Miles v. Denver Public Schools, 90-1122

• Decision Date: 11 September 1991
• Docket Number: No. 90-1122,90-1122
• Citation: 944 F.2d 773
• Parties: 69 Ed. Law Rep. 1060 John G. MILES, Plaintiff-Appellant, v. DENVER PUBLIC SCHOOLS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 773

944 F.2d 773

69 Ed. Law Rep. 1060

John G. MILES, Plaintiff-Appellant, v. DENVER PUBLIC SCHOOLS, Defendant-Appellee.

No. 90-1122.

United States Court of Appeals, Tenth Circuit.

Sept. 11, 1991.

Larry F. Hobbs (Rita Byrnes Kittle of Hornbein, MacDonald, Fattor, and Hobbs, P.C., Denver, Colo., with him on the briefs) of Hornbein, MacDonald, Fattor, and Hobbs, P.C., Denver, Colo., for the plaintiff-appellant.

Patrick B. Mooney (Martin Semple of Semple & Jackson, P.C., Denver, Colo., with him on the brief) of Semple & Jackson, P.C., Denver, Colo., for defendant-appellee.

Before TACHA and EBEL, Circuit Judges, and VAN BEBBER, District Judge. ^*

TACHA, Circuit Judge.

This appeal arose out of an incident in which plaintiff-appellant John Miles, a public high school teacher in Denver, Colorado, was disciplined for statements he made in the classroom. Miles seeks damages and injunctive relief pursuant to 42 U.S.C. § 1983, claiming the defendant school district violated his first amendment free speech rights. The district court granted summary judgment in favor of the school. On appeal, Miles argues the district court erred in granting summary judgment for the defendant because there are genuine issues of material fact to be determined before the first amendment issue can be decided. Miles also asserts his classroom expression is protected by the first amendment and the letter of reprimand unconstitutionally regulates his speech. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court's grant of summary judgment.

I. BACKGROUND

During a ninth grade government class, Miles stated that the quality of the school had declined since 1967. When a student asked for specific examples, Miles replied that in the past the school did not have so many pop cans lying around and school discipline was better. He also commented, "I don't think in 1967 you would have seen two students making out on the tennis court." This comment referred to an incident that allegedly had occurred the previous day and was the topic of rumor throughout the school. The rumor was that two students were observed having sexual intercourse on the tennis court during lunch hour. Miles had heard the rumor from a colleague who had heard of the incident from two students claiming to have witnessed it. Miles never sought official confirmation of the rumor before repeating it in class.

Miles' comments about the rumor led parents of the alleged participants to complain to the principal. Following meetings with Miles and several other individuals, the principal placed Miles on paid administrative leave for four days. Miles wrote to the principal apologizing for exercising "bad judgment." The principal conducted an investigation and issued a reprimand letter that stated:

After completing the investigation of the alleged incident in your period 3 class on March 30, 1989, I find it necessary to write you this letter of reprimand. The investigation revealed that you displayed poor judgment in your comment "making out" on the tennis court. Informing your students of an alleged incident of one of your tennis players "making out" with a female student on the tennis courts during the lunch period was an inappropriate topic for comment in a classroom setting.

In the future you will need to refrain from commenting on any items which might reflect negatively on individual members of our student body.

Eight months after his reinstatement, Miles filed this lawsuit claiming that the imposition of paid administrative leave and placement of the letter of reprimand in his file violated and "chilled" his free speech rights. After discovery, the parties filed cross-motions for summary judgment. The court granted summary judgment in favor of the school and denied Miles' motion.

II. DISCUSSION

A. Standard of Review

We review summary judgment orders de novo, using the same standards the district court applies. Osgood v. State Farm Mut. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). What material facts are relevant is determined by the substantive law governing a claim. Only factual disputes that affect the outcome of a case under governing law will preclude entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. That both parties have moved for summary judgment does not preclude a finding that a genuine issue of material fact exists. Houghton v. Foremost Fin. Servs. Corp., 724 F.2d 112, 114 (10th Cir.1983).

B. First Amendment Standard

In Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Supreme Court established a test for determining whether an adverse employment decision violates a public employee's first amendment rights. This test requires that an employee show (1) the speech for which he was disciplined was constitutionally protected and (2) the protected speech motivated the adverse employment decision. After an employee has made these showings, the employer has the burden of showing by a preponderance of the evidence that she would have made the same decision absent the protected speech. Id. at 287, 97 S.Ct. at 576; Kirkland v. Northside Indep. School Dist., 890 F.2d 794, 797, 799 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990).

In determining whether Miles has satisfied the initial burden of showing his classroom expression is constitutionally protected, we look to the Supreme Court's decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). In Hazelwood, student contributors to a newspaper published as part of a journalism class contested the principal's deletion of material from the newspaper prior to publication. Id. at 261, 108 S.Ct. at 564. Although the Court emphasized that "students in the public schools do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,' " the Court held that educators do not offend the first amendment by exercising editorial control over school-sponsored expression "so long as their actions are reasonably related to legitimate pedagogical concerns." Id. at 266, 273, 108 S.Ct. at 567, 571 (quoting Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)). The Court explained that if school facilities have not been opened for " 'indiscriminate use by the general public' " and the school is not a public forum, then "school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community." Id. at 267, 108 S.Ct. at 568 (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 956 n. 7, 74 L.Ed.2d 794 (1983)).

In Hazelwood, the Supreme Court determined the extent to which classroom expression is constitutionally protected by first asking whether the school's student newspaper was a public forum. Id. at 266-70, 108 S.Ct. at 567-68. Similarly, our first inquiry is whether Miles' ninth-grade classroom is a public forum. As the Supreme Court pointed out in Hazelwood, "public schools do not possess all of the attributes of streets, parks, and other traditional public forums that, 'time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " Id. at 267, 108 S.Ct. at 567-68 (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939)). A podium before a captive audience of public school children is decisively different from a street corner soapbox. The Court in Hazelwood explained that a public forum is not created " 'by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.' " Id. at 267, 108 S.Ct. at 568 (quoting Cornelius v. NAACP Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985)). If the creation and operation of a school newspaper as part of a journalism class can be devoid of an intent to open a classroom for public discourse, id. at 268-69, 108 S.Ct. at 568-69, then an ordinary classroom--such as the one in which Miles taught--is not a public forum. There is no evidence that school authorities intended to open Miles' government class for public discourse. Therefore, we conclude that the school " 'reserved the forum for its intended purpose' " of teaching government. Id. at 270, 108 S.Ct. at 569 (quoting Perry Educ. Ass'n, 460 U.S. at 47, 103 S.Ct. at 955).

A recent Eleventh Circuit case supports this conclusion. In Bishop v. Aronov, 926 F.2d 1066 (11th Cir.1991), the Eleventh Circuit, addressing the extent to which a university may restrict a professor's classroom expression, explained that "[w]hile the [institution] may make its classrooms available for other purposes, we have no doubt that during instructional periods the ... classrooms are 'reserved for other intended purposes,' viz. the teaching of a particular ... course for credit." Id. at 1071 (quoting Hazelwood, 484 U.S. at 267, 108 S.Ct. at 568). Based on this analysis, the court in Bishop held the university classroom was not a public forum and the university could reasonably restrict a professor's classroom expression. Id. at 1071, 1077.

After determining that the student newspaper in Hazelwood was not a public forum, the Court focused on whether the students' expression was school-sponsored speech. See id. at...