excluded Dr. Piesco "from two meetings with Commissioners from other agencies." Id. at 1153. Moreover, eight days after Dr. Piesco commenced a section 1983 action against the Piesco defendants, the Piesco defendants fired her. The Piesco defendants presented no evidence to the Court that Dr. Piesco's testimony to the Senate Committee "either interfered with DOP's efficient functioning or impeded the proper performance of [Dr. Piesco's] daily duties." Id. at 1159.
In balancing the interests of DOP and Piesco, as is required by Pickering v. Board of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the Second Circuit emphasized that Dr. Piesco's testimony had to be accorded significant weight in the Pickering balance because "speech critical of the government is precisely the kind of speech that the first amendment was designed to protect." Piesco 933 F.2d at 1157. Citing Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), and Connick's progeny, the Second Circuit held that "where the statements involved so clearly touch on matters of public concern, the government is required to demonstrate interference with the efficient functioning of the workplace." Piesco, 933 F.2d at 1160. Because the Piesco defendants, as noted above, had not demonstrated such interference, the Court held that Dr. Piesco's interest in her testimony "[took] precedence over the City's interest in efficiently performing government services." Id. at 1158.
The Court also denied the Piesco defendants qualified immunity. See id. at 1160-61. The Court emphasized that it was clearly established at the time the Piesco defendants retaliated against Dr. Piesco, that retaliation against a public employee because of the employee's criticism of the government was unlawful.
See Id. at 1161. Moreover, the Court stated that in light of a Department of Investigation Report, that had been released three weeks prior to Dr. Piesco's dismissal and which found that some of the Piesco defendants' actions were retaliatory and thus improper, "it [was] incomprehensible how [the Piesco defendants] reasonably could have considered their subsequent discharge of Dr. Piesco to be lawful." Id. Thus, Piesco clearly held that public employees may not be fired from their jobs in retaliation for speech that substantially involves matters of public concern and which does not interfere with the efficient functioning of their employers' office.
In the instant case, we have already found that Professor Jeffries' July 20, 1991 speech, which criticized the current educational curricula in this nation's public schools, "substantially involved matters of public concern and 'should be accorded significant weight in the Pickering balance.'" Jeffries v. Harleston, 820 F. Supp. 741, 743 (S.D.N.Y. 1993) (quoting Piesco, 933 F.2d at 1157). Moreover, the jury determined that Professor Jeffries' July 20, 1991 speech was a substantial or motivating factor in the defendants' denial to Professor Jeffries of a full three-year term as Chairman of the Black Studies Department, and 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. 820 F. Supp. at 742. After Piesco, it should have been apparent to defendants that their actions were unconstitutional. Moreover, we believe that defendants' claims of qualified immunity are especially specious in light of this Court's September 4, 1991 decision in Levin v. Harleston, 770 F. Supp. 895 (S.D.N.Y. 1991), aff'd in part, vacated in part, 966 F.2d 85 (2d Cir. 1992), which put defendants on notice that retaliation against a faculty member for out-of-class speech that does not interfere with the functioning of the University is unconstitutional. Thus, we believe that defendants are not entitled to qualified immunity with respect to Professor Jeffries' First Amendment claim.
Defendants contend that they are entitled to qualified immunity with respect to Professor Jeffries' First Amendment claim because it was not clearly established at the time that they denied Professor Jeffries a full three year-term that it is unconstitutional to deny a person a chairmanship, as opposed to a professorship, because of the person's speech. Defendants apparently assert that because a department chairman has greater responsibility than does a professor and because a department chairman is higher up in the academic hierarchy than is a professor, reasonable officials in defendants' positions would not have known that denying Professor Jeffries his Chairmanship would violate his First Amendment rights. We disagree. As noted above, the plaintiff in Piesco was head of the Bureau of Examinations, the largest Bureau in DOP, and had a staff that fluctuated between 175 and 200 persons. Dr. Piesco's department was responsible for "the preparation, evaluation, and administration of all civil service tests for the City of New York." Piesco, 933 F.2d at 1151 (emphasis added); see also id. at 1157 (recognizing Dr. Piesco's senior position at DOP). Nevertheless, the Second Circuit held that the Piesco defendants violated Dr. Piesco's First Amendment rights.
In the instant case, we believe that while important, the responsibilities of a Department Chairperson at City College
are not as significant as those of the plaintiff in the Piesco case.
Moreover, even if the responsibilities of Dr. Piesco and Professor Jeffries could be considered equivalent, the Piesco case clearly established that a person's high government position does not give the government license to retaliate against that person for the person's speech.
Finally, the fact that Professor Jeffries may have been a spokesperson for his department does not change this analysis since Dr. Piesco, as evidenced by her testimony before the New York State Senate, was a spokesperson for DOP.
Defendants maintain that at the time that defendants denied Professor Jeffries a full three-year term as Chairman, Supreme Court authority, the Piesco decision, and other Second Circuit cases established only that a public employee may not be retaliated against for whistleblowing or for testimony that that employee provides to a branch of government. Defendants also contend that Supreme Court authority, the Piesco decision, and other Second Circuit cases did not clearly establish at that time that before firing an employee for speech that substantially involves matters of public concern, the government must show that the speech caused actual interference to the efficient functioning of the government office. We believe that defendants read Piesco, the Supreme Court authority, and other Second Circuit cases too narrowly.
In Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987), Rankin, a government employee of a law enforcement agency, was discussing with a colleague the President's policies and said that she hoped that if another assassination attempt were made on the President, the attempt would be successful. See id. at 381. As a result of Rankin's statement about her hopes regarding a future assassination attempt on the President, McPherson, Rankin's superior, fired Rankin. See id. at 382. The Supreme Court held that because McPherson had failed to show any concrete negative effects of Rankin's statement on the functioning of McPherson's office, McPherson had violated Rankin's First Amendment rights when he fired her because of her statement. See id. at 388-89, 392; Id. at 393 n.* ("in this case, however, there is no objective evidence that [plaintiff's] lone comment had any negative effect on the moral or efficiency of the Constable's office) (Powell, J., concurring).
Thus, it is apparent from Rankin that in cases where a public employee's speech involves matters of substantial public concern and is not whistleblowing or giving testimony to a branch of government, the government may not fire the employee for the speech unless the government can show that the employee's speech actually interfered with the functioning of the government office. See Piesco, 933 F.2d at 1159 (interpreting Rankin in the way that we propose).
Moreover, the Piesco Court made clear that the First Amendment principles it discussed were not applicable only to whistleblowers or to persons who testify before branches of government. The Piesco Court cited the employees' speech in Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987), and American Postal Workers Union v. United States Postal Serv., 265 U.S. App. D.C. 146, 830 F.2d 294 (D.C. Cir. 1987), as examples of the types of speech for which a public employee may not be fired without a showing by the employer that the speech actually interfered with the functioning of the government office. See Piesco, 933 F.2d at 1159. As noted above, the Rankin case involved a discussion about the President and his policies. Moreover, the employee's speech in American Postal Workers was a letter about the importance of encouraging fellow workers to join a union. Thus, it is clear that the defendant's characterization of Piesco as only establishing that a public employee may not be retaliated against for testimony that the employee provides to a branch of government, is incorrect.
Defendants contend that Professor Jeffries' comments on who he believed financed the slave trade and built the pyramids, and Professor Jeffries' remarks on how to express the notions of "duality" and "polarity" through a "pyramid analysis" do not deal with matters of substantial public concern. We disagree. Though historically and analytically suspect, these comments revealed what information Professor Jeffries believed should be included in a multicultural curriculum and what mode of analysis he thought should be used in analyzing that information.
In their briefs, defendants point out that Professor Jeffries made various remarks in his July 20, 1991 speech that were perceived as anti-semitic and consisted of attacks against a number of individuals. Defendants maintain that because of these remarks, reasonable officials in the defendants' positions would not have known that their belief that Professor Jeffries' speech would cause interference with the functioning of the University was not a sufficient basis under the Constitution to deny Professor Jeffries a full three-year term as Chairman of the Black Studies Department. While we recognize that a number of Dr. Jeffries remarks in his July 20, 1991 speech were vulgar, repugnant, and reprehensible, we disagree with defendants' argument.
In Rankin, the Supreme Court analyzed the employee's controversial statement in the context of the employee's entire conversation with her colleague. See Rankin, 483 U.S. at 386-87 & n.10. The Court held that because the employee's statement was part of a conversation about the President and his policies, the statement plainly dealt with a matter of public concern. See Id. The Court stated that
the inappropriate or controversial character of a statement is irrelevant to the question of whether it deals with a matter of public concern. Debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.
Id. at 387 (quotation marks and internal citations omitted). We believe that Rankin clearly established that caustic statements that are related to and are made in the context of a speech which discusses an issue of substantial public concern, must also be considered statements about an issue of substantial public concern.
In the instant case, Professor Jeffries made many of his personal attacks in the context of discussing those people who disagreed with his position on a multicultural curriculum in the New York State public schools.
Moreover, Professor Jeffries' description Of Dr. Bernard Sohmer as the "head Jew at City College" and Professor Jeffries' reference to discussions he had with "[his] Jews at city college" came in the context of Dr. Jeffries' description of his conversations with Jewish members of the City College faculty about the alleged role of Jews in the slave trade. Because Professor Jeffries' caustic remarks are clearly related to his speech as a whole, we believe that reasonable officials in defendants' positions should have known that Dr. Jeffries' entire speech was protected.
In sum, we believe that defendants are not entitled to qualified immunity on Professor Jeffries' First Amendment claim.
D. Punitive Damages:
Defendants maintain that the punitive damage awards ($ 30,000 against President Harleston, $ 50,000 against Chancellor Reynolds, and $ 80,000 against each of the four Trustees) are excessive. We observe that the Court has already set aside the plaintiff's Fourteenth Amendment claim. As one out of two of the claims against President Harleston and Chancellor Reynolds has been dismissed, the Court believes that a fifty percent reduction in the punitive damage awards against these two defendants is appropriate. Accordingly, we reduce the punitive damage award against President Harleston from $ 30,000 to $ 15,000 and the award against Chancellor Reynolds from $ 50,000 to $ 25,000.
An award of punitive damages should be set aside when it shocks the judicial conscience (see Hughes v. Patrolmen's Benevolent Ass'n of New York, Inc., 850 F.2d 876, 883 (2d Cir.), cert. denied, 488 U.S. 967, 102 L. Ed. 2d 532, 109 S. Ct. 495 (1988), citing Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978)), or when it is not reasonably calibrated to a defendant's financial circumstances. See Smith v. Lightning Bolt Prods, Inc., 861 F.2d 363, 373 (2d Cir. 1988).
We observe that the defendants were put on notice by the Levin v. Harleston decision that retaliation against a faculty member for exercise of his or her free speech rights, in the absence of any actual interference in the functioning of the University, is prohibited by law. See Levin v. Harleston, 770 F. Supp. 895, 921-22 (S.D.N.Y. 1991), aff'd in part, vacated in part, 966 F.2d 85 (2d Cir. 1992). Despite this notice, the defendants proceeded to retaliate against Professor Jeffries for his speech outside the University. Under these circumstances, we do not find that the punitive damage awards against the defendants shock the judicial conscience.
Defendants cite Piesco v. City of New York, 1993 U.S. Dist. LEXIS 1349, 1993 W.L. 37100 (S.D.N.Y. 1993), in which a jury awarded punitive damages of $ 50,000 against each of two defendants, to a city employee who had been fired for giving sworn testimony about examination standards in the Police Department to a legislative committee. The Court believes that the gravity of the defendants' actions in this case is at least as serious as the gravity of the defendants' actions in Piesco, especially in light of the fact that in this case, the Levin v. Harleston decision put defendants on notice. We believe that the difference between the $ 50,000 awarded against each of the Piesco defendants and the $ 80,000 awarded against each of the four Trustees is reasonable under the circumstances. Accordingly, the Court declines to reduce the awards. We also find that in view of the $ 50,000 award against each of the Piesco defendants, the $ 15,000 award against President Harleston and the $ 25,000 award against Chancellor Reynolds do not shock the judicial conscience.
In addition, in view of the fact that the defendants presented no evidence as to their financial circumstances, we will not overturn the award on the grounds of financial hardship to the defendants. See Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992). See also Zarcone v. Perry, 572 F.2d at 56 ". . . the decided cases and sound principle require that a defendant carry the burden of showing his modest means -- facts peculiarly within his power -- if he wants this considered in mitigation of damages." 572 F.2d at 56); Smith v. Lightning Bolt Prods, Inc. (". . . it is the defendant's burden to show that his financial circumstances warrant a limitation of the award." 861 F.2d at 373, citing Zarcone v. Perry).
Accordingly, the Court cuts in half the punitive damage awards against President Harleston and Chancellor Reynolds, but finds that the punitive damage awards against each of the four Trustees is not excessive.
E. Permanent Injunction -- Reinstatement:
We now address the most troubling and nettlesome aspect of this case, the return of Professor Jeffries to the Chairmanship. To justify permanent injunctive relief from a constitutional violation, a plaintiff must establish three elements: the fact of the constitutional violation, the presence of continuing irreparable injury if the relief is not granted, and the lack of an adequate remedy at law. See Levin v. Harleston, 770 F. Supp. 895, 918 (S.D.N.Y. 1991), aff'd in part, vacated in part, 966 F.2d 85 (2d Cir. 1992). See also New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989), cert. denied, 495 U.S. 947, 109 L. Ed. 2d 532, 110 S. Ct. 2206 (1990); Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57, 45 L. Ed. 2d 12, 95 S. Ct. 2069 (1975); Farmland Dairies v. McGuire, 789 F. Supp. 1243, 1250 (S.D.N.Y. 1992); Rosenberg v. Meese, 622 F. Supp. 1451, 1476 (S.D.N.Y. 1985). The jury and the Court have already determined the fact of the constitutional violation.
The plaintiff maintains that the denial of his full three-year term as Chairman of the Black Studies Department constitutes irreparable injury. The Chairmanship of the Black Studies Department at City University carries with it a prestige both within and outside the University. In addition, the Chairmanship gives its holder a significant degree of power and influence over the policies and direction of the Black Studies Department. The denial of Professor Jeffries' full three-year term as Chairman of the Black Studies Department constitutes a loss to the plaintiff of this prestige and power associated with the office. We believe this loss constitutes irreparable harm to the plaintiff.
Furthermore, plaintiff appears to have no adequate remedy at law.
The future prospect of one day being reelected to the Chair is no adequate remedy to Professor Jeffries,
and does not eliminate the irreparable harm to plaintiff.
We now turn to the matter of balancing the equities. Defendants correctly point out that courts in this Circuit have considered "the balance of equities" in determining whether to award a permanent injunction. See Automotive Elec. Serv. Corp. v. Association of Automotive Aftermarket Distrib., 747 F. Supp. 1483, 1513 (E.D.N.Y. 1990) ("the balance of equities must tip decidedly in favor of the plaintiff [seeking permanent injunctive relief]. . . ."). See also Town of Huntington v. Marsh, 884 F.2d 648, 654 (2d Cir. 1989), cert. denied, 494 U.S. 1004, 108 L. Ed. 2d 473, 110 S. Ct. 1296 (1990); Travellers Intern. AG v. Trans World Airlines, Inc., 722 F. Supp. 1087, 1096 (S.D.N.Y. 1989). Defendants maintain that the equities tip in their favor, because plaintiff's reinstatement would "jeopardize the needs of the Department and its students . . ." Defendants' Memorandum, at 52. Moreover, defendants allege, "plaintiff does not grasp the sensitivities and sensibilities essential for working in an ethnically diverse environment which has established policies intended to bridge, rather than exacerbate, relations between different ethnic and religious groups." Id. at 57.
Defendants again cite to the aforementioned four incidents that are said to demonstrate plaintiff's "disruptive and damaging" behavior. Id. at 58.
The Court views the incident with Elliot Morgan, a student reporter from the Harvard Crimson, as the most substantial and disturbing of these incidents, particularly in light of the fact that plaintiff did not seek to challenge in Court the veracity of Mr. Morgan's testimony. The professor's behavior can fairly be described as thuggish, and incompatible with the civilized discourse and conduct expected of tenured professors. However, we do not find that this incident, and the three others, taken, as a whole, rise to a level that would justify denying plaintiff injunctive relief. Furthermore, even though the jury's verdict does not bind the Court on the equities question, we note that the jury gave little if any weight to these incidents, including the Morgan affair. In considering the record in this case, we find that the equities tip in favor of the plaintiff, whose first amendment rights were unconstitutionally violated by defendants, and whose injury will continue until he is restored as Chairman of the Department.
The Court declines to enter a debate on the relative qualifications of Professor Gordon versus Professor Jeffries or between the merits of their different approaches to Black Studies. The defendants seem to request that this Court use its broad equitable powers to decide the question of who would make a better Chairman. See Defendants' Memorandum, at 51-52; Defendants' Reply Memorandum, at 24-25. Such a decision is not the province of the federal court. Nor was it the subject of the trial.
Defendants and City University bear the responsibility for and the freedom of making employment decisions with respect to Department Chairpersons. However, they may not base their decisions on unconstitutional grounds, as they have in the case of Professor Jeffries. Nor may they evade their responsibilities by seeking arbitration in federal court between competing candidates.
Defendants maintain that "the harm that would be done to Professor Gordon should also be weighed against any benefit accruing to the plaintiff." Defendants' Memorandum, at 58. We observe that the reinstatement of Professor Jeffries in no way reflects upon the significant and substantial accomplishments of Professor Gordon in his field, but only reflects upon the irresponsibility of the defendants who made the decision to deny plaintiff his full three-year term on unconstitutional grounds. The Court regrets any inconvenience or hardship to Professor Gordon who apparently had planned on remaining Chairman for one more year.
Plaintiff has requested injunctive relief sufficiently broad to prevent defendants from creating "shadow sections" (a reference to this Court's decision in the Levin case) or their equivalent, including an Institute of Black Studies. See Plaintiff's Reply Memorandum, at 9-10. There is, however, insufficient evidence with respect to the defendants' threatened actions and their motives and intentions.
Accordingly, the Court declines to award such relief.
Plaintiff also requests that this Court "spell out in full detail the injunctive relief provided to the Plaintiff." Plaintiff's Reply Memorandum, at 9-10. According to plaintiff,
the requested language is intended to prevent Defendants from employing any ruse to undermine Plaintiff's position and authority as Chair and is intended to secure for the Plaintiff the same protection this Court provided Professor Levin when it recognized and prohibited the effects of the shadow classes established by Defendants in response to Levin's protected speech.
Id. at 9. The Court declines to grant the requested relief. In contrast to the Levin case, plaintiff here has presented insufficient evidence upon which to grant broad equitable relief, in effect enjoining the defendants from committing acts which are wholly speculative and upon which no adequate record was made.
Defendants argue that this Court should deny plaintiff equitable relief because plaintiff "has unreasonably delayed in asserting its rights." Defendants' Memorandum, at 60. Defendants maintain that this delay evinces a lack of interest on the part of plaintiff in regaining his position as Chairman of the Black Studies Department. Id. The Court observes that the delay in question, between March 20, 1992 (when plaintiff learned that he would not be able to serve out his full three-year term), and June 5, 1992 (when plaintiff commenced this lawsuit), is only two-and-a-half months. We do not believe that this time period represents in any way an unreasonable delay on the part of plaintiff. Nor does the Court believe that plaintiff's conduct has in any way unreasonably delayed a trial on the merits.
In addition, defendants maintain that plaintiff is not entitled to equitable relief because he comes to the Court with "unclean hands." Id. at 61. In support of this argument, the defendants cite to the four incidents mentioned above, in which plaintiff allegedly displayed "grossly inappropriate and irresponsible behavior." Id. at 56. The defendants also point out that plaintiff has yet to apologize to the alleged victims of the incidents. The Court does not believe that the four incidents or the lack of apologies rise to a level implicating the doctrine of "unclean hands." See Playboy Enter., Inc. v. Chuckleberry Publishing, Inc., 486 F. Supp. 414, 435 (S.D.N.Y. 1980) (". . . the 'unclean hands' doctrine is . . . . a limited device, invoked by a court only when a plaintiff otherwise entitled to relief has acted so improperly with respect to the controversy at bar that the public interest in punishing the plaintiff outweighs the need to prevent defendant's tortious conduct."); Markel v. Scovill Mfg. Co., 471 F. Supp. 1244 (W.D.N.Y.) (". . . the courts are reluctant to apply the unclean hands doctrine in all but the most egregious situations. It will be applied only where some unconscionable act of one coming for relief has immediate and necessary relation to the equity that he seeks in respect of the matter in litigation." Id. at 1255), aff'd, 610 F.2d 807 (2d Cir. 1979) (quotes and citations omitted).
The Court is not unmindful of the egregiously offensive and destructive nature of Professor Jeffries' statements, and the widespread dismay and alarm that they have evoked. But we as a society cannot enjoy the freedoms of the First Amendment without paying the costs and enduring the burdens of such liberty. Chief among these costs is the fact that a category of viewpoints that a large majority in this nation consider morally reprehensible and racist are also protected by the First Amendment. In this case, the derogatory comments of Professor Jeffries with respect to specific ethnic groups would seem to come within the compass of that category. See Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 58 L. Ed. 2d 264, 99 S. Ct. 291 (1978) (First Amendment protects right of Nazi party to march through predominantly Jewish town containing many Holocaust survivors); Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969) (First Amendment protects right of Ku Klux Klan leader to make derogatory remarks against Jews and blacks); Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (First Amendment protects right of person to burn U.S. flag during protest rally). We are therefore constrained to rule that Professor Jeffries' statements, when spoken outside the classroom, remain under the umbrella of constitutional protection, as long as those statements do not impede the efficient and effective operation of the College or University.
Accordingly, the defendants are required to reinstate the plaintiff as Chairman of the Black Studies Department, for a period of two years effective immediately.
We now turn to the limitations of the injunction with respect to the rights of the University in dealing with any future misconduct by Professor Jeffries. In awarding plaintiff permanent injunctive relief, the Court does not constrain the defendants from removing Professor Jeffries for good cause.
The Black Studies Department is not, after all, the personal property or the political fiefdom of plaintiff, and plaintiff's reinstatement is not a permanent license for the plaintiff to hold the position of Chairman of the Black Studies Department or, indeed, it must be emphasized, to hold the position of a tenured professor at CUNY. The defendants retain the full and unqualified right and the responsibility to discipline the plaintiff in response to improprieties or behavior deemed unworthy of a Department Chair or a tenured professor, as long as in so doing the defendants do not violate the United States Constitution. Indeed, there appears to have been some indication, regrettably not developed at the trial, of rather serious improprieties on the part of Professor Jeffries upon which the CUNY administrators could have constitutionally acted.
For the most part, however, the University inexplicably and perhaps cowardly, chose to ignore these improprieties, and only acted against the plaintiff when the public outrage over the July 20, 1991 speech in effect forced its hand. We observe, regrettably but necessarily, that the students of CUNY and the people of New York State are entitled to a higher standard of decision-making on the part of its public officials.
We again emphasize that this Order does not preclude the defendants from disciplining Professor Jeffries in response to behavior in class that is deemed incompatible with his duties and with the mission and values of the University. Of course, the United States Constitution broadly protects academic freedom. As Justice Brennan wrote in' Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967):
. . . the First Amendment . . . does not tolerate laws that cast a pall of orthodoxy over the classroom. . . . The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.
Id. at 603 (quotation marks and citations omitted). The protection of academic diversity with respect to ideas, perspectives, and their messengers is a vital concern of the Constitution. See Dube v. State Univ., 900 F.2d at 597-98.
However, the Constitution does not prevent a University from taking disciplinary action against a professor who engages in a systematic pattern of racist, anti-semitic, sexist, and homophobic remarks during class.
See Bishop v. Aronov, 926 F.2d 1066, 1071-72 (11th Cir. 1991); see also Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986) (professor's in class abusive behavior toward students, as well as "indecent language and profanity [in class] may be regulated in the schools . . ." Id. at 585).
Such a pattern tends to silence rather than promote the free exchange of ideas, and to destroy rather than enhance academic diversity. Nor does the Constitution protect the right of a professor to teach patently absurd and wholly fallacious theories in class.
There is some limited evidence in the record that Professor Jeffries has engaged in both of these activities. See Defendants' Exhibit F, Letter from Margaret Murphy to Dean Rosen, dated April 1, 1991 (student requests refund of tuition for dropped course; student dropped course in response to inadequate performance of professors, including Professor Jeffries, who among other things, "spouted the most racist line of nonsense," and "sprinkled his lectures with gratuitous sexual references."); Defendants' Exhibit H, Memorandum from Morris Silberberg to President Harleston, dated September, 15, 1988 (attached articles by a student describe theories espoused by Professor Jeffries in class, including theory that white people are genetically inferior "ice" people, and black people are "sun" people). This Order does not require City University to continue to disserve its own students by subjecting them in class to the bigoted statements and absurd theories of any of its professors.
Nevertheless, in his capacity as Chairman of the Department, Professor Jeffries is entitled to the constitutional protection that surrounds his speech and professional activities. While there may have been compelling and legitimate grounds upon which to discipline Professor Jeffries, the University chose to act upon illegitimate and unconstitutional grounds, specifically upon the plaintiff's off-campus July 20, 1991 speech and the publicity surrounding it. Accordingly, the Court found that the defendants violated the first amendment rights of the plaintiff.
The Court grants defendants' motion to set aside, vacate, and overturn the jury verdict on plaintiff's second claim based upon the Fourteenth Amendment, dismisses that claim as a matter of law, and directs the Clerk of the Court to enter judgment on that claim in favor of the defendants. The defendants' motions with respect to the jury's verdict on the First Amendment claim, the defense of qualified immunity, and the punitive damage award are denied, except that the award against defendant Harleston is reduced from $ 30,000 to $ 15,000, and the award against defendant Reynolds is reduced from $ 50,000 to $ 25,000. The defendants are hereby mandatorily enjoined to immediately reinstate the plaintiff to the Chairmanship of the Black Studies Department of City College of the City University of New York for a period of two years effective immediately. This injunction explicitly permits the defendants and appropriate officials of City University to initiate removal proceedings with respect to plaintiff's Chairmanship or tenured faculty position for any future conduct that is outside the ambit of constitutional protection as enunciated in this Opinion.
KENNETH CONBOY, U.S.D.J.
Dated: New York, New York
August 4, 1993