Benjamin R. Brooks, M.D., Mohammed Sanjak, and Jennifer Parnell v. University of Wisconsin Board of Regents, Thomas P. Sutula, and Gregory C. Zalesak

CUDAHY, Circuit Judge,

dissenting in part.

Although the defendants may very well prevail at some later stage of the analysis (including at the Pickering balance between the government’s interest as employer and the employee’s interest as citizen), the plaintiffs’ issues here are matters of concern to a public that relies for its health care on the proper functioning of this public medical school. If these public questions can be cast as mere office complaints, the First Amendment will shrink accordingly, and speech that ought to be protected will be diminished. The Connick public concern inquiry, on which this *482 lawsuit was cut short, is preliminary to striking the Pickering balance and merely addresses the discrete question whether this protest, viewed in its own light, touched upon matters of concern to the public. 1

We have previously concluded that “[i]n broad general terms, of course, educational improvement and fiscal responsibility in public schools clearly are matters of public concern.” Klug v. Chicago School Reform Bd. of Trustees, 197 F.3d 853 , 858 (7th Cir.1999). This is especially so where some malfeasance or misuse of school funds is at issue. See Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir.1994) cert. denied, 514 U.S. 1036 , 115 S.Ct. 1400 , 131 L.Ed.2d 288 (1995) (holding that allegations of malfeasance and mismanagement in a university research lab touched upon matters of public concern); Berg v. Hunter, 854 F.2d 238, 243 (7th Cir.1988) (holding that intramural athletic coordinator’s accusation that school official had misrepresented the extent of school salary increases during a period of budget deficits touches on matters of public concern.)

Of course, finances need not even be the subject when charges of official misconduct in school affairs ought to be of concern to the public. We have held that speech involving other serious misconduct by school officials will fill the bill, including speech alleging academic misconduct by faculty members, Feldman v. Ho, 171 F.3d 494, 496 (7th Cir.1999), inappropriate sexual requests made by faculty members to students, Webb v. Board of Trustees of Ball State University, 167 F.3d 1146, 1150 (7th Cir.1999), and potential child abuse by a teacher, Crowley v. Board of Education of Lockport Township High School District 205, 17 F.3d 1059, 1067 (7th Cir.1994).

Even in the absence of affirmative misconduct, speech on general matters of school policy can implicate matters of public concern. Speech in this category may include contacting student athletes to persuade them that the school mascot degrades minority groups, Crue v. Aiken, 370 F.3d 668, 678 (7th Cir.2004), providing information to the media about the school board’s alleged violation of a local open-meetings law, Dishnow v. School District of Rib Lake, 77 F.3d 194, 197 (7th Cir.1996), writing a memorandum criticizing school grading policy, Hesse v. Board of Education of Township High School District No. 211, 848 F.2d 748, 751-52 (7th Cir.1988), and giving a speech to the school board concerning inequitable mileage allowances for school coaches, the extent of the school’s liability insurance and school grievance procedures, Knapp v. Whitaker, 757 F.2d 827, 840-42 (7th Cir.) cert. denied, 474 U.S. 803 , 106 S.Ct. 36 , 88 L.Ed.2d 29 (1985).

Plaintiffs’ speech here clearly relates to a matter of public concern. First, plaintiffs’ refusal to sign the petition in support *483 of defendant Sutula is expressive activity-protected -by the First Amendment, 2 and since the petition concerned a lawsuit against Sutula — -a top administrator of a public university medical school — it bore on issues of official misconduct. But even setting aside plaintiff Brooks’ refusal to sign the petition, it is undisputed that plaintiffs also expressed specific concerns, in meetings with medical school administrators between 2001 and 2003, over cuts in the MPL’s funding and Sutula’s alleged personal financial interests in a private venture that competes with the MPL for grant money. 3

In February, 2003, Brooks demanded a meeting with Paul DeLuca, Associate Dean for Research and Graduate Studies, 4 to address what he perceived to be unwarranted attacks on his clinical research and the resulting adverse effects on patient care. Brooks, together with plaintiff Parnell, met with DeLuca on March 20, 2003, and he spoke with DeLuca about the restrictions on his funding, the perceived attacks against his research by Chairman Sutula and the financial prospects of the NCRC and the MPL. There is also evidence that he raised concerns about Sutu-la’s involvement in NeuroGenomeX, a private venture which competed with the NCRC and MPL for funding, though this point is disputed. At the meeting, Brooks also gave DeLuca a power point presentation which contained information on Neu-roGenomeX, and DeLuca subsequently forwarded the presentation to Sutula. The day after this meeting, DeLuca e-mailed Sutula to describe. Parnell’s objections to the actions taken against Brooks’ research team and to inform Sutula that Brooks had complained to the Dean about restrictions on his grant privileges. In the e-mail, DeLuca recommended conducting a full investigation of these issues and suggested that he and Sutula might need legal representation in the upcoming fight over the research strictures.

As later restrictions on the MPL and NCRC were implemented, plaintiff Sanjak filed a formal grievance with the University opposing the closure of the MPL. Plaintiff Parnell also asserted that in the spring or summer of 2003 she went public by speaking to television reporter Tony Galle on multiple occasions regarding the administration’s attacks on the MPL and the NCRC, and plaintiffs allege that DeLuca held a press conference with the local news media to address these issues. These *484 communications remove any question about the public character of the dispute.

We need go no farther than Propst v. Bitzer, 39 F.3d 148 (7th Cir.1994) cert. denied 514 U.S. 1036 , 115 S.Ct. 1400 , 131 L.Ed.2d 288 (1995), to find a case very close to this one. There two university researchers alleged to university officials that the director of their laboratory had “diverted university resources to benefit himself and private companies that he controlled, and that he had failed to document various expenditures as required under university regulations.” Id. at 150. Our court determined that these allegations related to a matter of public concern, explaining that “[ajlong with other courts, we have recognized the importance of an employee’s interest in pointing out a misuse of public funds or other breach of public trust .... [sjpeech that seeks to expose improper operations of the government or questions the integrity of governmental officials clearly concerns vital public interests.” Id. at 152 (internal citations and quotation marks omitted). The allegations advanced by the plaintiffs in Propst are very similar to those made by Brooks, Parnell and Sanjak in the instant case— they accused Sutula of improperly cutting off the MCL’s funding in favor of a private venture in which he has a personal financial stake. The claim here is a classic accusation of malfeasance and abuse of public trust like the one addressed in Propst .

The fact that the plaintiffs have a personal interest in preserving a substantial treatment facility for patients with neurological diseases (the MPL) and in an important neurological research and patient care program (the NCRC), is not a basis to deny that the maintenance of these facilities and programs are matters of clear concern to the public. A personal motive reinforcing a plea to preserve medical research and treatment activities that serve patients and contribute research at a publicly-supported medical school detracts nothing from the public character of these activities. See Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.2000) (“ruling that [a] personal aspect contained within the motive of the speaker does not necessarily remove the speech from the scope of public concern”) (quotation marks omitted). And the issue here is whether these programs and activities are for the most part to be put out of existence not, as the majority suggests, whether they will simply not continue under the control of the plaintiffs.

In these respects, this case brings sharply to mind Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), the very font of First Amendment law involving protests of public employees affecting matters of their employment. In Pickering , a teacher in a public high school protested against the reallocation of public funds from academic programs, where the teacher was apparently involved, to athletic activities, where he was not. Obviously, the teacher had a personal interest in the allocation of funds, but this did not detract from the public importance of his protest.

In sum, plaintiffs’ allegations bear a striking resemblance to those deemed to be of public concern in Propst, supra, and they certainly relate to issues that might directly impact the taxpaying public — i.e., conflicts of interest and mismanagement in the administration of a public university medical center involving the level of public funding available for certain types of medical research and the availability of medical care for certain neurological disorders. Alleged conflicts of interest and cuts in funding for medical research and patient care at a publicly funded medical school are, to quote Connick, matters “of interest to the community upon which it is essential *485 that public employees be able to speak out freely without fear of retaliatory dismissal.” 461 U.S. at 149, 103 S.Ct. 1684 . “Whether public officials are operating the government ethically and legally is a quintessential issue of public concern.” Greer v. Amesqua, 212 F.3d at 371 .

As indicated, this lawsuit may well fail at a later stage of analysis when the inquiry focuses on whether the actions of the defendants were justified in the face of the plaintiffs’ protest. But the subject of the protest — the conduct of research and patient care at the medical school of a public university — is surely a matter of public concern, as well as a matter of personal concern to the plaintiffs.

I therefore respectfully dissent.

. Of course, the majority has framed the basic First Amendment retaliation test correctly: In order "[t]o determine whether speech is constitutionally protected, we engage in a familiar two-part inquiry traditionally known as the Connick-Pickering test.” Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir.2004) (citing Coady v. Steil, 187 F.3d 727, 731 (7th Cir.1999); Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968)). "Under Connick , we must determine whether the speech addressed a matter of public concern. If the speech did involve such a concern, under the Pickering balancing test, we then must determine whether the government's interest as an employer in providing effective and efficient services outweighs the employee’s interest as a citizen in commenting upon the matter of public concern.” Id. at 698 , 88 S.Ct. 1731 . "The determination of whether the speech is constitutionally protected is a question of law for the court.” Id.

. The Supreme Court has previously held that the First Amendment protects one's right to refrain from speaking no less than one’s right to engage in proactive expressive conduct. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943) (holding that an individual's right to abstain from reciting the Pledge of Allegiance is protected by the First Amendment). A citizen's prerogative to remain silent on an issue of public concern presumptively comes within the ambit of the First Amendment.

. Both this court and the Supreme Court have held that speech does not lose its protected character simply because it is expressed privately. See Connick, 461 U.S. at 146 , 103 S.Ct. 1684 ; Arnett v. Kennedy, 416 U.S. 134 , 94 S.Ct. 1633 , 40 L.Ed.2d 15 (1974) ("Speech is still speech—and still protected—even if it is made privately.”); Marquez v. Turnock, 967 F.2d 1175, 1178 (7th Cir.1992) ("Nor should it make any difference that most .of Marquez’s statements were made to other persons within the Department, rather than to the general public.")

. This court has indicated that where, as here, plaintiff's “communication was directed to individuals with significant influence in the Department," this fact suggests that plaintiff did "seek to bring to light actual or potential wrongdoings or breach of public trust.” Marquez, 967 F.2d at 1178 (quotation omitted).