Thomas Sobol, to study the status of the curriculum in the state's public schools and the treatment of people of color in that curriculum (See Plaintiff's "Affidavit in support of Plaintiff's Motion for Summary Judgment," para. 7). Professor Jeffries was given the task of researching the impact of the public school curriculum on African Americans. Following publication of the task force's findings, a storm of controversy broke over the participants, who then proceeded to attack each other. The ensuing debate absorbed the energies of the press and commentators on the American scene, across the nation. Indeed, in his speech, Professor Jeffries responds to criticisms that had been leveled at him and his ideas by others in both academic and political life.
Reviewing the record with respect to Professor Jeffries' July 20, 1991 speech, the Court finds that the speech substantially involved matters of public concern and "should be accorded significant weight in the Pickering balance." Piesco v. City of New York, Dept. of Personnel, 933 F.2d 1149, 1157 (2d Cir.), cert. denied, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991). The speech was part of a debate that has broad and extremely significant implications for American society. Possible reform of the educational curriculum, and the introduction of multicultural perspectives in the classroom, to whatever degree thought prudent, represent a critical dialogue that reaches the deepest political and social values of the United States. While it is quite understandable that some may consider certain statements in professor Jeffries' speech to be offensive, these statements do not dilute the high degree of public concern that is at the core of the speech.
On the other side of the scale, the Court must weigh the right of the University to function effectively and efficiently. In weighing this right, the Court defers to the jury's factual findings. The jury found that professor Jeffries' July 20, 1991 speech did not hamper the effective and efficient operation of the Black Studies Department, the College, or the University. However, the jury also found that the defendants were motivated in their actions by a reasonable expectation that the plaintiff's speech would cause the disruption of the effective and efficient operation of the Black Studies Department, the College, or the University.
The question facing the court is whether the defendants, in order to outweigh the free speech rights of the plaintiff, must show actual hampering of the effective and efficient operation of the Black-Studies Department, the College, or the University, or whether the "reasonable expectation" that the plaintiff's speech would cause disruption is enough to overcome the plaintiff's first amendment rights. We recognize that in Connick the Supreme Court stated that it did "not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Connick, 461 U.S. at 152. However, the Supreme Court cautioned "that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern." Id.
Many courts since Connick have held that where a public employee's speech substantially involves matters of public concern, the defendants must show actual hampering of the effective and efficient operation of the governmental services in order to outweigh the employee's first amendment rights. A showing that the defendants were motivated in their actions by a "reasonable expectation" that the employee's speech would cause the disruption of the effective and efficient operation of the government office is insufficient. See, e.g., Piesco, 933 F.2d at 1159-60; Melton v. City of Oklahoma City, 879 F.2d 706, 715-16 (10th Cir. 1989); Roth v. Veteran's Admin. of Government of United States, 856 F.2d 1401, 1407 (9th Cir. 1988); Matherne v. Wilson, 851 F.2d 752, 761 n.53 (5th Cir. 1988); Zamboni v. Stamler, 847 F.2d 73, 78 (3rd Cir.), cert. denied, 488 U.S. 899, 102 L. Ed. 2d 233, 109 S. Ct. 245 (1988).
Because the jury found no actual hampering and because we have found that the plaintiff's speech substantially involved matters of public concern, we hold that the plaintiff's interest in making his speech outweighs the University's interest in the effective and efficient operation of its services. Accordingly, the Court finds that the University's denial to Professor Jeffries of a full three-year term as Chairman of the Black Studies Department constitutes a violation of plaintiff's first amendment rights.
We will, therefore, submit the first amendment claim with the fourteenth amendment claim to the jury for further deliberations on the questions of individual liability and punitive damages.
KENNETH CONBOY, U.S.D.J.
Dated: New York, New York
May 11, 1993