Keating v. Univ. of S.D.

• Decision Date: 30 September 2013
• Docket Number: No. CIV 04–4208.,CIV 04–4208.
• Citation: 980 F.Supp.2d 1137
• Parties: Christopher KEATING, Plaintiff, v. UNIVERSITY OF SOUTH DAKOTA, James Abbott, Royce Engstrom, Donald Dahlin, Matthew Moen, Timothy Heaton, Christina Keller, South Dakota Board of Regents, Mike Rounds, Defendants.
• Court: U.S. District Court — District of South Dakota

980 F.Supp.2d 1137

Christopher KEATING, Plaintiff,

v.UNIVERSITY OF SOUTH DAKOTA, James Abbott, Royce Engstrom, Donald Dahlin, Matthew Moen, Timothy Heaton, Christina Keller, South Dakota Board of Regents, Mike Rounds, Defendants.

No. CIV 04–4208.

United States District Court,

D. South Dakota,

Southern Division.

Sept. 30, 2013.

Christopher Keating, Mason, TX, pro se.

William P. Fuller, Hilary L. Williamson, Fuller & Williamson, Sioux Falls, SD, for Defendants.

MEMORANDUM OPINION AND ORDER

LAWRENCE L. PIERSOL, District Judge.

Pending before the Court is Defendants' motion for summary judgment, Docket 84. Plaintiff Christopher Keating filed two responses in opposition to the motion, and Defendants have submitted a reply brief. The summary judgment motion will be granted in part and denied in part for the reasons set forth below.

DECISION

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(c)(1); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations of its pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at 257, 106 S.Ct. 2505;City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273–74 (8th Cir.1988).

In the present case, Keating's employment contract with the University of South Dakota was not renewed based on his alleged lack of civility pursuant to the COHE agreement. Keating asserts claims under 42 U.S.C. § 1983, contending that Defendants' actions deprived him of his right to engage in free speech which is protected under the First Amendment to the United States Constitution, and that the civility clause of the COHE agreement is unconstitutionally vague or overbroad.

Defendants argue that the Eleventh Amendment affords them immunity from suit in federal court, and they also assert that they are entitled to judgment on the merits of Keating's claims even if they are not entitled to immunity. The background and relevant facts which are recited in the court's previous Memorandum Opinions, Dockets 43, 53 and 73, are not in dispute and will not be repeated here. For ease of reference, the email that led to the nonrenewal of Keating's contract will be set forth below, along with the civility clause of the COHE agreement.

On April 24, 2004, Keating sent an email to Dr. Heaton. Keating describes the email as a private email between Dr. Heaton, Dr. Keller and himself, which was shared with no one else, and was in direct response to an email sent by Dr. Heaton to Keating. Docket 1 at p. 3. Keating's email states, in part:

On the other hand, I did come to you with my problems and the result was highly unsatisfactory. You came back and insisted that not only did I not have anything to complain about, but everything except the price of corn futures was my fault. We will ignore the fact the two are mutually exclusive. How could I be at fault for everything when you already concluded there was nothing wrong? You and Dr. Keller took this matter out of the department and made it a school-wide problem. You did nothing to address my problems except to tell me that I was essentially not part of the department. You two then threatened me with false charges of sexual harassment and stated in your letter that I had engaged in inappropriate behavior.

I came to you with a problem and you made it infinitely worse. Your actions have caused permanent damage to my relationship with the two of you. There is no way I can trust you with another problem.

I cannot communicate with Dr. Keller because she is a lieing (sic), backstabbing sneak. I ask her questions and she will not answer. She learns important information and she withholds it. She keeps a secret file on me that she pulls out to use against me. She then talks badly about me around campus.

Docket 1 at p. 2–3,

Keating's language was found to be in violation of the civility clause in the employment contract between the University of South Dakota and its faculty, as represented by the Council of Higher Education (COHE). Appendix G of the COHE Contract is entitled “Statement Concerning Faculty Expectations.” Docket 86 at ¶ 2. The civility provision is contained within that Appendix and is entitled “Civility in working with colleagues, staff members, students and others.” Id. at ¶ 3. It provides:

Universities play a special role in preparing students to lead the complex social organizations through which businesses and professions operate and through which free people govern themselves. Students must be taught, and they must be shown through the example given by institutional employees, that members of stable, effective and prosperous social organizations observe norms of conduct under which all participants treat one another civilly and carry out their respective tasks in a constructive and informed manner. Complex social organizations derive their strength from the cooperation of those who participate in them. By virtue of their special role in preparing future generations of leaders, universities have a particular concern with conduct that destroys the bonds of cooperation and common purpose on which society rests by demeaning members of the community, and such conduct cannot be tolerated in an institution whose very purpose is to shape the skills and conscience of the rising generations.

Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.

Docket 87–1 at p. 2.

I. Eleventh Amendment Immunity

The Eleventh Amendment of the United States Constitution provides that:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against any one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. Const. Amend. XI. The Amendment has been interpreted to protect an unconsenting “State or one of its agencies or departments” from suit in federal court by its own citizens as well as those of another state. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Supreme Court has recognized two exceptions to the Eleventh Amendment immunity for the States and their agencies.

While this immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment—an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U.S. 436, 447–448, 2 S.Ct. 878, 27 L.Ed. 780 (1883).

College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).

A. University of South Dakota and Board of Regents

The University of South Dakota and the Board of Regents argue that they are arms of the state and they have not waived their Eleventh Amendment immunity from suit in federal court. In support of that argument, Defendants assert that the University of South Dakota is a state-funded institution of higher learning. SeeSDCL §§ 13–51–4 (duty of Board of Regents to make recommendations to state legislature regarding support of institutions of higher education); 13–55E–1 (term “institution of higher education” includes any state-supported university). The Board of Regents governs the University of South Dakota. SeeSDCL § 13–49–1 (control of state institutions of higher education vested in Board of Regents). Members of the Board of Regents are appointed by the Governor with the consent of the Senate. See id. An educational fund has been established in the state treasury to support the institutions of higher education under the jurisdiction of the Board of Regents, seeSDCL § 13–51–2, and the state treasury is to receive all funds arising from the educational institutions governed by the Board of Regents, seeSDCL § 13–53–15.

Keating counters that the Board of Regents is a political entity separate from the state because, among other things, it can acquire property, seeSDCL § 13–51A–2, and issue bonds, seeSDCL § 13–51A–13. Keating contends that there are no state funds at risk from an adverse decision in this case. According to Keating, the University of South Dakota, by extension, also does not qualify for immunity.

The Eighth Circuit and the South Dakota Supreme Court have held that the Board of Regents is a political subdivision of the state and, as such, is entitled to sovereign immunity, meaning that it cannot be sued under § 1983. See Prostrollo v. Univ. of S.D., 507...