Silva v. University of New Hampshire
Decision Date | 15 September 1994 |
Docket Number | Civ. No. 93-533-SD. |
Citation | 888 F. Supp. 293 |
Parties | J. Donald SILVA v. The UNIVERSITY OF NEW HAMPSHIRE, et al. |
Court | U.S. District Court — District of New Hampshire |
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Paul McEachern, Michael P. McDonald, Portsmouth, NH, for plaintiff.
Jack B. Middleton, Manchester, NH, for defendant.
PlaintiffJ. Donald Silva, an Instructor of Communications at the Thompson School of Applied Science at the University of New Hampshire (UNH or the University) and a tenured member of the UNH faculty, brings this action pursuant to 28 U.S.C. §§ 2201and2202,42U.S.C. §§ 1983and1988, and New Hampshire law, against defendants UNH; Dale Nitzschke, President of UNH;1Dr. Brian A. Giles, Director of the Thompson School; Neil B. Lubow, Associate Vice President for Academic Affairs at UNH; Mary M. Clark, Professor of English at UNH and member and chair of the UNH Sexual Harassment Appeals Board which adjudicated Silva's case ("Appeals Board"); Elizabeth Dolan, Associate Professor at UNH and member of the Appeals Board; Stephen Fink, Professor at UNH and member of the Appeals Board; and Shannon Cannon and John Denning, students at UNH and members of the Appeals Board.
Silva seeks (1) a declaratory judgment that the defendants' conduct violates his right to freedom of speech under the First and Fourteenth Amendments;(2) a declaratory judgment that the defendants' conduct denies Silva his civil rights under color of state law in violation of section 1983;(3) a permanent order enjoining defendants from acting to prevent Silva from teaching at UNH or from otherwise punishing him on the basis of protected speech; (4) damages under section 1983 for the alleged violation of Silva's First Amendment right to freedom of speech and his Fourteenth Amendment right to due process; (5) damages under New Hampshire law based on allegations of breach of contract and breach of a contractual duty of good faith and fair dealing; and (6) an award of reasonable costs and attorneys' fees pursuant to section 1988.
Presently before the court are plaintiff's motion for a preliminary injunction, to which defendants object, and defendants' motion for summary judgment,2 to which plaintiff objects.
An evidentiary hearing on plaintiff's motion for a preliminary injunction was held on September 12, 1994.At said hearing, the parties each made offers of proof based on the voluminous record before the court on defendants' motion for summary judgment.In addition, Silva and defendant Lubow testified at said hearing.
The University System of New Hampshire USNH Sexual Harassment Policy states:
Plaintiff's Memorandum of Law in Opposition to Summary Judgment, Exhibit 1 (Affidavit of John E. Mulhern, Jr.), Enclosure # 3.
Letter of April 30, 1992, from J. Donald Silva to Dr. Brian Gilesat 2(Silva Deposition, Exhibit 7).
Two days later, during the second technical writing class session at issue, Silva employed the following pedagogical approach.
Silva's April 30Letter to Giles, supra, at 1-2.
At the preliminary injunction hearing, Silva testified that he does not understand the relationship between the USNH Sexual Harassment Policy and the remarks he made in class.
In his affidavit, Silva states, Silva Affidavitat 2.Further, at his deposition, Silva engaged in the following exchange with defendants' counsel.
On the date of the belly dancing statement, six students from Silva's technical writing class met with Dr. Jerilee A. Zezula, an Associate Professor of Applied Animal Science at the Thompson School, to complain about Silva's classroom statements.Dr. Zezula's description of this meeting is in a three-page document dated February 26, 1992, entitled "Inves...
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...adherence to academic curriculum established by the school and other academic speech in which teachers engage. Cf. Silva v. Univ. of N.H., 888 F.Supp. 293, 313-14 (D.N.H.1994). 9. For First Amendment purposes, it is irrelevant whether the speech at issue here was restricted or compelled. Se......
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