Opinion

Marcus B. Feldman v. Art Bahn

  • 12 F.3d 730
Court
Court of Appeals for the Seventh Circuit
Filed
Mar 9, 1994
Status
Published
Author
Flaum
On the bench
Wood, Flaum, Easterbrook
Cited by
21 cases
Authority
More cited than 25.8%

The opinion

FLAUM, Circuit Judge,

concurring in part and dissenting in part.

I concur in the decision to dismiss the appeals of those defendants sued only in their official capacity, but I am only in partial agreement with the majority’s disposition of the qualified immunity appeals that are properly before us. I agree with the majority that when presented with an accusation of intellectual dishonesty by one faculty member against another, officials of a public university should be afforded wide latitude in evaluating and acting upon that accusation. Even though acts of academic fraud financed by public monies are matters of clear concern not only to users of the state university system but to all taxpaying citizens, a university cannot function as a credible employer or academic institution without the ability to discipline members of its staff who irresponsibly impugn the integrity of the school or its faculty. Thus, the outcome of a Pickering balance is not foreordained when a university responds to a charge of plagiarism with disciplinary action against the accuser after some process of deliberation and investigation. Even when a university’s handling of the charge appears careless from a later vantage point, I agree that the balance of speech and employer interests usually will not be so obviously lopsided that responsible officials acting in good faith should forfeit their immunity from personal liability.

If, however, school officials punish an accuser not because of any judgment about the falsity, recklessness or unsupported nature of his charges but simply because they dislike the practice of questioning the work of their colleagues, regardless of the truth or manner of the charge, then I see no legitimate competing interests that could even begin to counterbalance the plain interest the public has in that kind of information being brought to light. It is not surprising that members of a faculty, moved by a profession’s instinct for self-preservation, may prefer to close ranks and stifle self-examination than to address the merits of a challenge to the integrity of one of their own. But I think it is evident that a parochial interest in chilling scrutiny of state university professors’ scholarly standards is not a valid basis for punishing speech in a public setting, and thus, a university official who fires a school employee solely on such a ground should not enjoy the shelter of official immunity.

I am not at all convinced that this type of speech suppression occurred at Southern Illinois University. However, the qualified immunity defense was raised here on a motion to dismiss whose denial we are now reviewing. As a result, we must take as true the allegations of the complaint and construe them liberally in plaintiffs favor. Our legal conclusions cannot be based on alternate scenarios of this affair that the University may paint once given the chance. (This is why qualified immunity is better raised on summary judgment than on a 12(b)(6) motion, see McMath v. Gary, Indiana, 976 F.2d 1026, 1031 (7th Cir.1992).) Looking at the complaint, I find it adequately alleges that defendants Ho’s and Bahn’s actions were motivated by a personal distaste for the kind of speech Feldman was uttering unconnected to valid institutional concerns. 1 Thus, at this stage in the litigation, I would decline to accord them immunity from damages.

. Chung Wu Ho was the chairman of the mathematics department and Art Bahn was a member of the grievance committee reviewing the decision to terminate Feldman.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.