McBrearty v. Kappeler, Civil No. 5:16-121-JMH

• Court: United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
• Writing for the Court: Joseph M. Hood Senior U.S. District Judge
• Parties: JENEAN MCBREARTY, Plaintiff, v. DR. VICTOR KAPPELER, et al., Defendants.
• Docket Number: Civil No. 5:16-121-JMH
• Decision Date: 09 January 2018

JENEAN MCBREARTY, Plaintiff,
v.
DR. VICTOR KAPPELER, et al., Defendants.

Civil No. 5:16-121-JMH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON

January 9, 2018

MEMORANDUM OPINION & ORDER

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This matter is before the Court upon cross-Motions for Summary Judgment filed by Defendant Carole Garrison [DE 44] and Plaintiff Jenean McBrearty, pro se [DE 40; Response at DE 45].¹ McBrearty argues that Garrison violated her right to free speech and to due process under the First and Fourteenth Amendments to the United States Constitution when Garrison, as her instructor, removed a post that McBrearty made to a class discussion board and then somehow injured her chances of obtaining future employment at Eastern Kentucky University.

"To successfully establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) the defendant must be acting under the color of state law, and (2) the offending conduct must deprive the plaintiff of rights secured by federal

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law." Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Garrison does not dispute she was acting in her official capacity as an EKU professor at all times relevant to McBrearty's claims, and therefore does not deny she was acting under color of state law. However, despite McBrearty's assertions, Garrison argues and the Court agrees that Garrison conduct did not violate any of McBrearty's constitutional rights for the reasons set forth in this opinion. Therefore, Garrison is entitled to summary judgment on all claims made against her, and McBrearty's Motion for Summary Judgment will be denied.

I.

Plaintiff McBrearty enrolled in Defendant Garrison's online PLS 326 class, "Police, Liability and Ethics," at Eastern Kentucky University ("EKU"). As part of the class, students were expected participate in online discussions, contained on a Blackboard discussion page. As the parties explain it, only those particular individuals enrolled in Garrison's PLS 326 class were permitted access to the discussion thread at issue. There was no "general access" to these discussions; rather, Garrison's students had to obtain permission to access the forum by way of enrolling in the course. Each week, Garrison would post a discussion board prompt, and students were expected to both respond to the initial post and respond to two of their classmates' posts. Student participation

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in these discussions was reflected as 10% of the student's overall grade in the course.

In the seventh week of the course, Garrison posted this discussion prompt:

Imagine you are a newly appointed Police Chief of a brand new department. A newly chartered small city has hired you to organize and staff this state of the art professional police department. Identify and define operationally/thoroughly each of five characteristics, values or traits you will look for in people you hire for our department. Be sure to defend why these are the five most important things to look for in recruiting professional police officers (what consequences are there if this characteristic or value is present or absent that is critical to an effective law enforcement agency).

Examples, but you can use your own if you can defend them: courageous, self-control, generous, high-minded, gentle truthfulness, modest, empathetic, imaginative, decisive, good communicator, aware, educated, respectful, tolerant, physically fit, honest.

McBrearty responded at length and concluded with the following statement:

What I'd look for in my officers is what the military once looked for in its officers: Renaissance people with the ability to innovate, seize the initiative, and maintain high standards of performance in the line of duty. I'd want them to have the sound judgment of an Eisenhower, the initiative of a Patton, the courage of a Churchill, and the determination of a Hitler.

Two students responded with short comments on the relative merits of crafting a police force comprised of individuals with

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military police training. Then, a third student offered an extended response addressing many points, including Eisenhower's decision to send federal troops to keep the peace in Little Rock during the integration of Central High School in the wake of Brown v. Board of Education and the protection of the First Amendment and other constitutional provisions by police officers. He continued,

Auschwitz, Sobibor, Treblinka, etc. . . . are examples of Hitler's determination, a genocide where 11 million or possibly more people died. Under Hitler's rule, Germany invaded or occupied Czechoslovakia, Austria, Poland, Denmark, Norway, Belgium, France, Yugoslavia, Greece, and the Soviet Union among others. The Second World War resulted in approximately 70 to 80 million deaths. One cannot forget the Nuremberg Laws that Hitler and the Nazi party enacted that racially divided German society and helped lead German into the holocaust.

Jenean, I hope that you can appreciate how evoking the name or image of Hitler can bring about strong emotions within people. I respect your right to use him as an example, but I question its validity in this measure. Hitler's determination was not based in moral outcomes for himself, his people, or the world.

McBrearty responded, in part:

With all due respect, I said I would want my officers to have "the determination" of a Hitler, not that I would want them to believe as he did or behave as he did. But he was one determined individual! Few people know he served honorably in WWI and won the Iron Cross. He was not a "coward" or sex pervert. There is much propaganda about him that was BS --- and used by politicians everywhere as an accusation of corruption. Like the word racism, racist, and sexist, etc. I'm no longer

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cowed by or afraid of words. And, having read the first three Chapters [sic] of Mein Kampf, I understand where he was coming from and just how disenfranchised the German people felt....not unlike how minorities feel. Yes, I know alluding to him evokes strong emotion, but that's the point. We cannot be afraid of words, dead people, or ideas.

How can we have a real conversation about anything when we are gagged by PC, by fear, by aversion to ideas? Hitler is used as a bogeyman, but do we ever contemplate that Stalin's regime killed twice the number of people that Hitler's regime did? And Chairman Mao, three times as many? How many students know about The Great Leap Forward that killed off so many of China's intellectuals? About show trials? How many students have read Koestler's Darness [sic] at Noon? Communism has jailed, tortured, enslaved, and butchered twenty times the number of people Hitler killed yet we hear nothing about this. Our history books don't teach our children about the evils of Communism, of statism, and the government shredding of our Constitution. We are not allowed to talk about the horrors of Islam, of the connection between the black power movement and islam [sic]. How many people know the name of Elijah Muhammed, and the Nation of Islam that preaches black racism and separatism? About these things, we must be silent, even though a "conversation" is a two-way street.

If we are to be free, we must exercise our right to free speech. Use it or lose it. When people can be gunned down and the perpetrators excused by our government because a cartoon contest was "insulting" to a religion, it is time we seriously examine how suppressed we really are. Since when do we yield our rights because someone is offended? We must stop being afraid of words.

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Garrison decided to remove the thread, including McBrearty's post and the comments on it. She explained that she did so once another student and McBrearty began commenting and discussing a subject which had nothing to do with the initial assignment nor was related to preparation for their final examination in the course. Garrison did not pursue EKU's student disciplinary procedures against McBrearty nor was McBrearty's grade impacted as a result of the...