The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1369
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Linda Schilcher, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
University of Arkansas, Board of *
Trustees; Donald O. Pederson, Vice * [PUBLISHED]
Chancellor of Academic Affairs; *
Bernard Madison, Dean of the *
College of Arts and Sciences; *
*
Appellants. *
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Submitted: January 16, 2004
Filed: November 5, 2004
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Before MELLOY, BRIGHT, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Donald Pederson and Bernard Madison–who were at the relevant times the
Vice Chancellor of Academic Affairs at the University of Arkansas at Fayetteville
and the Dean of its College of Arts and Sciences, respectively–along with the Board
of Trustees of the University of Arkansas, appeal from the district court’s1 denial of
their summary judgment motion asserting qualified immunity. For the reasons
discussed below, we affirm the portion of the district court’s judgment that is
reviewable in this appeal–the denial of qualified immunity–and we dismiss the
remainder of the appeal for lack of jurisdiction.
I.
The following background information is taken from the record and is
undisputed for purposes of this appeal. In the early 1990s, the country of Saudi
Arabia donated approximately $20 million to the University of Arkansas at
Fayetteville for a Middle East Studies Program. Linda Schilcher was at that time a
tenured associate professor in the History Department at Villanova University in
Pennsylvania. She had teaching and research duties at Villanova’s Center for
Contemporary Arab and Islamic Studies. Schilcher applied to be a tenure-track
associate professor in the History Department at the College of Arts and Sciences at
the University of Arkansas at Fayetteville with teaching and research duties in the
Middle East Studies Program. She was hired, and she began teaching in the 1995-96
academic year. On the recommendations of the History Department, the College of
Arts and Sciences reappointed her for the 1996-97 and 1997-98 academic years.
In 1998, Schilcher underwent a “pre-tenure review,” also referred to as a “third-
year review.” During this process, she was evaluated not only to determine whether
she should be reappointed for another academic year, but also whether she was
making adequate progress toward tenure. The History Department, after noting room
for improvement in her teaching and her collegiality, recommended her
reappointment. The Personnel Committee of the College of Arts and Sciences,
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District
Court for the Western District of Arkansas.
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however, recommended that she not be reappointed because her teaching and
publications did not meet the standards for progress toward tenure. Dean Madison
considered these recommendations and decided not to reappoint Schilcher. She
appealed to Dean Madison and Vice Chancellor Pederson. After considering her
appeal, they affirmed the decision not to reappoint her.
Schilcher then sued in district court, alleging many claims under federal and
state law. The defendants2 moved for summary judgment. The district court granted
their motion almost in its entirety, dismissing all but one of Schilcher’s claims for
damages against the defendants in their individual capacities. The single claim which
survived summary judgment is the allegation that Madison and Pederson violated
Schilcher’s First Amendment rights: that, in deciding not to reappoint her, they were
substantially motivated by her previous speech on matters of public concern.
On this claim, Madison and Pederson made four arguments why they were
entitled to summary judgment, all of which the district court rejected. Madison and
Pederson argued that Schilcher’s speech did not address matters of public concern;
that even if she had engaged in protected speech, her speech was not a substantial or
motivating factor in their decision not to reappoint her; that Madison and Pederson
would not have reappointed Schilcher, regardless of whether she had engaged in
protected speech, because she had made inadequate progress toward tenure; and that
they were entitled to qualified immunity because the summary judgment record
showed no violation of her clearly established rights.
Pederson, Madison, and the Board of Trustees now appeal from the denial of
qualified immunity.
2
Additional defendants below–Mark Cory, Hoyt Purvis, Adnan Haydar, and
Mounir Farah–are not parties to the instant appeal.
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II.
An immediate appeal from the denial of qualified immunity, such as this one,
is quite limited in scope. The only question that is immediately appealable is
whether, taking as true the facts in the summary judgment record that favor the
plaintiff, it has been shown that the defendants violated clearly established law. See
Johnson v. Jones, 515 U.S. 304, 311 (1995). Beyond this narrow issue, we may
exercise jurisdiction only over issues that are “inextricably intertwined,” meaning
issues that would necessarily be resolved when we resolve the question of qualified
immunity. See Lockridge v. Bd. of Trs. of the Univ. of Ark., 315 F.3d 1005, 1012-13
(8th Cir. 2003) (en banc).
III.
Like the district court, we take as true the facts in the summary judgment record
favorable to Schilcher and determine whether those facts show a violation of clearly
established law by Madison and Pederson. See Johnson, 515 U.S. at 319. It is clearly
established that a public employer may not discharge an employee for engaging in
protected speech. See Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000). If the
facts most favorable to Schilcher do not show that she spoke on matters of public
concern, or do not show that Madison and Pederson were aware of her speech when
they did not reappoint her, then they would be entitled to qualified immunity. This
is the touchstone of our analysis.
It is clearly established that speech about the misuse or waste of public funds
is generally of public concern. See Domina v. Van Pelt, 235 F.3d 1091, 1098 (8th
Cir. 2000). In the context of a state university, we have previously held that a
professor’s allegations of misused funds and poor administration constituted speech
on matters of public concern. See Hamer v. Brown, 831 F.2d 1398, 1400-02 (8th Cir.
1987).
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However, it is not enough to say that a particular topic or subject is, at some
level of abstraction, a matter of public concern. We must analyze the content, form,
and context of the speech to determine whether the speaker was acting primarily as
a concerned citizen or as an employee. If the speech was mostly intended to further
the employee’s private interests rather than to raise issues of public concern, her
speech is not protected, even if the public might have an interest in the topic of her
speech. See Sparr v. Ward, 306 F.3d 589, 594-95 (8th Cir. 2002).
Although this is a question of law, it is, to say the least, a fact-intensive inquiry.
Our inquiry in this case was not particularly well-aided by the parties’ submissions
on appeal. The briefs dwell on issues that are beyond the scope of this appeal when
they should focus on guiding us through the long and confusing summary judgment
record that fills several thick volumes of appendices. Nonetheless, we have done our
best to make sense of this case, and we have gleaned from the record the following
instances of speech by Schilcher that Madison and Pederson were aware of when they
did not reappoint her.
A.
The summary judgment record shows that Schilcher began telling the Chair of
the History Department, Daniel Sutherland, as early as 1996 that she believed she was
being discriminated against by the administrators of the Middle East Studies Program.
She complained to him that the administrators, Director Adnan Haydar and Associate
Director Mounir Farah, both men of Arab descent, treated her poorly because she was
a woman and a non-Arab. She further complained that female and non-Arab students
in the program were also being discriminated against, and that Haydar and Farah’s
poor administration of the program was wasting its substantial endowment.
According to Schilcher’s deposition testimony, Sutherland told her that
Madison was aware of her concerns. (Appellee’s App. at 949-50.) Sutherland
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confirmed this in his deposition testimony. He recalled that on at least one occasion,
most likely during the spring of 1996, he alerted Madison to Schilcher’s concerns
about the operation of the Middle East Studies Program. Specifically, Sutherland
recalled relaying Schilcher’s perception that she was having trouble getting her
projects approved and her ideas addressed because Haydar and Farah were Arab men
who expected women to be subservient. (Id. at 1055, 1063-68.)
In June 1996, Schilcher (who was then still in her first year at the university)
and the three other professors who constituted the “core faculty” of the Middle East
Studies Program wrote a letter to Dean Madison. They asked to be put in charge of
administering the program, suggesting that this would an improvement over Haydar
and Farah’s leadership. (Appellants’ App. at 639.)
The summary judgment record further shows that Madison knew Schilcher had
aired her concerns to students. In October 1997, an undergraduate senior who was
enrolled in one of Schilcher’s classes wrote to Madison and Sutherland. The student
complained that Schilcher spent class time criticizing the leadership and direction of
the program. “[Schilcher] has repeatedly implied that Dr. Farah ‘has it in for her’
because she is a woman, and that the large Middle Eastern studies endowment is
being misused, even going so far as to make an outright accusation of corruption
within that program.” The student cited a day in which Schilcher “spent all but
fifteen minutes of a one hour and twenty minute class chatting with the graduate
students about departmental politics and her difficulties with the Middle Eastern
Studies program.” (Appellee’s App. at 134.)
Sutherland and Mark Cory, the Associate Dean for International Programs, met
with the student and filed a report with Madison. Sutherland noted that he “had heard
most of the complaints before, voiced by Dr. Schilcher and others, but [had] never
known Dr. Schilcher or any other faculty member to state their criticism in the
presence of students.” The student recalled two areas of criticism by Schilcher.
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“First, she complained that people with little or no experience in Middle East studies
have been given an inordinate voice in organizing and establishing the direction of
[the program and] attributed her own inability to influence the program to a prejudice
against women . . . and the influence of Dr. Monuir Farah.” “The second area of
complaint involved the expenditure of [program] funds . . . to send non-[program]
faculty on trips to the Middle East [and for] faculty to make private purchases while
in the Middle East.” Sutherland had discussed the situation with Madison before
interviewing the student, and he closed his report by asking Madison to direct him
how to proceed. (Id. at 59-60.) In their deposition testimony, Madison (id. at 828)
and Pederson (id. at 934) each specifically recalled the student complaint.
When the History Department conducted its third-year review of Schilcher in
May 1998, Sutherland sent Madison a letter summarizing the findings of the
professors who had visited Schilcher’s class to evaluate her teaching. One evaluator
had “expressed concern over what he took to be [Schilcher’s] criticism of the . . .
program (specifically, its tendency to ignore the region of the old Ottoman Empire).”
Sutherland noted that “[o]ther people, both faculty and students, have mentioned Dr.
Schilcher’s tendency to criticize perceived weaknesses in [the program], and it is
clearly an area that she must treat with more sensitivity.” (Id. at 25-26.)
As part of Schilcher’s third-year review, Dr. Haydar (in his capacity as the
Director of the Middle East Studies Program) prepared a review of Schilcher in
February 1998. In it, he noted that she was “opposed to the Program’s
administration” and “undermined the existing administrative leadership.” He said,
“Three times she charged out of meetings when her activities or proposals were
questioned.” Haydar commented on occasions when she had criticized the program’s
administration and policies. (Id. at 73-74.) Haydar’s review was included in the
materials that were sent to Madison and Pederson during Schilcher’s appeal.
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In her appeal to Madison and Pederson, Schilcher alleged at length various
ethical and procedural violations in the Middle East Studies Program’s
administration. (Id. at 28-52.) She noted Madison’s awareness of the dissension
among the program’s faculty by recounting a time when he attended a program
meeting and blamed the faculty members who were critical of the program
administration for “destroying” the program. (Id. at 29.) Schilcher noted her ongoing
attempts to reform the program’s governance structure, beginning with the June 1996
letter that the four core faculty members sent to Madison. (Id. at 39.)
B.
Viewing the summary judgment record in the light most favorable to Schilcher,
as we must, we agree with the district court’s conclusion that she spoke on matters
of public concern and that Madison and Pederson were aware of her protected speech
when they did not reappoint her. While the purpose of Schilcher’s speech was
undoubtedly mixed–intended to raise issues of public concern while also furthering
her own private interests–the content, form, and context of her speech leads us to
conclude that she was not speaking exclusively or predominantly in pursuit of her
own interests. For example, in the most recent case in which we held that an
employee at a public college “was speaking solely as an employee–and not as a
concerned taxpayer,” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir.
2004), we noted that while the employee’s topic of discussion with his coworkers–the
college’s employee salary list–could sometimes be of public concern, the employee
“did not question the salaries as a misuse of public funds, call for reforms in the
method of determining salaries, or otherwise voice any criticisms or concerns about
the published salaries,” id. In contrast, Schilcher did exactly what Koehn failed to do:
she did criticize the administration of the Middle East Studies Program as wasting the
program’s endowment, she did call for and propose reforms, and she did otherwise
voice her criticisms and concerns on multiple occasions.
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The appellants rightly direct our attention to de Llano v. Berglund, 282 F.3d
1031 (8th Cir.), cert. denied, 537 U.S. 973 (2002). That case involved a state
university professor who was terminated and sued, alleging that his speech on matters
of public concern led to his termination. He lost on summary judgment in the district
court, and we affirmed on appeal. We reviewed the letters he had sent to newspapers
and to the university president, and we concluded that they were dominated by a
“pattern of publicly complaining about private disputes that were unique to him and
not a matter of public concern,” with only “occasional . . . comments that are properly
characterized as issues of public concern.” Id. at 1037.
Given this characterization of the record in de Llano, we are convinced that the
instant case is a closer one. The content of Schilcher’s speech (including concerns
about corruption and misuse of public funds, curricular deficiencies, and
discrimination against persons other than herself), the form of her speech (being
directed up the chain of command to the program administrators, the chair of her
department, and the dean of her college), and the context of her speech (expressing
views shared by other faculty and beginning long before the university took any
adverse employment action against her) give rise to an inference that she was
speaking as a concerned citizen. At minimum, the inference that she was speaking
as a concerned citizen is at least as strong as the inference that she was speaking as
an employee furthering her own interests.
We are mindful that we are at the summary judgment stage, and we think that
this case is an illustration of the adage that summary judgment should be used in
employment cases only when all of the evidence “point[s] one way” and “no
reasonable inferences” can be drawn in favor of the nonmoving party. Hardin v.
Hussman Corp., 45 F.3d 262, 264 (8th Cir. 1995).
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IV.
We conclude that the two remaining arguments that Madison and Pederson
made below and reassert on appeal–that even if Schilcher had engaged in protected
speech, her speech was not a substantial factor in their decision not to reappoint her;
and that they would not have reappointed her, regardless of whether she had engaged
in protected speech, because she had made inadequate progress toward tenure–are not
reviewable in this appeal from the denial of qualified immunity because the district
court found a genuine issue of material fact as to whether Schilcher’s speech
influenced Pederson and Madison’s decision not to reappoint her. See Johnson, 515
U.S. at 319-20; Kincade v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir. 1995),
cert. denied, 517 U.S. 1166 (1996). Likewise, we conclude that the remaining
arguments the appellants present in their brief are beyond the scope of this appeal
because they are not inextricably intertwined with the question of qualified immunity.
See Lockridge, 315 F.3d at 1013; Kincade, 64 F.3d at 395.
Accordingly, we affirm the district court’s denial of qualified immunity, and
we dismiss on our own motion the remainder of the appeal for lack of jurisdiction.
We deny as moot both Schilcher’s pending motion to dismiss the appeal and the
appellants’ pending motion to strike Schilcher’s motion to dismiss.
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