Opinion
No C-99-0676 VRW
October 11, 2001
ORDER
In its June 6, 2000, order, the court dismissed plaintiff's claims against the San Leandro Unified School District because such claims were barred by the Eleventh Amendment. See 6/6/00 Order (Doc. #38). Although not expressly stated in that order, this ruling also dismissed plaintiff's claims against Superintendent Thomas Himmelberg (defendant) in his official capacity. As a result, plaintiff is left with claims against defendant only in his individual capacity. Defendant now moves for summary judgment. Doc. #48. For the reasons set forth below, defendant's motion is GRANTED.
I
Plaintiff is a high school English teacher in the San Leandro Unified School District. Defendant is the district superintendent. In the fall of 1997, plaintiff became the focal point of a community wide controversy concerning the "acceptance" or "promotion" of homosexuality at the high school. See Def. Br. (Doc. #48) at 2. Plaintiff was active in advocating tolerance of homosexuality. He helped establish the faculty Gay-Straight Alliance at the high school, hung pink triangles on his classroom wall and discussed such issues as diversity and the rights of gay and lesbian students in his English class. See id. at 2; Pl. Opp. Br. (Doc. #62) at 1.
The parents of two of defendant's students formed a group known as Parents Interested in Public Education (PIPE) in order to attempt to stop the discussion of social issues in the classroom and particularly to combat what they saw as the "promotion" of homosexuality. See Def. Br. (Doc. #48) at 3. PIPE's goal was to pressure teachers to comply with their goal and to pressure the school to terminate those who would not comply. See id. Tension in the community reached its peak at a November 18, 1997, school board meeting where PIPE parents denounced plaintiff and other teachers for promoting social issues in the classroom. See id.
On November 24, 1997, plaintiff commenced his English class by discussing the events of the school board meeting. One of his students, Jason Godkin, whose parents were in PIPE, stood up and walked out of the classroom. See Pl. Opp. Br. (Doc. #62) at 12. Plaintiff alleges that he explained this behavior to his class by mentioning that the student's parents had instructed him to behave as he did. See id. Another student, Elizabeth Lanet, whose parents were also in PIPE, was taking notes on plaintiff's comments and later claimed that she felt targeted by certain comments of plaintiff. See Def. Br. (Doc. #48) at 3. The next day, the parents of both Godkin and Lanet filed formal complaints against plaintiff. See id. Following an investigation of disputed rigor, defendant issued letters of "disciplinary warning" to plaintiff. Id.
Plaintiff asserts that this disciplinary action constituted retaliation for the exercise of plaintiff's constitutionally protected free speech and had a "profoundly chilling effect" on both his and other teachers' speech at the school. Pl. Opp. Br. (Doc. #62) at 17. Plaintiff, who is African-American, further alleges that he was unfairly targeted because of his race. In his second amended complaint (Doc. #24), which is challenged by defendant's present motion, plaintiff asserts claims pursuant to 42 U.S.C. § 1981 and 1983. Defendant seeks summary judgment on the section 1983 claim based on the doctrine of qualified immunity and on the section 1981 claim based on a purported lack of evidence of defendant's discriminatory intent.
In reviewing a summary judgment motion, the court must determine whether there are genuine disputed issues of material fact, resolving any doubt in favor of the party opposing the motion. Matsushita Electric Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 587 (1986). The burden of establishing that there are no genuine issues of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the nonmoving party would bear the burden of proof at trial, the moving party may meet its burden by pointing out — not by a conclusory statement but by demonstration — the absence of evidence to support the nonmoving party's case. Id at 325-26. Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).
II
The doctrine of qualified immunity shields public officials from individual liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When performing discretionary functions, such as, in this case, filing a disciplinary letter against plaintiff, defendant is entitled to qualified immunity if he "reasonably could have believed that [his] conduct was lawful `in light of clearly established law and the information [that he] possessed.'" Cohen v. San Bernardino Valley College, 92 F.3d 968, 973 (9th Cir. 1996), citing Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989)
In assessing a defense of qualified immunity, deciding whether plaintiff's claimed right was "clearly established" is the central inquiry, for "[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19. In order for a right to be clearly established, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "[B]efore being charged with monetary liability, public officials must be given clear notice that their conduct is unlawful." Brewster v. Board of Educ., 149 F.3d 971, 977 (9th Cir. 1998). In assessing a claim of qualified immunity, therefore, courts should not consider rights in the abstract, but "in a more particularized, and hence more relevant sense." Anderson, 483 U.S. at 640.
Unsurprisingly, the parties disagree on the appropriate formulation of the right that plaintiff alleges was violated. Defendant claims that the right in question, if defined with requisite specificity, is the right "to depart from classroom scholastic instruction to defend his outside political positions, inside the classroom and criticize the * * * views of the parents of his classroom students, in the classroom and before those students." Def. Br. (Doc. #48) at 7. Plaintiff claims that the right violated was his right to speak "about racial diversity and tolerance for gay and lesbian people," in his classroom, "as mandated by the State of California." Pl. Opp. Br. (Doc. #62) at 22. The appropriate formulation lies somewhere in between.
It is certainly possible to speak about racial diversity and tolerance for gays and lesbians as part of classroom instruction, perhaps particularly in an English class; literature often touches such issues. Apparently, plaintiff has done precisely this in the past. When speaking about the events at the school board meeting, however, plaintiff was, as defendant points out, departing from scholastic instruction. But plaintiff's discussion was not as narrowly personal as defendant suggests. Indeed, as defendant notes in its brief, in San Leandro in 1997 tolerance of homosexuality was a "public issue." Def. Br. (Doc. #48) at 2. Accordingly, the court finds that the right to be considered, formulated at the appropriate level of specificity and relevance, is the right to depart from classroom instruction in order to discuss matters of public concern.
Public employees have a general First Amendment right to comment on matters of public concern without fear of reprisal. Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Board of Educ., 391 U.S. 563, 574 (1968). This right is balanced by the public employer's interest in the effective and efficient fulfillment of its responsibilities. Connick, 461 U.S. at 150-51; Pickering, 391 U.S. at 568. "In conducting this balancing, courts must give government employers `wide discretion and control over the management of [their] personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch.'" Brewster, 149 F.3d 971, 979, quoting Connick, 461 U.S. at 151.
This wide discretion granted to public employers is narrowed in the educational arena. See Boring v. Buncombe County Bd. of Educ., 98 F.3d 1474, 1480 (4th Cir. 1996) ("The Supreme Court has long recognized that educational institutions occupy a unique place in First Amendment jurisprudence."). Out of recognition of the essential role of teachers and their "relation to the effective exercise of rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment," the Supreme Court has counseled against regulation of teachers that leads to "inhibition of freedom of thought, and of action upon thought." Shelton v. Tucker, 364 U.S. 479, 487 (1960). The danger of a chilling effect is a particular concern when regulating the speech of teachers and the Supreme Court has stated that "[t]he danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed." Keyishian v. Board of Regents, 385 U.S. 589 (1967).
As defendant notes, teachers do not possess the unfettered right to control school curricula. See Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir. 1990). Teachers may also be disciplined for failing to follow school rules that limit speech, when those rules are designed to ensure that students "learn whatever lessons [an] activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993). With respect to such restraints, several courts have stressed the need for prior notice of disfavored conduct. See, e. g., id. at 453 ("Even if a school may prohibit a teacher's statements before she makes them, * * * it is not entitled to retaliate against speech it never prohibited."). In the present matter, the San Leandro school system apparently did have a policy against controversial discussions. Plaintiff alleges that this policy was not distributed until after he was disciplined. See Pl. Opp. Br. (Doc. #62) at 1. This policy has since been rescinded and the parties seem to agree that it was unreasonably vague. See id. at 29.
While plaintiff is correct that teachers retain free speech rights in the classroom, plaintiff does not cite any cases that hold that a teacher may depart from classroom instruction in order to initiate discussion on a matter of public interest. Indeed, based on the court's reading of the case law, the issue whether, pursuant to the First Amendment, a teacher may depart from classroom instruction to discuss a controversial matter of public interest without risk of reprimand would be one of first impression in the Ninth Circuit. This court need not decide this issue now, for the lack of clarity in the law compels a finding that defendant did not violate "clearly established" statutory or constitutional rights.
The "Letter of Disciplinary Warning" (Doc. #64, Exh U) written by defendant contains some dubious findings, including that plaintiff displayed "[d]isrespect for sexual orientation." Id at 3. Nevertheless, the overriding concern evidenced in the warning letter is that plaintiff departed from classroom instruction and, in the process, singled out particular students and their parents. Plaintiff contends that it is his duty to discuss matters such as those discussed at the school board meeting and his evident desire to promote tolerance is highly commendable. But what plaintiff does not establish is that his comments were imbedded in classroom instruction of English. Under these circumstances, defendant reasonably could have believed that conducting an investigation as a result of complaints stemming from plaintiff's behavior and placing a letter of disciplinary warning in plaintiff's file would be lawful. As a result, defendant is entitled to qualified immunity and motion for summary judgment on plaintiff's section 1983 claim is GRANTED.
III
In order to succeed with his racial discrimination claim, pursuant to 42 U.S.C. § 1981 and § 1983, plaintiff must prove defendant acted with discriminatory intent. See Stones v. Los Angeles Community College Dist, 796 F.2d 270 (9th Cir. 1986). Plaintiff has produced no direct evidence of discriminatory intent. Lacking such evidence, plaintiff may shift the burden of production to defendant if plaintiff can make a prima facie showing of discrimination under the test of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Stones, 796 F.2d at 274. As part of making a prima facie showing of discriminatory intent under this test, plaintiff must show that similarly situated non-minority employees were treated differently. McDonnell Douglas, 411 U.S. at 802. Plaintiff has not made this showing.
Plaintiff has produced evidence indicating that other teachers engaged in social and political discussions with their students. See Pl. Opp. Br. (Doc. #62) at 11. Plaintiff has not produced evidence, however, that another teacher had charges filed against him or her by parents under similar circumstances with dissimilar results. The complaints triggered defendant's actions. Without evidence of similar complaints, plaintiff cannot make a prima facie showing of intentional discrimination. As a result, summary judgment on plaintiff's racial discrimination claims is GRANTED.
IV
Plaintiff has filed an ex parte request for permission to file opposition in excess of 25 pages pursuant to Civ. LR 7-11. Docs. #56 and 61. Plaintiff represents that defendant counsel does not oppose this request. See Doc. #61 Plaintiff also objects to defendant's separate statement of undisputed facts. Doc. #66. While separate statements of undisputed facts are required when filing for summary judgment in some districts, such statements are neither required nor provided for in the local rules of this district. As a result of defendant's filing of this separate statement, both party's filings depart from the local rules. Because of these unusual circumstances, the court will exercise its discretion to allow these submissions to be filed.
In sum, defendant's motion for summary judgment (Doc. #48) is GRANTED. Plaintiff's ex parte motion to exceed page limit (Docs. #56 and 61) is GRANTED. Plaintiff's objection to defendant's separate statement (Doc. #66) is DENIED. The clerk is directed to close the file and terminate all pending motions.
JUDGMENT [FRCP 58]
This action came on for decision before the court, the Honorable Vaughn R. Walker, District Judge, presiding, and the issues having been duly considered and a decision having been duly rendered.
In pursuant to the ORDER GRANTING defendants' motion for summary judgment filed October 11, 2001, IT IS ORDERED AND ADJUDGED that judgment is entered in favor of defendants.