In 1994, the 2nd Circuit Court of Appeals upheld a jury's finding that the City College of New York violated the First Amendment rights of Professor Leonard Jeffries. The jury found that the College removed Jeffries as chair of the Black Studies Dept. because of a controversial speech. The trial court and the 2nd Circuit relied on Supreme Court precedent that allowed a government employer to take action against an employee based on the employee's speech about matters of public concern only when the employer could show that the speech hampered the effective and efficient operation of the agency.
In April 1995, the 2nd Circuit reversed its earlier ruling based on the U.S. Supreme Court's ruling in WATERS ET AL. v. CHURCHILL ET AL., 114 S. Ct. 1878; 1994 U.S. LEXIS 4104 (U.S. 1994) where the Court held that an employee can be dismissed after a "reasonable" investigation if the employer finds that the speech had the potential to disrupt the efficient operation of the workplace
Appeal from a judgment of the United States District
Court for the Southern District of New York (Conboy, J.). Following a jury verdict in favor of a controversial professor at City College of New York, the
district court found that defendant university officials violated his First Amendment rights by limiting his term as Black Studies department chairman, and that defendants' acts were unprotected by qualified immunity. The district court ordered defendants to reinstate the professor as department chairman, and
awarded punitive damages against six defendants.
Held: defendants did violate the professor's First Amendment rights; defendants were not shielded by immunity; and reinstatement was an appropriate remedy. We find inconsistencies in the jury's special verdict responses and we vacate the punitive damage awards and remand for new trial solely on that issue.
AFFIRMED in part, VACATED in part, and REMANDED.
OPINION: McLAUGHLIN, Circuit Judge:
In the summer of 1991, Leonard Jeffries was the Black Studies department chairman at City College of New York ("City College"), and he was the keynote speaker at an off-campus symposium on black culture. He spoke predominantly on the bias he perceived in New York State's public school curriculum. During the speech, Jeffries made several derogatory statements, particularly about Jews. The speech ignited a firestorm of controversy, the upshot being the decision by university officials to reduce Jeffries' upcoming term as department chairman from three years to one.
Jeffries sued the university officials in the United States District Courfor the Southern District of New York (Kenneth C. Conboy, Judge), alleging that they reduced his term because of the content of his speech, in violation of the First Amendment. After a jury trial, the district court found six of the 14 defendant officials liable for violating Jeffries' rights. The court reinstated Jeffries as department chair, and awarded him $ 360,000 in punitive damages.
The defendants appeal, arguing that: (1) they did not abridge Jeffries' free speech rights; (2) they are protected from damage awards by the doctrine of qualified immunity; (3) reinstatement was improper; and (4) the punitive damage awards should be vacated as inconsistent with the jury's special verdict findings.
FACTS:
A. The Parties
Jeffries is a professor at City College, and the chairman of the Black Studies department there. Bernard Harleston is the President of City College, which is part of the City University of New York ("CUNY") system. Ann Reynolds is the Chancellor of CUNY. James Murphy is the Chairman of CUNY's Board of Trustees; Edith Everett is Vice-Chair. The remaining defendants are CUNY Trustees. Jeffries has chaired the Black Studies department since its creation in 1972. The CUNY by-laws state that a chairman's term lasts three years. Jeffries' sixth consecutive term was due to expire June 30, 1991, and on June 5, the Black Studies professors nominated him to another term as chairman....
B. The Speech
On July 20, Jeffries delivered his now notorious speech in Albany, at the Empire State Black Arts and Culture Festival. Jeffries was introduced to the audience as the chairman of City College's Black Studies department, and as a former member of a committee organized to review the New York public school curriculum's treatment of minorities. The Festival was not affiliated with CUNY in any way.
Jeffries spoke for more than an hour, primarily criticizing the racial and ethnic biases he perceived in the public school curriculum. During the speech, Jeffries made several comments about Jews that were hateful and repugnant. For example, Jeffries launched several ad hominem invectives at specific state and federal officials who supported the curriculum, calling one an "ultimate, supreme, sophisticated, debonair racist," and a "sophisticated, Texas Jew." Jeffries also told his audience that Jews had a history of oppressing blacks. He said that "rich Jews" had financed the slave trade, and that Jews and Mafia figures in Hollywood had conspired to "put together a system of destruction of black people" by portraying them negatively in films. C. The Aftermath
Jeffries speech, which was initially broadcast on an Albany television station, received extensive media attention in the New York City area. On August 8, Harleston released a statement condemning Jeffries for undermining CUNY's policy of striving toward racial, ethnic and religious harmony, and indicating that he would "initiate a thorough review of this situation." Reynolds, Murphy, and Everett issued a press release the same day, saying that CUNY would "examine Professor Jeffries' actions and statements and, if warranted, ... pursue vigorously with City College the remedies that may be appropriate and
available...."
D. The Board Meetings
The Board of Trustees met in late October, with Jeffries' reappointment on the agenda. Harleston recommended that the Board limit Jeffries' term to one year. The Vice-Chancellor for Legal Affairs, an attorney, warned the Trustees that they could not sanction Jeffries based on the content of his speech. Despite the Vice-Chancellor's admonition, Trustees Edith Everett, Herman Badillo, Blanche Bernstein, and Harold Jacobs voted to reject Jeffries' nomination outright, candidly explaining that their decision rested on the content of his speech. Nine other Trustees voted for Harleston's recommendation, however, and approved a one-year term for Jeffries, to expire at the end of June, 1992. (Trustee Sylvia Bloom abstained from the vote because she had made statements earlier criticizing Jeffries' views.)
Harleston wrote Jeffries of the Board's vote. In his letter, Harleston said that the speech threatened recruitment, fundraising, and CUNY's relationship with the community. The Provost and Social Sciences Dean made oral follow-up reports to Harleston on Jeffries' performance. They recounted angry exchanges that Jeffries initiated with faculty and administrators regarding his limited term, as well as a bizarre tantrum that Jeffries threw during an interview with a student reporter from Harvard. In December, Harleston decided to replace Jeffries as chairman....
The Jury's Response:
To focus the jury's attention on the proper issues, Judge Conboy submitted four specific questions for the jury to answer. The jury returned the following responses:
1. Has the plaintiff proven by a preponderance of the evidence that Leonard
Jeffries' July 20, 1991 speech in Albany was a substantial or motivating factor in the denial of plaintiff's three-year term as Chairman of the Black Studies Department? "YES."
2. Have the defendants shown by a preponderance of the evidence that Leonard Jeffries would have been denied a full three-year term as Chairman of the Black Studies Department even had Jeffries not made his July 20, 1991 speech? "NO."
3. Have the defendants proven by a preponderance of the evidence that Leonard Jeffries' July 20, 1991 speech hampered the effective and efficient operation of the Black Studies Department, the College, or the University? "NO."
4. If the answer to question #3 was no, have the defendants proven by a
preponderance of the evidence that the defendants were motivated in their
actions by a reasonable expectation that the plaintiff's July 20, 1991 speech would cause the disruption of the effective and efficient operation of the Black Studies Department, the College, or the University? "YES."
With this special verdict in hand, Judge Conboy balanced Jeffries' speech
interest against the defendants' interest in running CUNY efficiently. He found that the subject of Jeffries' speech -- the state public school curriculum -- substantially involved a matter of public concern. Judge Conboy then noted that the jury had found that Jeffries' speech did not interfere with CUNY operations. Based on these findings, he concluded that Jeffries' interests were greater, and, accordingly, that the defendants had violated his First Amendment rights....
DISCUSSION
On appeal, the defendants argue that the district court erred because: (1)
the defendants did not violate Jeffries' First Amendment rights; (2) they were shielded from liability by qualified immunity; (3) reinstatement was improper; and (4) the punitive damage awards were inconsistent with the special verdict findings. We address these arguments in turn.
I. The First Amendment
Central to our constitutional democracy is the right to speak on political or social matters without fear of retribution by the government. See generally Palko v. Connecticut, 302 U.S. 319, 327, 82 L. Ed. 288, 58 S. Ct. 149 ....
To determine whether the government violated an employee's free speech rights, the employee's interest in speaking on matters of public concern must be balanced against the government's interest in rendering public services efficiently. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). We review de novo the district court's balancing of interests. See Connick v. Myers, 461 U.S. 138, 150 n.10, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).
To establish a prima facie case that the government fired an employee in violation of his free speech rights, the employee must demonstrate that the speech: (1) involved a matter of public concern; and (2) was a substantial or motivating factor in the government's decision to fire him. See Frank v. Relin, 1 F.3d 1317, 1328-29 (2d Cir.), cert. denied, <=16> 126 L. Ed. 2d 569, 114 S. Ct. 604 (1993). The former is a question of law; the latter, of fact. Id. at 1329.
Jeffries' speech unquestionably involved public issues. The speech criticized the public school curriculum (and its supporters) for reflecting bias against minorities, and discussed the history of black oppression. These issues are suffused with social and political hues. True, the tenor of Jeffries' speech was less than ingratiating, and, as evidenced by the ensuing uproar, its content affronted many who heard it or, at least, heard about it. But First Amendment protection does not hinge on the palatability of the presentation; it extends to all speech on public matters, no matter how vulgar or misguided. See <=18> Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 29 L. Ed. 2d 1, 91 S. Ct. 1575 (1971) ("So long as the means are peaceful, the communication need not meet standards of acceptability.").
Jeffries also satisfied the second Pickering prong. The evidence substantially supported the jury's finding that defendants' decision to remove Jeffries was motivated by the content of the Albany speech. Before the speech, Harleston was eager to send premature congratulations to Jeffries on his reappointment. After the speech, Harleston asked two administrators to determine whether Jeffries was performing his duties as chairman adequately. Even though both reported favorably on Jeffries' performance, Harleston proceeded to recommend that the Board reappoint Jeffries for only a one-year term.
Then, the Board, with no evidence that Jeffries' performance was deficient or that the speech threatened to harm CUNY, voted to limit Jeffries' term. Four Trustees voted against reappointment outright, candidly conceding that they did so because of the content of Jeffries' speech. Likewise, at the next Board meeting, where the Board approved Gordon as the new department chairman, several Trustees admitted at trial that Jeffries' performance was not discussed at all. The jury, therefore, had ample basis to find that the speech was the impetus for the defendants' action. Thus, Jeffries' speech was a substantial or motivating factor behind the vote to limit his term, and Jeffries has made out a prima facie case.
Even though the employee makes out a prima facie case that the defendants sanctioned him for his speech, the defendants may still escape liability by showing either that: (1) they would have fired the employee regardless of the speech; or (2) the employee's conduct interfered with the "effective and efficient fulfillment of [defendants'] responsibilities to the public." Frank, 1 F.3d at 1329 (quoting Connick, 461 U.S. at 150).
Having carefully reviewed the record, we agree with the district court that the jury could reasonably have concluded that the defendants would not have removed Jeffries but for the speech. It was only after the speech that Harleston began expressing concerns about Jeffries' performance; not three weeks before, he had congratulated Jeffries on his reappointment. While the defendants offered evidence that Jeffries had exchanged heated words with other CUNY personnel regarding CUNY's reaction to his speech and had berated a student reporter from Harvard, there was no evidence that these incidents were ever considered by the Board as a reason to deny reappointment. The record shows that the Trustees did not remove Jeffries for any reason other than his speech.
Nor have the defendants shown that Jeffries' speech interfered with CUNY's operation. See Frank, 1 F.3d at 1329. Generally, interference in this context entails impairing employer discipline, causing disharmony among co-workers, disrupting close working relationships where loyalty and confidence are essential, failing to perform one's duties, or frustrating the regular operation of the government enterprise in question. See Pickering, 391 U.S. at 570-73.
How much interference the government must show to justify sanctioning an employee for his speech will vary, depending on the degree that the speech involved matters of public concern. See Connick, 461 U.S. at 146-47. If the speech only tangentially touched on public issues, the government need not wait until "the disruption of the office and the destruction of working relationships is manifest" before taking action. Id., 461 U.S. at 152. If, alternatively, the speech substantially addressed public issues, the government must show the statements "actually undermined the effective and efficient operation" of the employee's department. Piesco, 933 F.2d at 1159. Because, as we held above, Jeffries' speech substantially concerned public issues, the defendants shoulder the weightier burden of showing that the speech caused substantial disruption at CUNY.
Endeavoring to lighten their burden, the defendants argue that they need only demonstrate a reasonable expectation that Jeffries' speech would eventually cause disruption because Jeffries held a highly visible, policymaking position. True, the government generally has more discretion to sanction an employee who serves in a "confidential, policymaking, or public contact role" than one who performs ministerial functions, <=26> Rankin, 483 U.S. at 390-91 (1987) (the employee's responsibilities determine whether his statement "somehow undermines the mission of the public employer"); Piesco, 933 F.2d at 1157 (a high-ranking public official must act with caution when commenting on matters integral to that person's official responsibilities); Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255, 261 (D.C. Cir. 1988) (government's burden of proving interference is less stringent when the employee holds a position for which loyalty is essential). The defendants, however, have not shown how Jeffries, by virtue of his position as department chair, could undermine CUNY's mission with his speech. See Rankin, 483 U.S. at 390....
In short, to rebut Jeffries' prima facie case, the defendants must show substantial interference. We find that the defendants have provided meager evidence at best that Jeffries' speech had any real disruptive effect on CUNY operations, and thus, have fallen short of their burden....
In sum: We affirm the district court's holding that the defendants violated Jeffries' First Amendment rights; we affirm that defendants were not shielded by qualified immunity; and we affirm the order reinstating Jeffries to his department chair for two years; however, we vacate the award of punitive damages and remand for a new trial solely on that issue.
AFFIRMED in part, VACATED in part, and REMANDED.