Piggee, Martha L. v. Carl Sandburg

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3228

MARTHA LOUISE PIGGEE,

Plaintiff-Appellant,

v.

CARL SANDBURG COLLEGE, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 03-1329—Joe Billy McDade, Judge.

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ARGUED FEBRUARY 9, 2006—DECIDED SEPTEMBER 19, 2006

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Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.

WOOD, Circuit Judge. In September 2002, Martha Louise

Piggee, who was then a part-time instructor of cosmetology

at Carl Sandburg College, gave a gay student two religious

pamphlets on the sinfulness of homosexuality. The student

was offended and complained to college officials. After the

college looked into the matter, it found that Piggee had

sexually harassed the student. It admonished her in a letter

to cease such behavior, and the following semester it chose

not to retain her. Piggee sued the college, the members of

its board of trustees, and various college administrators

(including one person who directed the mortuary science

program, whose offense was to clean out Piggee’s refrigera-

2 No. 05-3228

tor and throw away her noodles at some point during the

spring of 2003) under 42 U.S.C. § 1983. She asserted,

among other things, that the measures the college took

violated her due process rights, her rights under the Free

Exercise, Equal Protection, and Free Speech clauses of the

Constitution, and that the college’s sexual harassment

policy was constitutionally infirm. Noting that none of the

facts was seriously in dispute, the district court entered

summary judgment for the defendants. We affirm.

I

Carl Sandburg College (“the college”) is a public commu-

nity college located in downtown Galesburg, Illinois. Its

cosmetology department requires its students to under-

take a combination of classroom and clinical work in a

facility that operates as an ordinary beauty salon open

to the public. Jason Ruel was a student in the program. He

enrolled in June 2002, and Piggee was his instructor for

several classes. At some point, Ruel became aware that

Piggee was a Christian and she realized that he was gay.

On September 5, 2002, Piggee placed two pamphlets in

Ruel’s smock during clinical instruction time, as he was

preparing to leave for the day. She told him to read the

materials later and invited him to discuss them with her.

The next day, Ruel glanced at the pamphlets, both of

which used a comic-book format. The first was entitled “Sin

City.” It tells the story of a man who tries to persuade gay

pride advocates that homosexuality is an abomination. He

is beaten when he tries to stop a gay pride parade; he is

arrested by the police; a demon urges on a minister who

preaches that God loves even gay people; the man then asks

about Sodom and Gomorrah; and eventually the minister

repents his sin (which apparently is supporting gay pride).

The second pamphlet was entitled “Doom Town.” Its

message is similar. It begins by showing a group of homo-

No. 05-3228 3

sexuals headed by a speaker, who states that a certain

number of children will wind up homosexual. She threatens

that all gay males will pollute the blood supply with HIV-

positive blood unless people give more money for AIDS

research. A Christian observing this recounts the story of

Sodom and Gomorrah. One scene implies that an evil man

is about to assault a frightened boy sexually; another

indicates that some angels being sheltered by Lot are about

to be raped. God, however, intervenes, stops the mob, and

destroys the two sinful cities.

A short time later, on September 17, Ruel wrote to Barb

Kirchgessner, the director of the cosmetology program, Tim

Smith, chair of the college’s business division, and Larry

Benne, the vice president of instructional services, telling

them about Piggee’s pamphlets and stating that he “was

appalled at what [he] found inside [them].” As the district

court put it, “[h]e did not appreciate being called an abomi-

nation, a child molester, or a rapist and a deviant.” Ruel

urged the administrators to terminate Piggee’s employ-

ment.

In a follow-up letter written on September 19, Ruel

reported that Piggee had approached him and accused

him of trying to get her fired. Initially, he said that he did

not know what she was talking about, but after she de-

manded that he follow her into a back room (where she shut

the door), he conceded that he had complained, and told her

that the matter was being handled through the proper

channels. Uncomfortable with the whole conversation, Ruel

soon walked out.

Other college administrators, including Mike Walters, the

affirmative action officer, and Cheryl Cummings, the equal

employment opportunity officer, and Lori Sundberg, the

dean of human resources, promptly began investigating

Ruel’s complaint. They visited Piggee at home, where she

essentially confirmed the account Ruel had given of the

4 No. 05-3228

incident. On September 24, Benne wrote to Piggee

and another teacher, Linda Delawder, who had supported

Piggee, formally telling them that there had been a formal

complaint by a student claiming a hostile environment and

reminding them that students had a right to their beliefs.

The letter went on to say that “[t]he purpose of our program

is to provide instruction for Cosmetologist [sic] not religious,

social and sexual beliefs or provide written materials to

influence those beliefs.” It called on them to cease such

activities immediately, and warned them that further

actions “could lead to disciplinary measures up to and

including discharge.”

On October 7, Walters and Cummings wrote a memo to

Benne and Piggee, which read as follows:

It is the finding of the Affirmative Action Officer and

the Equal Employment Opportunity Officer that sexual

harassment has taken place in the case of Jason Ruel.

It has been found that because of Mr. Ruel’s sexual

orientation, Mrs. Louise Piggee has been proselytizing

in the hopes of changing Mr. Ruel’s sexual orientation

and religious beliefs.

Recommendation: The recommendation is that Mrs.

Piggee be given a warning to cease and desist all

proselytizing in the workplace to Mr. Ruel and/or to

other students. Failure to cease and desist will consti-

tute insubordination, which can result in disciplinary

action up to, and including, termination.

In a later letter to Piggee, Benne indicated that he agreed

with this recommendation.

When the time came for the college to decide whether to

offer Piggee a contract for the spring of 2003, Benne advised

Smith that this would be unwise. Smith passed this advice

along to Kirchgessner, who decided to accept it. On January

6, 2003, Piggee received a letter from Kirchgessner inform-

No. 05-3228 5

ing her that she was not needed for the spring 2003 semes-

ter. On October 9, 2003, Piggee filed this lawsuit; the

district court denied her motion for summary judgment and

granted the defendants’ motion for summary judgment on

June 27, 2005.

II

Although Piggee’s brief purports to raise 10 issues on

appeal, we see four broad arguments that we need to

address: (1) whether her speech was on a matter of public

concern; (2) whether the college’s interest in enforcing its

sexual harassment policy or controlling the cosmetology

program outweighed Piggee’s free speech interest; (3)

whether the college unlawfully imposed a prior restraint on

her speech; and (4) whether any such prior restraint was

overbroad or unconstitutionally vague. Piggee also raises

due process and equal protection claims, and the college

asserts that its administrators are entitled to qualified

immunity, should this court decide that Piggee has alleged

a constitutional violation.

Before turning to these specific arguments, we think

it important to set the stage. Apart from her due process

and equal protection arguments, Piggee’s real complaint

has to do with her ability to speak at the workplace, and in

particular her ability to discuss matters of religious concern

there. Since the oral argument in this case, the Supreme

Court has spoken to these issues, in Garcetti v. Ceballos,

126 S.Ct. 1951 (2006). We therefore begin with a look at

Ceballos, and then turn to Piggee’s arguments.

Ceballos involved a claim brought by a deputy district

attorney, Richard Ceballos, who worked for the Los Angeles

County District Attorney’s office. When a defense attorney

told Ceballos that he had found inaccuracies in an affidavit

supporting a search warrant, Ceballos looked into the

matter and concluded that defense counsel was right. He

6 No. 05-3228

communicated his concerns to his supervisors and wrote a

couple of memoranda about the problem. The supervisors

heard him out, but they decided in the end to continue with

the prosecution. As a result of this disagreement, Ceballos

claimed, he was subjected to a series of retaliatory actions,

including a reassignment, a transfer to another location,

and the denial of a promotion. He sued under 42 U.S.C.

§ 1983. The district court ruled for the county defendants,

but the Ninth Circuit reversed, holding that “Ceballos’s

allegations of wrongdoing in the memorandum constitute

protected speech under the First Amendment.” 126 S.Ct. at

1956, quoting from 361 F.3d 1168, 1173 (9th Cir. 2004). The

Supreme Court accepted the case and reversed.

The Court’s opinion reviews the line of cases dealing with

employee speech that began with Pickering v. Board of

Educ. of Township High School Dist. 205, 391 U.S. 563

(1968). It summarized those cases in the following way:

The Court’s decisions, then, have sought both to

promote the individual and societal interests that are

served when employees speak as citizens on matters

of public concern and to respect the needs of govern-

ment employers attempting to perform their important

public functions. . . . Underlying our cases has been the

premise that while the First Amendment invests public

employees with certain rights, it does not empower

them to “constitutionalize the employee grievance.”

Connick [v. Meyers], 461 U.S. [138,] at 154 [(1983)].

126 S.Ct. at 1959. Applying those principles to the facts

before it, the Court held that “when public employees make

statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes,

and the Constitution does not insulate their communica-

tions from employer discipline.” Id. at 1960.

Application of these principles to the educational setting

requires an appreciation of the way in which teachers,

No. 05-3228 7

professors, or instructors communicate with their students.

As we have recognized in the past, academic freedom has

two aspects. We wrote in Trejo v. Shoben, 319 F.3d 878 (7th

Cir. 2003) that “the First Amendment protects the right of

faculty members to engage in academic debates, pursuits,

and inquiries” and to discuss ideas. Id. at 884. The idea of

some kind of government-sponsored orthodoxy in the

classroom is repugnant to our values. On the other hand,

we have also recognized that a university’s “ability to set a

curriculum is as much an element of academic freedom as

any scholar’s right to express a point of view.” Webb v. Bd.

of Trustees of Ball State Univ., 167 F.3d 1146, 1149 (7th

Cir. 1999). We added, in Webb, that “[u]niversities are

entitled to insist that members of the faculty (and their

administrative aides) devote their energies to promoting

goals such as research and teaching.” Id. at 1150. No college

or university is required to allow a chemistry professor to

devote extensive classroom time to the teaching of James

Joyce’s demanding novel Ulysses, nor must it permit a

professor of mathematics to fill her class hours with

instruction on the law of torts. Classroom or instructional

speech, in short, is inevitably speech that is part of the

instructor’s official duties, even though at the same time

the instructor’s freedom to express her views on the as-

signed course is protected.

The examples we have just given illustrate why it is

not very useful to focus on the fact that speech about

religion, or speech about the pros and cons of homosexual

behavior, plainly deals with a topic that richly deserves full

public discussion. So, for that matter, does tort law, or

Ulysses (which, recall, was initially banned in this country

as obscene, see United States v. One Book Entitled Ulysses

by James Joyce, 72 F.2d 705 (2d Cir. 1934)). (The way to fit

this conclusion into traditional Pickering analysis is to

say that we assume, for purposes of this discussion,

that Piggee’s proselytizing is speech that qualifies as a

8 No. 05-3228

matter of public concern; it certainly had nothing to do with

how to style hair.) The real question, however, is whether

the college had the right to insist that Piggee refrain from

engaging in that particular speech while serving as an

instructor of cosmetology.

Piggee’s first effort to convince us that the college had

no such right is to argue that the clinical beauty salon

where she approached Ruel was just a store, like any other

store. Had she come up to Ruel in a local grocery store

and slipped the pamphlets into his pocket, we would have a

different case. It is still possible that this might have raised

concerns, because the instructor/student relationship does

not end the moment the instructional period is over.

Compare Doe v. Oberweis Dairy, 456 F.3d 704, 715-16 (7th

Cir. 2006) (for purposes of Title VII sexual harassment

claim, sex act with supervisor need not have been commit-

ted in the workplace in order to have consequences there).

If we conclude that the beauty salon where Ruel was

working was part of the instructional environment, how-

ever, we need not reach the question of Piggee’s responsibil-

ities away from the college.

We have little trouble concluding that the beauty salon

was, in fact, one of the places where cosmetology instruction

was taking place. It is undisputed that students enrolled in

this program must participate in two different kinds of

instruction: classroom, and hands-on clinical work. This

type of program is exceedingly common, especially for those

learning some type of service. Law students almost univer-

sally have the opportunity to work in instructional clinics,

which typically are open to the public and offer legal

services to indigent clients; medical students begin super-

vised work with real patients in university-affiliated

hospitals and clinics while they are still in medical school,

even before they complete their formal education with a

residency. The beauty clinic operated by Carl Sandburg

College served exactly the same function: students were

No. 05-3228 9

able to learn their trade by serving customers under the

supervision of trained instructors like Piggee. Whether the

customers themselves were chatting about religion, or the

latest Chicago Cubs game, or the price of gasoline, the

college was entitled to insist on a professional relationship

between the students and the instructors.

The Supreme Court’s decision in Ceballos is not di-

rectly relevant to our problem, but it does signal the Court’s

concern that courts give appropriate weight to the public

employer’s interests. In that case, the employer had an

interest in the deputy district attorney’s recommendations

about prosecutions, in the face of a problematic search

warrant affidavit. Here, the public employer is a university,

and its interest is in the instructor’s adherence to the

subject matter of the course she has been hired to teach. We

recognized, in Pugel v. Bd. of Trustees of Univ. of Illinois,

378 F.3d 659 (7th Cir. 2004), that a university’s right to

monitor the data presented by graduate students, and its

right to take measures against false data, “has significant

ramifications on the discipline and rigor of the University’s

intellectual enterprise and, as a result, on the University’s

reputation in the broader academic and scientific commu-

nity.” Id. at 668. That interest outweighed any right the

graduate student had to present the questionable data.

Here, the college had an interest in ensuring that its

instructors stay on message while they were supervising

the beauty clinic, just as it had an interest in ensuring that

the instructors do the same while in the classroom.

Piggee’s “speech,” both verbal and through the pamphlets

she put in Ruel’s pocket, was not related to her job of

instructing students in cosmetology. Indeed, if it did

anything, it inhibited her ability to perform that job by

undermining her relationship with Ruel and other students

who disagreed with or were offended by her expressions of

her beliefs. The record reflects that her actions disrupted

Ruel’s education: he testified that he “avoided her like the

10 No. 05-3228

plague,” that he was unhappy that he still had to go to a

class that she taught, and that he felt unsafe because she

was present. Furthermore, while Ruel was the only student

who complained formally, Piggee herself testified that she

gave various religious pamphlets to other students as part

of her effort to “witness.” Out of eight student evaluations

of Piggee’s performance from the fall semester of 2001, five

spoke about Piggee’s emphasis on religion. One student

wrote “Mrs. Piggee usually inquires [sic] her religion into

everyday. Some people don’t always agree w/ what she feel.

I think that if we are taught that we are not to speak of our

religions in the salon, neither should she.” Another com-

mented “Mrs. Piggee is a great teacher, but I really do not

appreciate religion being discussed in school. I do not

believe the same way she does and don’t want to hear how

my religion is inferior to hers.” A third said “Mrs. Piggee . . .

told me that I was not saved & that I have the devil in me.

She also told me that she was going to get that devil out of

me. . . . I just wish that she will [sic] keep her religion out

of school.” This evidence shows, at a minimum, that the

college reasonably took the position that nongermane

discussions of religion and other matters had no place in

the classroom, because they could impede the school’s

educational mission.

What we have said thus far disposes of Piggee’s first two

points on appeal. We now comment briefly on the latter two:

that the college was imposing an unlawful prior restraint on

her speech and that its restraint was overbroad or vague.

The district court did not reach the merits of the prior

restraint argument. It thought that Piggee lacked standing

to ask for an injunction against the college’s actions,

because by the time she filed her complaint in October 2003

she had already been off the college’s payroll for a year.

Insofar as she was seeking prospective equitable relief, we

agree with the district court that the possibility of any

future injury was indeed too remote. See City of Los Angeles

No. 05-3228 11

v. Lyons, 461 U.S. 95, 105 (1983). Piggee responds only that

she remains on the substitute teacher list, and thus that

she could be called up any time. But she has not been

invited to teach at Carl Sandburg College since December

2002. We conclude that she cannot show that she “is

immediately in danger of sustaining some direct injury as

a result of the challenged official conduct and the injury or

threat of injury . . . is both real and immediate, not conjec-

tural or hypothetical.” Id. at 102; see also Sierakowski v.

Ryan, 223 F.3d 440, 444 (7th Cir. 2000) (finding that

plaintiff, whom doctors had tested for HIV, could not

demonstrate that he was likely to be tested without consent

in the future and therefore had no standing to request an

injunction).

It appears, however, that Piggee is also seeking compen-

satory damages from the individual college officials, acting

in their individual capacities, for the period of time between

September and December 2002. This argument implicates

the defendants’ qualified immunity argument. See Saucier

v. Katz, 533 U.S. 194 (2001). If, “[t]aken in the light most

favorable to the party asserting the injury, . . . the facts

alleged show the officer’s conduct violated a constitutional

right,” id. at 201, the court must decide “whether the right

was clearly established.” Id. The latter inquiry, the Court

emphasized, “must be undertaken in light of the specific

context of the case, not as a broad general proposition.” Id.

In United States v. National Treasury Employees Union,

513 U.S. 454 (1995), the Supreme Court held that when the

government imposes a prior restraint on employee speech,

it has a greater burden to justify its action than when it

makes an isolated employment decision. In order to support

a prior restraint, it must demonstrate that the interests of

both potential audiences and all employees (present and

future) in expression are outweighed by the restrained

expression’s “ ‘necessary impact on the actual operation’ of

the Government.” Id. at 468 (quoting Pickering, 391 U.S. at

12 No. 05-3228

571); see also Crue v. Aiken, 370 F.3d 668, 678-80 (7th Cir.

2004) (applying test). In Piggee’s case, however, it is not

clear what action of the college is the prior restraint to

which she objects. In her appellate brief, Piggee appears to

rest on the October 16, 2002, letter she received, which

directed her not to “comment or take action relative to one’s

sexual orientation or religion.” That letter purports to rely

on the college’s sexual harassment policy, but we do not

understand Piggee to be claiming that the policy itself is an

unlawful prior restraint.

For many of the reasons we explained earlier, we see no

reason why a college or university cannot direct its instruc-

tors to keep personal discussions about sexual orientation

or religion out of a cosmetology class or clinic. Only in the

most literal sense is this a “prior restraint.” We doubt

strongly that Piggee is waging an attack on all rules that

permit educational institutions to set curricula and to

establish relevant boundaries. Nor is Piggee arguing that

colleges have no right to prohibit speech that amounts to

sexual, racial, or other harassment, and if she were, we

would reject that position. Even though the sexual harass-

ment policy may not have been a perfect fit for the behavior

at issue here, the responsible college officials were not

unreasonable when they told Piggee that her actions had a

harassing effect on Ruel and that this fell within the ambit

of their anti-harassment policy. Under the facts before us

here, we conclude that the college’s policy was not an

unconstitutional prior restraint. The doctrines of vagueness

and overbreadth do not apply here, as no one was threaten-

ing to proceed criminally against Piggee.

III

Finally, we see no merit in Piggee’s due process or

equal protection arguments. She complains that she did not

have advance notice of the college’s policies prohibiting her

No. 05-3228 13

proselytizing, but she is looking at matters the wrong way.

The initial letters she received did provide her with notice.

Absolutely nothing happened to her when those letters were

sent: her salary was unchanged, her employment status

was unchanged, and nothing else adverse took place. Her

argument seems to contemplate an infinite regression of

notices, where any notice sent must have been preceded by

another notice that the second notice might come along. The

due process clause requires no such thing. Nor has she

stated an equal protection claim. She has not pointed to any

similarly situated non-Christian employee who was permit-

ted to discuss religion or homosexuality in the clinic, nor

has she suggested that only she, and not others, was held

accountable under the sexual harassment policy. To the

contrary, Linda Delawder received the same letter that

Piggee did.

We AFFIRM the judgment of the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-19-06