Schilcher v. University of Arkansas

• Decision Date: 05 November 2004
• Docket Number: No. 03-1369.,03-1369.
• Citation: 387 F.3d 959
• Parties: Linda SCHILCHER, Appellee, v. UNIVERSITY OF ARKANSAS, Board of Trustees; Donald O. Pederson, Vice Chancellor of Academic Affairs; Bernard Madison, Dean of the College of Arts and Sciences; Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

387 F.3d 959

Linda SCHILCHER, Appellee, v. UNIVERSITY OF ARKANSAS, Board of Trustees; Donald O. Pederson, Vice Chancellor of Academic Affairs; Bernard Madison, Dean of the College of Arts and Sciences; Appellants.

No. 03-1369.

United States Court of Appeals, Eighth Circuit.

Submitted: January 16, 2004.

Filed: November 5, 2004.

Appeal from the United States District Court for the Western District of Arkansas, Jimm Larry Hendren, Chief Judge.

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T. Scott Varady, argued, Fayetteville, AR (William R. Kincaid, on the brief), for appellant.

Charles M. Kester, argued, Fayetteville, AR, for appellee.

Before MELLOY, BRIGHT, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Donald Pederson and Bernard Madison-who were at the relevant times the Vice Chancellor of Academic Affairs at the University of Arkansas at Fayetteville and the Dean of its College of Arts and Sciences, respectively-along with the Board of Trustees of the University of Arkansas, appeal from the district court's¹ denial of their summary judgment motion asserting qualified immunity. For the reasons discussed below, we affirm the portion of the district court's judgment that is reviewable in this appeal-the denial of qualified immunity-and we dismiss the remainder of the appeal for lack of jurisdiction.

I.

The following background information is taken from the record and is undisputed for purposes of this appeal. In the early 1990s, the country of Saudi Arabia donated approximately $20 million to the University of Arkansas at Fayetteville for a Middle East Studies Program. Linda Schilcher was at that time a tenured associate professor in the History Department at Villanova University in Pennsylvania. She had teaching and research duties at Villanova's Center for Contemporary Arab and Islamic Studies. Schilcher applied to be a tenure-track associate professor in the History Department at the College of Arts and Sciences at the University of Arkansas at Fayetteville with teaching and research duties in the Middle East Studies Program. She was hired, and she began teaching in the 1995-96 academic year. On the recommendations of the History Department, the College of Arts and Sciences reappointed her for the 1996-97 and 1997-98 academic years.

In 1998, Schilcher underwent a "pretenure review," also referred to as a "third-year review." During this process, she was evaluated not only to determine whether she should be reappointed for another academic year, but also whether she was making adequate progress toward tenure. The History Department, after noting room for improvement in her teaching and her collegiality, recommended her reappointment. The Personnel Committee of the College of Arts and Sciences, however, recommended that she not be reappointed because her teaching and publications did not meet the standards for progress toward tenure. Dean Madison considered these recommendations and decided not to reappoint Schilcher. She appealed to Dean Madison and Vice Chancellor Pederson. After considering her appeal, they affirmed the decision not to reappoint her.

Schilcher then sued in district court, alleging many claims under federal and state law. The defendants² moved for summary judgment. The district court granted their motion almost in its entirety, dismissing all but one of Schilcher's claims for damages against the defendants in their individual capacities. The single claim which survived summary judgment is the allegation that Madison and Pederson violated Schilcher's First Amendment rights: that, in deciding not to reappoint her, they were substantially motivated by her previous speech on matters of public concern.

On this claim, Madison and Pederson made four arguments why they were entitled to summary judgment, all of which the district court rejected. Madison and Pederson argued that Schilcher's speech did not address matters of public concern; that even if she had engaged in protected speech, her speech was not a substantial or motivating factor in their decision not to reappoint her; that Madison and Pederson would not have reappointed Schilcher, regardless of whether she had engaged in protected speech, because she had made inadequate progress toward tenure; and that they were entitled to qualified immunity because the summary judgment record showed no violation of her clearly established rights.

Pederson, Madison, and the Board of Trustees now appeal from the denial of qualified immunity.

II.

An immediate appeal from the denial of qualified immunity, such as this one, is quite limited in scope. The only question that is immediately appealable is whether, taking as true the facts in the summary judgment record that favor the plaintiff, it has been shown that the defendants violated clearly established law. See Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Beyond this narrow issue, we may exercise jurisdiction only over issues that are "inextricably intertwined," meaning issues that would necessarily be resolved when we resolve the question of qualified immunity. See Lockridge v. Bd. of Trs. of the Univ. of Ark., 315 F.3d 1005, 1012-13 (8th Cir.2003) (en banc).

III.

Like the district court, we take as true the facts in the summary judgment record favorable to Schilcher and determine whether those facts show a violation of clearly established law by Madison and Pederson. See Johnson, 515 U.S. at 319, 115 S.Ct. 2151. It is clearly established that a public employer may not discharge an employee for engaging in protected speech. See Sexton v. Martin, 210 F.3d 905, 910 (8th Cir.2000). If the facts most favorable to Schilcher do not show that she spoke on matters of public concern, or do not show that Madison and Pederson were aware of her speech when they did not reappoint her, then they would be entitled to qualified immunity. This is the touchstone of our analysis.

It is clearly established that speech about the misuse or waste of public funds is generally of public concern. See Domina v. Van Pelt, 235 F.3d 1091, 1098 (8th Cir.2000). In the context of a state university, we have previously held that a professor's allegations of misused funds and poor administration constituted speech on matters of public concern. See Hamer v. Brown, 831 F.2d 1398, 1400-02 (8th Cir. 1987).

However, it is not enough to say that a particular topic or subject is, at some level of abstraction, a matter of public concern. We must analyze the content, form, and context of the speech to determine whether the speaker was acting primarily as a concerned citizen or as an employee. If the speech was mostly intended to further the employee's private interests rather than to raise issues of public concern, her speech is not protected, even if the public might have an interest in the topic of her speech. See Sparr v. Ward, 306 F.3d 589, 594-95 (8th Cir. 2002).

Although this is a question of law, it is, to say the least, a fact-intensive inquiry. Our inquiry in this case was not particularly well-aided by the parties' submissions on appeal. The briefs dwell on issues that are beyond the scope of this appeal when they should focus on guiding us through the long and confusing summary judgment record that fills several thick volumes of appendices. Nonetheless, we have done our best to make sense of this case, and we have gleaned from the record the following instances of speech by Schilcher that Madison and Pederson were aware of when they did not reappoint her.

A.

The summary judgment record shows that Schilcher began telling the Chair of the History Department, Daniel Sutherland, as early as 1996 that she believed she was being discriminated against by the administrators of the Middle East Studies Program. She complained to him that the administrators, Director Adnan Haydar and Associate Director Mounir Farah, both men of Arab descent, treated her poorly because she was a woman and a non-Arab. She further complained that female and non-Arab students in the program were also being discriminated against, and that Haydar and Farah's poor administration of the program was wasting its substantial endowment.

According to Schilcher's deposition testimony, Sutherland told her that Madison was aware of her concerns. (Appellee's App. at 949-50.) Sutherland confirmed this in his deposition testimony. He recalled that on at least one occasion, most likely during the spring of 1996, he alerted Madison to Schilcher's concerns about the operation of the Middle East Studies Program. Specifically, Sutherland recalled relaying Schilcher's perception that she was having trouble getting her projects approved and her ideas addressed because Haydar and Farah were Arab men who expected women to be subservient. (Id. at 1055, 1063-68.)

In June 1996, Schilcher (who was then still in her first year at the university) and the three other professors who constituted the "core faculty" of the Middle East Studies Program wrote a letter to Dean Madison. They asked to be put in charge of administering the program, suggesting that this would an improvement over Haydar and Farah's leadership. (Appellants' App. at 639.)

The summary judgment record further shows that Madison knew Schilcher had aired her concerns to students. In October 1997, an undergraduate senior who was enrolled in one of Schilcher's classes wrote to Madison and Sutherland. The student complained that Schilcher spent class time criticizing the leadership and direction of the program. "[Schilcher] has repeatedly implied that Dr. Farah `has it in for her' because she is a woman, and that the large Middle Eastern studies endowment is being misused, even going so far as to make an outright accusation of corruption within that program." The student cited a day in which Schilcher "spent all but fifteen minutes of a one hour and twenty minute class chatting with the graduate students about departmental politics and her difficulties with the Middle Eastern Studies...