The opinion of the court was delivered by: KENNETH CONBOY
Kenneth Conboy, District Judge:
A federal jury has found that City University, without justification, punished a tenured professor on its faculty for an off-campus speech he had given, by removing him as Chairman of his academic department. It is unequivocally clear, under our Constitution, and the law enunciated on the subject by the United States Supreme Court, and in the light of the factual trial record developed in this case, that the action taken by the University was constitutionally impermissible. This is and must be the case, in spite of the hateful, poisonous and reprehensible statements made by the professor in the speech in question. This need not have been the case if the University had offered convincing, firsthand proof at trial that either the consequences of the speech disrupted the campus, classes, administration, fund-raising or faculty relations, or that the professor had turned his classroom into a forum for bizarre, shallow, racist and incompetent pseudo-thinking and pseudo-teaching. While a few shards of hearsay or self-serving evidence were offered halfheartedly by the University to suggest potentially viable defenses along these lines, the University cannot escape the astonishing picture it painted for the jury: high public and academic officials swearing under oath that they had removed the professor for tardiness in arriving at class and sending in his grades, and for asserted brutish behavior which had been either ignored or condoned by the University.
We are, accordingly, required to uphold the jury verdict on the professor's first amendment claim, and the related punitive damage award made by the jury in justifiable disgust with the conduct of the University officials who did not act, then acted for the wrong reason, then were dishonest about their motivations in testimony before the jury.
We are asked by the defendants not to reinstate the professor in the Chairmanship even if we uphold his First Amendment claim and the punitive damages associated with it. We are told that the professor has lost nothing and hence is not irreparably harmed in his dismissal, that the award of punitive damages is an adequate measure of his injury, and that the balance of equities lies in the University's favor. If the Chairmanship meant nothing, why did the University go to such lengths in the trial to justify its denial as a proper and just sanction for a cavalcade of the professor's non-speech sins? If it meant nothing, why was it bestowed upon, and indeed accepted by one of the most eminent Black Studies scholars in America, Edmund Gordon? The punitive damages were not, of course, a measure of the professor's injury but a measure of the bad faith of the defendants. In any case, to forego reinstatement in light of the punitive damage award, ironically to be paid in this case not out of the pockets of the defendants but out of the public treasury, would put a price tag on constitutional violations and we must not, and will not, denigrate the First Amendment by doing so. Accordingly, the Court will reinstate Professor Jeffries as Chairman of the Black Studies Department for a period of two years.
As for the balance of equities, the short answer is that had the University adequately established that the professor, whose teaching has after all been tolerated for twenty years, conducts his classes or his Chairmanship in a racist, anti-semitic or incompetent manner, we would not order him to be reinstated. The confused and incompetent defense record regrettably leaves us no choice but to order the reinstatement of plaintiff.
We will, however, word the permanent injunction to make it unmistakably clear that the University is in no way restricted from monitoring the Professor's classes and his on-campus stewardship of the Chairmanship, and that he may be removed from either if a good cause basis for finding abusive or indecent behavior is adequately established. We observe, with reluctance but out of necessity, that if the University decides to pursue such a course, it ought to concern itself with such matters as witnesses, stenographic records, affidavits and the like, and not rely on pious press releases and hearsay-ridden, elliptical, hand-wringing memoranda from academic deans.
With respect to the professor's second claim, based upon an asserted property interest under the Fourteenth Amendment, we agree with the defendants that the record is insufficient and, accordingly, set aside the jury's verdict. We will proportionally reduce the damage award.
Finally, we conclude that the defense of qualified immunity is not available to the defendants, in that they violated clearly established statutory or constitutional rights of which a reasonable person would have known, and in that it was not objectively reasonable for the defendants to believe that their acts did not violate authority from the United States Supreme Court, and the Courts of this Circuit.
The reasons and legal basis for all of the above findings follow.
Three weeks later, on July 20, 1991, Professor Jeffries made a speech at the Empire State Black Arts and Cultural Festival. See Plaintiff's Exhibit 3 (providing text of speech). The broad subject of the speech was the reform of the educational system to reflect diverse, and particularly minority, perspectives. It was given in response to wide criticism leveled against Professor Jeffries by some of those he attacked in his speech. Furthermore, he was speaking as an appointed consultant of the State Education Commissioner. In the speech, Professor Jeffries made strident attacks against particular individuals, and made derogatory comments about specific ethnic groups. See id.
The speech caused an outcry of protest and was condemned both within and without the University. On August 8, 1991, President Harleston wrote a letter to his City College colleagues attacking Professor Jeffries' speech as containing "clear statements of bigotry and anti-semitism." See Plaintiff's Exhibit 5, Letter from President Harleston to City College Colleagues, dated August 8, 1991.
In the letter, President Harleston hinted at the possibility of action being taken against Professor Jeffries in response to the speech:
Certainly, we must insure the right of our faculty and students to express their ideas, both in and outside the classroom, without fear of institutional censorship. However, the right to free expression and, indeed, to academic freedom is not and cannot be absolute. With freedom must come accountability.
I therefore, would like to reassure you that at the beginning of the Fall semester, I will initiate a thorough review of this situation. This review will be conducted in consultation with faculty and staff, and will follow a procedure that respects the principles of academic freedom and assures due process.
A memorandum from Vice Chancellor Ira Bloom to Chancellor W. Ann Reynolds, on the same day as the Harleston letter, suggested possible actions that might be taken against Professor Jeffries, including the removal of the plaintiff from his position as Chairman of the Black Studies Department. See Plaintiff's Exhibit 6, Memorandum from Vice Chancellor Ira Bloom to Chancellor W. Ann Reynolds, dated August 8, 1991, at 1 ("The following procedures would be applicable if consideration were to be given to removal as department chair or to disciplinary action . . . ."). The possible actions were further discussed in a letter from Provost Robert Pfeffer to President Harleston on August 14, 1991, which also refers to the possibility of removing the plaintiff from his position as Chairman of the Black Studies Department. See Plaintiff's Exhibit 7, Letter from Provost Pfeffer to President Harleston, dated August 14, 1991 ("Professor de Jongh has already viewed the video-tape and does not think Jeffries' remarks were so outrageous as to be sufficient cause for his removal as department chair. It is agreed [by and among whom is not clear] that the most severe censure of Professor Jeffries should be limited to removing him as the Chair of the Black Studies Department.").
On September 12, 1991, President Harleston wrote to Provost Pfeffer requesting that Pfeffer "undertake a review of Dr. Leonard Jeffries' leadership of the Black Studies Department to determine whether Dr. Jeffries can continue to act effectively as departmental administrator and as a participant in the formation, development, and interpretation of college-wide interests and policy." Plaintiff's Exhibit 9, Letter from President Harleston to Provost Pfeffer, dated September 12, 1991.
On September 17, 1991, President Harleston wrote to "Alumni and Friends of City College" to explain the actions he had taken since the July 20th speech, specifically with respect to the review being conducted by Provost Pfeffer. See Plaintiff's Exhibit 11, Letter from President Harleston to "Alumni and Friends of City College," dated September 17, 1991.
In response to an unwritten request from Provost Pfeffer and President Harleston, Jeffrey Rosen, Dean of the Division of Social Sciences, wrote a memorandum on September 19, 1991, only one week after President Harleston's directive to Provost Pfeffer, which preliminarily evaluated the "recent performance" of Professor Jeffries as Chairman of the Black Studies Department. See Plaintiff's Exhibit 12, Memorandum from Dean Rosen to Provost Pfeffer, dated September 19, 1991; Trial Tr. 193. Dean Rosen's report, described as an "initial assessment," found that Professor Jeffries was fulfilling his duties adequately as Chairman of the Black Studies Department.
This document of two pages makes it clear that the Dean's investigation consisted solely of his personal "observations" of Professor Jeffries' "discharge of ordinary administrative responsibilities" as Chair of the Black Studies Department. In a follow-up report of only three paragraphs, two weeks later, Dean Rosen again failed to find fault with Professor Jeffries' performance as Chair. Indeed, he described his interactions with Professor Jeffries as "productive" and "collegial." See Plaintiff's Exhibit 15, Memorandum from Dean Rosen to Provost Pfeffer, dated October 2, 1991.
On October 4, 1991, Provost Pfeffer came out with his review of Professor Jeffries' performance. See Plaintiff's Exhibit 16, Pfeffer "Administrative Review of Leonard Jeffries Jr.", dated Oct. 4, 1991. The review covered "Professor Jeffries' performance as Chairperson from July 1, 1991 (the commencement of his newly elected term as chair) through the present." Id. at 3. In the review, Provost Pfeffer found that Professor Jeffries' performance had not suffered as a result of the speech or the publicity surrounding it: ". . . Professor Jeffries appears to be functioning this semester as least as efficiently as over the last 10 years, and probably more so." Id. Pfeffer concluded his review:
. . . my review of Professor Jeffries' leadership of the Black Studies Department since July 1, 1991, indicates that he is fulfilling the duties of a chair as written in Article 9.3 of the CUNY Bylaws. Evidence gathered from the Dean, the Social Science P&B, and the Black Studies Department indicates that Professor Jeffries has been responsibly performing those duties delineated, including scheduling courses, presiding over departmental meetings, recruiting faculty, keeping departmental records, representing the department at the P&B, and Faculty Council, etc."
The incomplete nature of Provost Pfeffer's "review" and Dean Rosen's "investigation" is plainly apparent in the Provost's reference in his report to conversations with Professor Morris Silver and other faculty members regarding Professor Jeffries' speech, and the consequences following upon the speech. Bearing in mind that President Harleston's charge had imprecisely attempted to define his task as determining whether Professor Jeffries' leadership as a college chairman had been compromised as a result of his speech, and whether the College had been injured by the impact of the speech, the Provost should have broadened his focus and done a more systematic analysis of Professor Jeffries' performance. For example, Provost Pfeffer could have addressed three critical areas that he instead chose to ignore in his review: whether Professor Jeffries could effectively interact as Chairman with faculty members, and specifically, Jewish faculty members, whether the racist and bigoted nature of Professor Jeffries' remarks would stigmatise and isolate the Black Studies Department, and make it a parochial backwater of the College, and whether the College's alumni would withdraw their financial support in light of the professional embarrassment Professor Jeffries represented as a formal leader of the College administration.
Such a vital inquiry was never made, either through ignorance or cowardice. This fundamental flaw in the University's response to the Jeffries' controversy doomed its position in federal court, when the inevitable lawsuit was filed.
It is apparent that the Provost's report is predicated on nothing more than the aforementioned two communications he had from Dean Rosen and single meetings with the faculty of the Black Studies Department, which broadly supported Professor Jeffries, and the Social Sciences Department P&B Committee, whose members said that Professor Jeffries continued to carry out his duties as before.
Despite the positive review by the Provost, the Board of Trustees, upon the recommendation of President Harleston, voted on October 28, 1991, to limit Professor Jeffries' appointment as Chair to one year rather than the customary three-year term. See Plaintiff's Exhibit 18, Minutes of the Meeting of the Board of Trustees of the City University of New York, October 28, 1991.
There is no documentary evidence as to what motivated this decision of the Board. The next day, President Harleston wrote to Professor Jeffries informing him that Harleston had recommended to the Chancellor and the Board of Trustees that Professor Jeffries be given only a one-year term. See Plaintiff's Exhibit 19, Letter from President Harleston to Professor Jeffries, dated October 29, 1991. Amazingly, President Harleston expressed concerns in this letter about the impact of Professor Jeffries' conduct upon "faculty and staff recruitment, alumni fund-raising and [the College's] relationship with the business, Government and academic communities," without having required any formal investigation into such matters.
During this period, the months of October and November, Professor Jeffries was involved in four incidents that raised concern within the administration of the University.
The first incident occurred on October 18, 1991, when Elliot Morgan, a student reporter from the Harvard Crimson, visited the plaintiff on the City College campus to conduct an interview. See Trial Tr. 1308-34; Defendants' Exhibit R, Memorandum from Robert E. Diaz to Chancellor Reynolds, dated November 6, 1991. During the course of the interview, which was conducted with a tape recorder in plain view, plaintiff made disparaging remarks about other scholars in the field of African-American Studies as well as homosexuals.
See Trial Tr. 1318-21. During the course of the interview, Professor Jeffries threatened to "kill" Morgan if the content of the interview ever became public. See Trial Tr. 1321. At the end of the interview, plaintiff had Mr. Morgan's tapes of the interview confiscated. The tapes were never returned. See Trial Tr. 1322-26.
The second incident occurred at the end of October, when Professor Jeffries learned from a student that "Professor Silver said that they were going to start an investigation of the Black Studies Department. . . ." Trial Tr. 388. See Defendants' Exhibit C. In response, Professor Jeffries wrote to Dean Rosen, declaring "war" on the faculty. See Defendants' Exhibit C, Memorandum from Professor Jeffries to Dean Rosen ("I am sending a notice officially to him, you, the Provost and the President that if this faculty wants war it will get it -- enough is enough. We will fight fire with fire."). In addition, on October 31, 1991, Professor Jeffries went to an Economics student-faculty luncheon and exchanged "intense words" with Professor Morris Silver. See Trial Tr. 388.
We note, however, that Professor Silver did not file a formal complaint, that there was no formal proceeding initiated against Professor Jeffries as a result of the incident, (See Trial Tr. 389), and that Professor Silver was not called as a witness for the University at the trial.
The third incident occurred on November 12, 1991, during a meeting with Professor Jeffries, Provost Pfeffer and Dean Rosen. At the meeting, Provost Pfeffer and Dean Rosen urged plaintiff to voluntarily step down as Chairman of the Black Studies Department. See Trial Tr. 218-19. In response, Professor Jeffries became angry and threatened to turn City College into "Crown Heights." See Trial Tr. 223 (Rosen's version), 315 (Jeffries' version), 812 (Pfeffer's version); Plaintiff's Exhibit 22, Memorandum from Provost Pfeffer and Dean Rosen to President Harleston, dated November 18, 1991.
The final incident occurred on November 15, 1991, when Professor Jeffries confronted President Harleston in the lobby of the administration building, as Harleston was trying to leave for an appointment. See Trial Tr. 474-79 (Jeffries version), 989-91 (Harleston version). Angry over negative comments President Harleston had made on television the previous day about Professor Jeffries, the plaintiff confronted President Harleston and upbraided him in an angry and hostile manner.
During the period of these incidents, the CUNY administration was continuing to review the performance of Professor Jeffries as Chair of the Black Studies Department. From the time of the Pfeffer report, on October 4, 1991 until the Spring of 1992, Provost Pfeffer and Dean Rosen, at the direction of President Harleston, periodically reviewed the performance of Professor Jeffries as Chair. See Trial Tr. 771, 846, 983-85. These reviews were not written down, but were passed on orally to President Harleston during meetings. See Trial Tr. 845.
The reviews apparently became increasingly negative (See Trial Tr. 985), and in December of 1991, President Harleston, Provost Pfeffer, and Dean Rosen came to an agreement that Professor Jeffries should be replaced as Chairman. See Trial Tr. 541, 898, 991. Astonishingly, there is no written record or document of any kind that memorializes this important decision on the part of the CUNY administration, or the reasons for it.
On March 20, 1992, President Harleston and Provost Pfeffer met with the faculty of the Black Studies Department to "advise" them of President Harleston's decision to recommend to the Board of Trustees that Professor Edmund Gordon be named as the new Chairperson of the Department. See Trial Tr. 1002-03. In this meeting, President Harleston also sought to get "input" from the Black Studies faculty with respect to his recommendation to appoint Professor Gordon. See id.
The reaction of the Department to President Harleston's recommendation was extremely negative. See Trial Tr. 322-23, 1003. The same day as the meeting, the Black Studies Department Executive Committee and full-time faculty sent a memorandum to President Harleston protesting the actions of the Board of Trustees to limit Professor Jeffries' term as Chairman of the Black Studies Department without consulting the Department. See Plaintiff's Exhibit 24, Memorandum from the Black Studies Department Executive Committee and full-time faculty to President Harleston, dated March 20, 1992.
On March 23, 1992, the Board of Trustees voted to appoint Professor Gordon as the new Chair upon the expiration of plaintiff's one-year term, effective July 1, 1992. See Plaintiff's Exhibit 25, Minutes of the Board of Trustees meeting, March 23, 1992. As with its October vote, there is no formal record or document of any kind that explains the reasons for the Board's actions. At the meeting, there was virtually no discussion of Professor Jeffries or of his performance as Chairman of the Black Studies Department. See Trial Tr. 1007, 1159, 1196, 1306-07, 1690, 1708. Professor Gordon became the new Chairman of the Department as planned on July 1, 1992.
On June 5, 1992, roughly one month before Professor Gordon took over, Professor Jeffries commenced this action, alleging that defendants' denial of his full three-year term as Chairman of the Black Studies Department had violated his rights under the First and Fourteenth Amendments to the United States Constitution. The trial was conducted from April 22, 1993, to May 18, 1993.
After the closings, the Court submitted three separate verdict sheets to the jury. The first verdict sheet contained five questions, which the jury answered in the following manner:
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."
5. Has the plaintiff proven by a preponderance of the evidence that the defendants deprived him of property ...