Shelton v. Trustees of Indiana University, 88-2167

• Decision Date: 08 December 1989
• Docket Number: No. 88-2167,88-2167
• Citation: 891 F.2d 165
• Parties: 57 Ed. Law Rep. 756 Steven SHELTON, Plaintiff-Appellant, v. The TRUSTEES OF INDIANA UNIVERSITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 165

891 F.2d 165

57 Ed. Law Rep. 756

Steven SHELTON, Plaintiff-Appellant, v. The TRUSTEES OF INDIANA UNIVERSITY, et al., Defendants-Appellees.

No. 88-2167.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 8, 1989.

Decided Dec. 8, 1989.

Steven Shelton, Titusville, Fla., pro se.

Albert J. Velasquez, Office of the University Counsel, Bloomington, Ind., for defendants-appellees.

Before CUDAHY, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

This is a suit under 42 U.S.C. § 1983 against the trustees of Indiana University, a public university, and others by a law student, Steven Shelton, who claimed that the university decided not to rehire him as a resident assistant in an Indiana University dormitory because he displayed an automatic rifle in his room as part of a political statement about the Vietnam War. The suit seeks both injunctive relief and damages, and is against the trustees in both their official and their personal capacity. After a bench trial, the district judge correctly dismissed the claim for damages against the trustees in their official capacity as barred by the Eleventh Amendment, Kashani v. Purdue University, 813 F.2d 843 (7th Cir.1987), and dismissed the rest of the suit on the ground that Shelton had been denied rehire "not because of this 'speech,' but because his behavior toward his supervisors was belligerent, insubordinate, and reflected a poor understanding of his role as a resident assistant." Unless this finding is clearly erroneous, the decision must stand.

Shelton, a Marine Corps veteran of the Vietnam War, had bought an AR-15 automatic rifle, which is similar to the M-16 that he carried in Vietnam, and displayed it in his dorm room--which was also his resident assistant's office--together with memorabilia of the war and his own personal statements regarding the Vietnam War and war in general. A photograph of the ensemble is reproduced at the end of this opinion.

University regulations forbid the possession of firearms, defined as "any weapon[s] ... designed ... to expel a projectile by means of an explosion." Shelton knew about the regulations and proposed to the head of the university's housing office that the bolt of the AR-15 be stored in the housing office. The manager of the office checked with an officer of the university's police department, who opined that without its bolt the AR-15 was not a firearm. Nevertheless, Shelton's immediate supervisor told Shelton that the entire rifle would have to be stored in the housing office. Shelton responded with a somewhat testy letter in which he said that both the housing manager and the police force had "represent[ed] themselves as having (and ... undoubtedly do have) final say over, and superior knowledge of, firearms"; "nothing in my job description nor even in the unwritten rules that we live by ... requires me to surrender personal property by your command"; "please do not impose your personal bias or imported Massachusets [sic ] gun control ideology on the rest of us"; and "any act to deprive me of my property [elsewhere described in the letter as 'this relic of war which I hold dear'] will be met with swift legal action."

The supervisor responded in a memo directing Shelton to store the rifle in the housing office. The memo explained that "your room is also your place of work. Expectedly, students come by RA rooms for advice, counseling, help and support. You conduct business on behalf of the University. Storage of or display of firearms is inappropriate. This has now become an employment issue. Your cooperation in this matter is fully expected. Failure to comply will result in review of your continued status as a Resident Assistant." To this Shelton replied: "The disabled AR-15, along with various other harmless Marine Corps equipment and photographs, constitute a political statement which I am entitled to make.... I like being an R.A. I like my AR-15 in my sight and well protected, too. The problem is not mine, but yours. You have created it. It is up to you to prove that I am in violation of some solid policy related to my job. Deprivation of private property or the use and enjoyment thereof does not constitute reasonable expectation of an employee by an employer without due compensation. Therefore leave me in peace and let me study. I mean no insubordination or disrespect." And in fact, despite his strong words, Shelton placed his gun in the housing office. But shortly after checking it in he became concerned about its safety, removed it from the office, and took it off campus. His supervisor, seeing from the records of the housing office that Shelton had checked the gun in and then out again in short order concluded that he was playing games with her and, without checking his room to see whether the gun was there, fired him.

Shelton appealed the dismissal to the director of residential services, who, after an informal hearing at which Shelton and others testified, decided not to fire him, but also not to rehire him for the next year. The Dean of Students ratified this decision.

If the university had decided not to rehire Shelton because it disagreed with his...