Levin v. Harleston

• Citation: 966 F.2d 85
• Decision Date: 08 June 1992
• Docket Number: No. 796,D,796
• Parties: , 75 Ed. Law Rep. 1017 Michael LEVIN, Plaintiff-Appellee, v. Bernard W. HARLESTON, President of The City College of The City University of New York, individually and in his official capacity, and Paul Sherwin, Dean of The City College of The City University of New York, individually and in his official capacity, Defendants-Appellants. ocket 91-7953.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 85

966 F.2d 85

60 USLW 2791, 75 Ed. Law Rep. 1017

Michael LEVIN, Plaintiff-Appellee, v. Bernard W. HARLESTON, President of The City College of The

City University of New York, individually and in his

official capacity, and Paul Sherwin, Dean of The City

College of The City University of New York, individually and

in his official capacity, Defendants-Appellants.

No. 796, Docket 91-7953.

United States Court of Appeals,

Second Circuit.

Argued Jan. 16, 1992.

Decided June 8, 1992.

Clement J. Colucci, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of State of N.Y., and Toni E. Logue, Asst. Atty. Gen., of counsel), for defendants-appellants.

Scott M. Univer, New York City (Michael P. McDonald, Center for Individual Rights, Washington, D.C., of counsel), for plaintiff-appellee.

Ann H. Franke and Mark D. Laponsky, Washington, D.C. (Robert M. O'Neil, Charlottesville, Va., Arthur Eisenberg, New York Civil Liberties Union, and Norman Dorsen, New York University School of Law, New York City, of counsel), submitted a brief for American Ass'n of University Professors, New York Civil Liberties Union, and Thomas Jefferson Center for Protection of Free Expression, amicus curiae.

Before: VAN GRAAFEILAND, CARDAMONE and McLAUGHLIN, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Bernard W. Harleston and Paul Sherwin, the President and Dean of Humanities, respectively, of The City College of The City University of New York, appeal from a judgment entered after a bench trial in the United States District Court for the Southern District of New York (Conboy, J.) in a 42 U.S.C. § 1983 action brought by Professor Michael Levin. The district court found violations of Levin's free speech and due process rights and granted injunctive relief. We affirm in part and vacate in part.

Because the district court's opinion, reported at 770 F.Supp. 895 (S.D.N.Y.1991), contains a lengthy statement of the pertinent facts, our own factual statement will consist more of reference than repetition. This litigation had its inception in three writings of Levin, a tenured professor at the College, which is a public institution funded in part by the State of New York. The first of these was a letter to the New York Times, id. at 901; the second was a book review published in Quadrant, an Australian journal, id. at 902; the third was a letter published in the American Philosophical Association Proceedings, id. at 902-03. Because these writings contained a number of denigrating comments concerning the intelligence and social characteristics of blacks, they elicited a mixed response, much of it critical in nature. As will hereafter appear, appellants' response went beyond simple vocal condemnation.

Over Dean Sherwin's objection, Professor Charles Evans, Chairman of the College's philosophy department, assigned Professor Levin to teach a section of Philosophy 101 during the 1990 spring semester. After the appearance in January 1990 of Levin's letter in the American Philosophical Association Proceedings, Dean Sherwin created an "alternative" section of Philosophy 101 for those of Levin's students who might want to transfer out of his class. He wrote to the students in Levin's class on February 1, after the semester had commenced and without notice to Levin, informing them of the alternative section to which they could transfer. Id. at 907-08.

Similar action never before had been taken in the history of City College. Moreover, none of Professor Levin's students ever had complained of unfair treatment on the basis of race. Professor Evans objected to the creation of the "shadow class" as immoral, illegal and an unwarranted interference in his discretionary powers as a department chairman. Faculty members of City College, and of other institutions as well, criticized appellants' acts as a violation of academic freedom. Id. at 907-09. The district court found that the shadow classes "were established with the intent and consequence of stigmatizing Professor Levin solely because of his expression of ideas," id. at 915, and enjoined their continuance, id. at 927.

In addressing the issue of the "shadow classes", we emphasize the great reluctance with which this court intrudes upon the decisions of a university administration. Aebisher v. Ryan, 622 F.2d 651, 654 (2d Cir.1980). Where, however, basic constitutional values have been infringed, this court will not remain silent. "[S]tate colleges and universities are not enclaves immune from the sweep of the First Amendment." Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972). We review the district court's above-quoted finding under a clearly erroneous standard. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). Appellants' argument that the district court could not make this finding, because only Professor Levin's opinion supported it, borders on the frivolous. The district court was free to infer an impermissible intent from all of the facts surrounding the creation of the alternative sections. It did not need an affirmative statement that this intent existed. See Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). We do not hesitate in upholding the court's finding as not clearly erroneous.

An impermissible purpose does not, of course, end our inquiry if a permissible reason for the governmental act also existed. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Formation of the alternative sections would not be unlawful if done to further a legitimate educational interest that outweighed the infringement on Professor Levin's First Amendment rights. See Carroll v. Blinken, 957 F.2d 991, 1001 (2d Cir.1992). However, although appellants contended below that they created the alternative sections because Professor Levin's expression of his theories outside the classroom harmed the students and the educational process within the classroom, the district court saw no evidence that this was a factually valid concern. 770 F.Supp. at 922. Given the complete lack of evidence to support appellants' claim of a legitimate educational interest, we are unable to say that the district court erred.

Appellants contend that "[s]ince, by definition, alternative class sections presuppose that Professor Levin will continue to teach a class section, the creation of such sections cannot, as a matter of law, constitute an infringement of Professor Levin's First Amendment rights." We disagree. Appellants' encouragement of the continued erosion in the size of Professor Levin's class if he does not mend his extracurricular ways is the antithesis of freedom of expression.

Because the alternative sections continue to exist, that part of the district court's judgment permanently enjoining appellants "from creating or maintaining 'shadow' or 'parallel' sections of his classes predicated solely upon Professor Levin's protected expression of ideas," id. at 927, was warranted and is affirmed. Contrary to appellants' contention, this order is not too ambiguous to be enforced. The constitutionality of a shadow class organized solely because of Professor Levin's extracurricular statements was the precise issue that was litigated below. Appellants cannot be unaware of exactly what they are forbidden from doing. In view of the shadow classes' continued existence, there is nothing abstract about the steps appellants must take to eliminate their chilling effect on Professor Levin's extracurricular activities.

Appellants did not content themselves with simply creating a "shadow" class. At a press conference held on March 28, 1990, President Harleston announced the proposed formation of an Ad Hoc Committee on Academic Rights and Responsibilities to determine whether Professor Levin's views affected his teaching ability. President Harleston was reported as saying that "[t]he process of removing a tenured professor is a difficult one." He also was quoted as saying that "[Levin's] views are offensive to the basic values of human equality and decency and simply have no place here at City College." Id. at 910-11.

In a subsequent memorandum to the City College community, Harleston formally announced the appointment of the Ad Hoc Committee. The Committee was "to review the question of when speech both in and outside the classroom may go beyond the protection of academic freedom or become conduct unbecoming a member of the faculty, or some other form of misconduct." The words "conduct unbecoming" a member of the faculty mirror the language in the College's By-Laws and the Professional Staff contract warranting imposition of discipline on a faculty member. Harleston was aware of this and deliberately chose the language. Id. at 911.

Professor Levin testified that, after he saw the above memorandum, he feared President Harleston was going to fire him. As a consequence, he turned down at least twenty invitations to speak or write about his controversial views. Id. at 914. When Levin instituted this lawsuit on September 24, 1990, the Committee still was deliberating. Despite the commencement of the litigation and admonitory letters from Levin's counsel, Harleston never assured Levin that he was not subject to discipline for his statements outside the classroom. When the Committee finally reported, it recommended that no disciplinary action be taken against a faculty member for speech outside the classroom and that no disciplinary proceedings be brought against Professor Levin.

It is settled that governmental action which falls short of a direct prohibition on speech may violate the First Amendment by chilling the free exercise of speech. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972). However, not...