Smith v. Southern Maine Community College
| Decision Date | 31 May 2005 |
| Docket Number | CUM AP-03-62 (2007) |
| Parties | ROBERT SMITH, Petitioner v. SOUTHERN MAINE COMMUNITY COLLEGE, ET AL., Respondents |
| Court | Maine Superior Court |
This matter is before the court on the 80B petition of Robert Smith for judicial review of his termination from employment by the respondent Southern Maine Community College (SMCC). M.R. Civ. P. 80B.
Since the Fall of 1998, the petitioner has been periodically hired by SMCC to teach as an adjunct instructor.[1] In September 2003, he began teaching a Psychology course at the college but he did not have a written employment agreement.
On September 4 and 5, 2003, SMCC interviewed students in response to complaints about the petitioner's teaching and his classroom presentation of two video clips to students. One depicted World War H killings. The other, characterized by some students as "pornography", depicted consensual sexual activity between two men. Notes of those interviews are included in the Record submitted by the petitioner. (See Rec Tab # 7). Subsequent to those interviews, the petitioner met with the respondent Janet Sortor, who was the Dean of Academic Affairs. The scope of this meeting is in dispute and, particularly, whether it constituted a "hearing" for the purposes of due process. Following that meeting, the petitioner's employment was terminated by SMCC.
On September 29, 2003, the petitioner wrote to Sortor requesting that the reasons for his termination be set forth in writing. (Rec. Tab # 9). In response, SMCC's General Counsel Derek Langhauser sent a letter to the petitioner dated October 23, 2003, enumerating a number of grounds for the petitioner's dismissal, including the teaching method and course material used by the petitioner in his September 5, 2003 class. (Rec. Tab # 9). Other grounds for dismissal recited by Langhauser included the petitioner's "fail[ure] to teach the course's standard curriculum and [his statement] that he did not intend to do so" his failure "to provide a timely course syllabus," and his failure "to teach the assigned subject matter in a manner consistent with recognized academic and professional standards and practices." (Id.). The petitioner was given "the opportunity to present his side", but did not deny the students' accounts. (Rec. Tab # 9).
The petitioner filed an 80B petition, sinced amended, seeking review of the decision to terminate his employment.[2] In conjunction with that filing, he also submitted a record of the proceedings being reviewed: SMCC's prior Employment Agreements with the petitioner; SMCC's Course Catalog for 2003-2004, with a description of the petitioner's psychology course; SMCC's Fall 2003 Faculty Resource Handbook; a quiz that the petitioner gave to students; SMCC's notes from interviews with students regarding the petitioner; the payment schedule for the petitioner's Fall 2003 contract and a check for the first payment; and correspondence between the petitioner and SMCC.[3] M.R. Civ. P. 80B(e).
In sum, the petitioner alleges that SMCC summarily terminated his employment as an Adjunct Professor of Psychology in violation of his rights of free speech and due process under the constitutions of the United States and the State of Maine.
In an 80B appeal, the court reviews a governmental decision for errors of law, abuse of discretion or findings of fact unsupported by the record. Yates v. Town of Southwest Harbor 2001 ME 2, PF10, 763 A.2d 1168. When "reviewing an administrative agency decision, the issue before the court is not whether it would have reached the same conclusion as the agency, `but whether the record contains competent and substantial evidence that supports the result reached.'" Seider v. Bd. of Exam'rs of Psychologists, 2000 ME 206, ¶8, 762 A.2d 551, 555 (quoting CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶6, 703 A.2d 1258, 1261).
The petitioner contends that his termination by SMCC was a violation of his right to engage in constitutionally protected speech within the meaning of the First Amendment to the United States Constitution and Article I, section 4 of the Maine Constitution. In order to prove a violation, the petitioner "must show that (1) his classroom speech was constitutionally protected and (2) the speech was a motivating factor in the decison" to fire him. Silva v. Univ. of New Hampshire, 888 F.Supp. 293, 312 (D. NH 1994) (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 174, 187 (1977)).
This court is mindul of the vital importance of open communication in educational settings and "the proposition that teachers retain their First Amendment right to free speech in school," Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993) (citing Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 506 (1969), while recognizing "that public schools may limit classroom speech to promote educational goals." id. Given these competing interests and applicable First Amendment precedent, a court may uphold a school's regulation of a "teacher's classroom speech if: (1) the regulation is reasonably related to a legitimate pedagogical concern, and (2) the school provided the teacher with notice of what conduct was prohibited." id "The relevant inquiry is: based on existing regulations, policies, discussions, and other forms of communication between school administration and teachers, was it reasonable to expect the teacher to know that his conduct was prohibited." Silva, 888 F.Supp. at 312 (internal citations omitted).
In the instant case, the court concludes that the petitioner had sufficient notice of prohibited teaching methods by virtue of SMCC's sexual harassment policy (the policy) included in the Faculty Resource Handbook. (Rec. Tab #4). The policy reads in relevant part:
"Examples of Sexual Harassment" under the policy include "[s]lurs, jokes, or degrading comments of a sexual nature, [and] the display of sexually suggestive pictures or objects." Id. The policy also provides that Id.
The court also concludes that the undisputed conduct by the petitioner was proscribed by SMCC's policy and that it is reasonable to expect that he had notice of the prohibition. See R. Tab 7 (SMCC's notes of students' accounts of the petitioner's conduct was "to weed people out" of the class and that, if students "want a class that goes by the book, this is not the class").
Id. (quoting Mailloiux v. Kiley, 448 F.2d 1242, 1243 (1st Cir. 1971)).
In light of the above, and in spite of the fact that the petitioner's students are "presumed to have possessed the sophistication of adults," id., the court finds that SMCC's regulation of the petitioner's speech was reasonably related to a legitimate pedagogical concern. Accordingly, because the petitioner was on notice that his speech was prohibited and because SMCC's regulation of petitioner's speech was reasonably related to a legitimate pedagogical concern, the court concludes that the petitioner's free speech rights were not violated. See Ward, 996 F.2d at 452.
The petitioner also challenges SMCC's decision to termninate him because he was given appropriated prior notice or an opportunity to be heard, therby depriving him of a property interest-namely, his teaching position-without due process of law. The Fourteenth Amendment to the United States Constitution and Maine's Constitution, article I, section 6-A protect individuals from deprivations of life, liberty or property by the State without due process of law. U.S. Const. amend. XIV § 1; Me. Const. art. I, § 6-A. The state and federal due process requirements are coextensive. Fichter v. Bd. of Envtl. Prot., 604 A.2d 433, 436 (Me. 1992). "When protected interests are implicated, the right to some kind of prior hearing is paramount." Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972). Therefore, "except in emergency situations due process requires that when a State seeks to terminate [a protected] interest...., it must afford `notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective." Id. at 570, n.4 (quoting Bell v. Burson, 402 U.S. 535, 542 (1971)) (emphasis in original).
Whether the petitioner was due any process prior to his termination depends upon whether a protected property interest was implicated.[4] In considering the question, the court looks to the jurisprudence of the U.S. Supreme Court and, in particular, its analysis in Roth, which involved a claim by an associate professor that the summary refusal of a state...
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