Selzer v. Fleisher

KAUFMAN, Circuit Judge

(concurring in part and dissenting in part):

I concur in the majority’s decision to reverse the judgment entered for Selzer in the district court, 1 but I emphatically dissent from its decision to remand the case for a new trial. In my view, the majority simply assumes, without deciding, that Selzer’s activity is protected by the first amendment. 2 Since a fuller assessment of *815 the conflicting interests here at issue demonstrates that Selzer’s conduct does not merit constitutional protection, I am forced to conclude that the question of appellants’ liability should never have been presented to the jury. Accordingly, I would reverse the judgment for the appellee and dismiss the complaint.

Although not expressly set forth in the Constitution, a right of free association has been implied from the freedoms of speech, assembly, and petition explicitly guaranteed by the first amendment. Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976); Healy v. James, 408 U.S. 169 , 92 S.Ct. 2338 , 33 L.Ed.2d 266 (1972); Baird v. State Bar of Arizona, 401 U.S. 1 , 91 S.Ct. 702 , 27 L.Ed.2d 639 (1971). Like these express guarantees, however, the right to associate freely is not absolute, particularly where its exercise conflicts with the duties and responsibilities of a governmental employee. Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968).

In Pickering a public high school teacher was dismissed for publishing a letter in a local newspaper critical of the budget adopted by her employer, the board of education. After balancing the interest of the teacher, as a citizen, in her expression, with the interest of her employer in promoting the efficiency of the public services it performed, the Court concluded that the teacher’s interest in free expression outweighed the school board’s asserted interest in preserving harmonious relations between faculty and administrators. Pickering, supra, 391 U.S. at 569-74 , 88 S.Ct. at 1735-1737 . See also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414 , 99 S.Ct. 693, 695-696 , 58 L.Ed.2d 619 (1979); Mt. Healthy City School District v. Doyle, 429 U.S. 274, 284 , 97 S.Ct. 568, 574 , 50 L.Ed.2d 471 (1977). In striking the proper balance in future cases, however, the Court clearly suggested that a contrary result would follow if it were shown that an employee’s actions actually disrupted close working relations between members of the employer’s staff. Pickering, supra, 391 U.S. at 570 n.3, 88 S.Ct. at 1735 n.3.

In applying the guidelines laid down by Pickering , the courts of this Circuit have looked principally to the disruptive impact of an employee’s conduct or speech upon his co-workers. In Lefcourt v. The Legal Aid Society, 312 F.Supp. 1105 (S.D.N.Y.1970), aff’d, 445 F.2d 1150 (2d Cir. 1971), a Legal Aid attorney contended that he had been illegally discharged by the Society because he had been openly critical of his supervisors’ policies. In rejecting Lefcourt’s assertion that his criticisms enjoyed constitutional protection, Judge Lasker noted that the attorney’s statements had adversely affected the internal operations of his employer, and could reasonably be presumed to continue to do so in the future. Lefcourt, supra, 312 F.Supp. at 1112 . Since the Society depended “for its effectiveness on the close cooperation and unfettered communication (often confidential) of its staff and superiors,” Judge Lasker concluded that the ill-will and disharmony sparked by Lefcourt’s criticisms generated a sufficiently important interest in his employer to justify his dismissal. Id. at 1113 . See also Simard v. Groton Board of Education, 473 F.2d 988 (2d Cir. 1973).

The importance of a governmental employer’s interest in maintaining harmonious, effective working relationships among its employees was only recently emphasized by this court in Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17 (2d Cir. 1979). Janusaitis, a Connecticut firefighter, repeatedly criticized his superiors for mismanagement of the department. A protracted squabble ensued, which finally *816 culminated with Janusaitis’s dismissal after he publicly accused town officials of an illegal cover-up. Noting the distinction between the rights of an employee, such as Pickering, who merely expressed her views on the public policies and services of her institutional employer, and the rights of one, such as Janusaitis, whose conduct directly threatened his relations with his immediate colleagues and superiors, we rejected the contention that Janusaitis’s charges were deserving of constitutional protection. “Carping criticism and abrasive conduct,” we said, “have no place in a small organization that depends upon common loyalty [and] ‘harmony among coworkers.’ ” Id. at 26 (citation omitted).

Though the actual impact of an employee’s actions upon his colleagues is an important consideration in the balance to be struck, it cannot be accorded dispositive weight. Any number of private associations or expressions may in fact disrupt a small, homogeneous office, or incur the hostility of one’s co-workers. But the subjective predilections of a majority of the employees ought not be permitted to justify the imposition of a stifling regime for the remainder. Rather, courts must also consider the intensity of the reaction, its likelihood of recurrence, and especially the degree to which the activities for which the employee claims protection necessarily affects the proper discharge of his professional responsibilities. The President’s National Security Advisor obviously can claim no constitutional right both to serve in his sensitive position, and to moonlight as a newscaster. A postal employee, however, may well have a right to just such an association with the media, particularly where he occupies no position of high trust. In short, courts must determine whether the employee’s association is antithetical to the performance of his duties, and to those of his colleagues.

In the instant case, there can be no doubt that Selzer’s involvement with the CIA was directly relevant to his application for tenure. Since Selzer had evidently decided to exchange information, covertly, with an intelligence agency, other members of the faculty could reasonably question his commitment to the" academic endeavor. Though it may well be debatable whether the course Selzer chose advanced scholarly objectives, there can be no doubt that his decision to pursue such a course was relevant — indeed critical — to an informed appraisal of his qualifications for permanent appointment to the faculty. After all, Brooklyn College was seeking a teacher and a scholar, not an espionage agent.

That Selzer’s association with the CIA in fact disrupted the orderly operation of the College and particularly its Political Science Department cannot be gainsaid. From the moment word of Selzer’s involvement with • the agency first circulated among Department members until a decision upon his tenure application was finally reached, it appears the Department transacted little other business than to deal with the tempest created by his activities.

But more to the point, Selzer’s conduct was inherently disruptive. Professional respect and mutual trust are essential to the vitality of an intellectual community. The unrestrained interchange of ideas, so necessary for the advancement of human knowledge and understanding, presupposes a commonality of scholarly purpose as well as a willingness to extend, and keep, confidences. By associating with the CIA, Selzer cast doubt upon his scholarly goals and principles. The nature of his association contravened what many colleagues considered to be an acceptable norm of academic behavior, and its likely effect was to inhibit them in their relations with him. Moreover, in refusing to disclose the manner and extent of his involvement with the agency, even after his CIA contact had expressly advised him that he was free to do so, Selzer exhibited a disturbing reluctance to share, and keep, personal confidences. Particularly where, as here, the very nature of his association posed an obvious threat to the scholarly pursuits, both of *817 the College and of his colleagues, 3 Selzer’s obstinate refusal to discuss his involvement with the agency evidenced a disdain for his peers that quite naturally evoked in them a similar aversion for him. Although the Department’s agitated response was by no means beyond reproach, it was certainly predictable. This is particularly so in view of the “critical importance” of the tenure decision that was about to be made See Simard, supra, 473 F.2d at 996 .

Courts, of course, must stand ever vigilant lest public employers attempt to mask unwarranted inroads upon an employee’s constitutional freedoms under the rubric of disharmony and employee dissension. In the instant case, however, I fail to see how Selzer’s conduct could be anything but disruptive and counterproductive to the legitimate ends of his employer. In such circumstances, I believe the appellants’ strong interest in preserving collegiality and productive relationships among the Brooklyn College faculty must carry the day, particularly if the goal of affording students a challenging, uninhibited education is to be realized. Accordingly, I would reverse the judgment for Selzer and dismiss the complaint.

. Where, as here, a disappointed candidate for tenure seeks money damages, and not reinstatement, from those individuals who considered his qualifications and participated in the decision to deny his application for tenure, I fully agree with the majority that each defendant must be accorded an independent opportunity to prove that he would have voted to deny tenure even if the plaintiff’s protected conduct or speech had not entered into his consideration. Determination of which, if any, of the defendants would have voted to deny tenure despite the plaintiff’s protected activity should not end the inquiry, however. Rather, the trier should then proceed to determine whether there would have been sufficient opposition to the application, untainted by improper considerations, to have caused the denial of which the plaintiff complains.

. The district court also failed to resolve whether Selzer possessed a protected interest in his association with the CIA. Following presentation of the appellee’s case, appellants *815 moved to dismiss the complaint arguing, inter alia, that Selzer had failed to demonstrate that his involvement with the CIA merited constitutional protection. The district court rejected this argument, stating that the question presented an issue for the jury. But, when the district judge submitted the case to the jury, he neglected to instruct it to determine whether Selzer’s association with the CIA merited constitutional protection. In any event, the question presents an issue of law for resolution by the court, and not the jury. See Bernasconi v. Tempe Elementary School District No. 3, 548 F.2d 857, 862 (9th Cir. 1977).

. Before Selzer first contacted the CIA, he asked a colleague in the Political Science Department, Herbert Weiss, for the names of individuals in Europe who might assist him in his research into Nazi war collaborators. Weiss gave Selzer the name of a close friend in Belgium. Subsequently, after the possibility of Selzer’s involvement with the CIA became generally known, Selzer informed the members of the Political Science Department that, if he had any contact with the CIA, it was solely to relay information imparted to him overseas. Though Selzer also stated that he would never compromise his colleagues “by imparting any information they had revealed to [him] or which any source to whom they had directed [him] had revealed to [him],’’ his refusal to admit the fact of his association with the CIA obviously discredited his assertions.