees of City University of New York, Defendants-Appellants, Blanche Bernstein, Defendant. ocket 93-7876.
• Court: U.S. Court of Appeals — Second Circuit

Page 9

52 F.3d 9

63 USLW 2637, 99 Ed. Law Rep. 754, 10

IER Cases 806

Leonard JEFFRIES, Plaintiff-Appellee, v. Bernard HARLESTON, individually and in his official capacity as president of City College of New York, W. Ann Reynolds individually and in her official capacity as Chancellor of City University of New York, James P. Murphy, Edith B Everett, Herman Badillo, Sylvia Bloom, Gladys Carrion, Louis C. Cenci, Michael J. Del Guidice, Stanley Fink, William R Howard, Harold M. Jacobs, Susan Moore Mouner, Calvin O Pressley, and Thomas Tam, individually and in their official capacities as Trustees of City University of New York, Defendants-Appellants, Blanche Bernstein, Defendant.

No. 953, Docket 93-7876.

United States Court of Appeals, Second Circuit.

Argued Jan. 21, 1994.

Decided April 18, 1994.

Vacated Nov. 14, 1994.

Decided April 4, 1995.

Kathie Ann Whipple, Acting Bureau Chief, Office of Atty. Gen., State of N.Y. (Dennis C. Vacco, Atty. Gen., State of N.Y., of counsel), for defendants-appellants.

Joseph Fleming, New York City, for plaintiff-appellee.

Sheldon D. Camhy, Camhy Karlinsky & Stein, New York City, for amicus curiae Anti-Defamation League.

Kenneth S. Stern, Samuel Rabinove, Wendy Lecker, Penina Goldstein, New York City, for amicus curiae The American Jewish Committee.

Arthur L. Galub, New York City, for amicus curiae University Faculty Senate.

Henry Mark Holzer, Karen Johnson, Brooklyn, NY, for amicus curiae The Individual Rights Foundation.

Before: VAN GRAAFEILAND and McLAUGHLIN, Circuit Judges, and BURNS, District Judge. ^*

McLAUGHLIN, Circuit Judge:

In Jeffries v. Harleston, 21 F.3d 1238 (2d Cir.1994), we affirmed the district court's judgment that 15 university officials violated the First Amendment rights of a professor, Leonard Jeffries, by reducing his term as a department chairman because of a controversial speech (the "Albany speech") he had given off campus. Our decision rested on what we understood to be the applicable rule that the government cannot take action against an employee for speaking on public issues, unless it first shows that the speech actually "impaired the efficiency of government operations." Id. at 1245. We also vacated the part of the judgment that found six of the defendants liable for punitive damages, as the jury's special verdict responses were "hopelessly irreconcilable" on whether these defendants harbored the necessary evil motives. Id. at 1250.

A month after our decision in Jeffries, the United States Supreme Court decided Waters v. Churchill, 511 U.S. ----, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). A four-justice plurality in Waters held that the government could fire an employee for disruptive speech based on its reasonable belief of what the employee said, regardless of what was actually said. See Waters, 511 U.S. at ----, 114 S.Ct. at 1889. In addition, when weighing the value of the employee's speech against the interference with government operations, the Waters plurality also indicated that a government employer need only show that the speech is likely to be disruptive before the speaker may be punished. See id. at ----, ----, 114 S.Ct. at 1887, 1890.

The Jeffries defendants, relying on Waters, petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted certiorari, and, without comment, vacated Jeffries and remanded to us for reconsideration in light of Waters. See Harleston v. Jeffries, --- U.S. ----, ----, 115 S.Ct. 502, 503, 130 L.Ed.2d 411 (1994) (memorandum).

On remand from the Supreme Court, we reverse the district court's judgment because defendants made a substantial showing at trial that their decision to limit Jeffries' term was based upon a reasonable prediction that the Albany speech would disrupt university operations.

BACKGROUND

We summarize the facts briefly; a more detailed account appears in our initial opinion. See Jeffries, 21 F.3d 1238, 1241-44.

Leonard Jeffries was the chairman of the Black Studies department at City College of New York ("City College"), which is part of the City University of New York ("CUNY") system. In delivering the Albany speech, which addressed the bias of New York State's public school curriculum and the history of black oppression, Jeffries made several derogatory statements, particularly about Jews. After the speech, City College President Bernard Harleston and CUNY Chancellor Ann Reynolds arranged for the CUNY Board of Trustees to vote as to whether to limit Jeffries' term as department chair to one year, even though such terms normally last three years. A majority of the 14 members of the CUNY Board of Trustees voted to limit Jeffries' term. The votes were cast as follows: Nine of the Trustees voted to limit Jeffries' term to a year; four voted to remove him immediately; one abstained because she had made critical comments about Jeffries in the past. Harleston and Reynolds did not vote because they were not Trustees.

Jeffries sued Harleston, Reynolds, and all 14 of the individual CUNY trustees under 42 U.S.C. Sec. 1983 in the United States District Court for the Southern District of New York (Kenneth Conboy, Judge ), alleging that they removed him in violation of the First Amendment. (One of the 16 original defendants, Trustee Blanche Bernstein, died during the trial, and Jeffries discontinued his claims against her.) Jeffries sought reinstatement and punitive damages.

The jury was given several sets of interrogatories to answer. In response to the first wave, the jury found that the defendants demoted Jeffries because of the Albany speech. The jury's answers also indicated that the Albany speech did not disrupt "the effective and efficient operation of the Black Studies Department, the College, or the University," but that the defendants "were motivated in their actions by a reasonable expectation" that the speech would cause such a disruption. The judge concluded from these responses that all 15 remaining defendants had violated Jeffries' First Amendment rights because the speech was substantially on matters of public concern, and did not cause actual harm to CUNY.

The judge then submitted another wave of questions to the jury to discern the individual liability of each of the 15 defendants. In response, the jury found that only six defendants--Harleston, Reynolds, and Trustees Edith Everett, Herman Badillo, Sylvia Bloom, and Harold Jacobs (together, the "Harleston defendants")--took action against Jeffries because of the Albany speech, and would not have done so had Jeffries not given the speech. Of the four Trustees who are Harleston defendants, three had voted to remove Jeffries from his post immediately, and one had abstained because of the negative statements she had made about Jeffries in the past. (The fourth vote to remove Jeffries immediately came from Trustee Bernstein, who died during the trial, and is not part of this appeal.) The jury found that the other nine defendants, all of whom had voted to limit Jeffries' term to one year, did not act with the same retaliatory animus.

On the third and final wave of interrogatories, the jury found that all six of the Harleston defendants had "acted with malicious intent to violate the plaintiff's rights under the First Amendment ... or with malicious intent to unlawfully injure him, or ... with a callous or reckless disregard of the plaintiff's First Amendment rights." Based on these findings, the jury awarded punitive damages against the Harleston defendants.

After finding that the defendants were not shielded from liability by qualified immunity, the district judge entered judgment consistent with the jury responses (although he reduced the punitive damage amounts). In addition, the judge ordered the defendants to reinstate Jeffries as chairman of the department for two years. The defendants appealed.

We affirmed the reinstatement order, agreeing with the district court that the defendants had violated Jeffries' right to free speech, and that the Harleston defendants were not shielded by qualified immunity. See Jeffries, 21 F.3d at 1245-49. We found, however, that the jury's special verdict responses were inconsistent regarding the six Harleston defendants' liability for punitive damages. Specifically, we could not reconcile the jury's finding that all 15 of the remaining defendants demoted Jeffries based on their reasonable belief that the Albany speech would harm CUNY, with its later finding that the six Harleston defendants demoted Jeffries out of a malicious desire to violate his free speech rights, or at least in reckless disregard of these rights. Thus, we vacated the punitive damage awards against the six Harleston defendants, and remanded for a new trial against these six on the punitives issue. See id. at 1249-50.

Upon the defendants' petition, the Supreme Court granted certiorari, vacated our judgment, and remanded with instructions to reconsider our opinion in light of Waters. See Harleston, --- U.S. at ----, 115 S.Ct. at 503.

DISCUSSION

One of the principles driving our earlier Jeffries decision was that the First Amendment protects a government employee who speaks out on issues of public interest from censure by his employer unless the speech actually disrupted the employer's operations. See Jeffries, 21 F.3d at 1245. We expressly held that a mere reasonable belief that the speech would interfere with the employer's operations is not enough to discipline an employee, unless the employee holds a high-level, policymaking position. See id. at 1246-47.

Applying that standard, we studied the Albany speech, and found that it squarely involved issues of public concern--namely, the New York state public school curriculum, and black oppression throughout history. See id. at 1245-46. Then, after examining CUNY's bylaws, and the testimony of CUNY officials, we agreed with the district court that the position of Black Studies Chairman was a ministerial position at CUNY, and...