Reply Brief — Bishop v. Delchamps

WSS UU, Use

FILED

| SEP 19 199)

OPFIGE OF THE CLERK

No. 91-286

IN THE

Supreme Court Of Che United States

OCTOBER TERM, 1991

PHILLIP A. BISHOP,

Petitioner

O. H. DELCHAMPS, JR., ET AL.,

Respondent

PETITION FORA WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

Davip M. SMOLIN

Southern Center for

Law & Ethics

P.O. Box 380113

Birmingham, AL 35238

Of Counsel

MICHAEL W. McConneELL*

Mark I. Levy

Mayer, Brown & Platt

190 S. LaSalle St.

Chicago, IL 60603

(312) 701-7201

ALBERT L. JORDAN

Timothy 8. RITCHIE

Wallace, Brooke & Byers

2000-A SouthBridge Pkwy.

Birmingham, AL 35209

* Counsel of record

TABLE OF CONTENTS

Page

TA oi i a its i

TAMEE OP AUTIIONIUIES occ okie cena i

REPLY BRIEF FOR PETITIONER ..............02.0000.

li

TABLE OF AUTHORITIES

Cases: Page

Cohen v. California, 403 U.S. 15 (1971) ............ 0-0 ee 3

Connick v. Myers, 461 U.S. 187 (1988) ...............20005- 7

Lav. Wasman, Ne. SIGE. oe kccevsceeurtereneee 4

Martin v. City of Struthers, 319 U.S. 141 (1943) ........20... 3

Tinker v. Des Moines Independent Community

School District, 399 U.S. 50S (1969) .................88- 6

Widmar v. Vincent, 454 U.S. 263 (1981)................... 2

Miscellaneous:

Laycock, Equal Access and Moments of Silence:

The Equal Siatus of Religious Speech by Private Speakers,

81 Nw L. Rov. ) (OGD) ...cccouce eee 3

REPLY BRIEF FOR PETITIONER

Respondents have many interesting — even radical —

things to say in defense of their power to censor unwelcome

viewpoints in the classroom and in out-of-class meetings be-

tween professors and students. Respondents dismiss this

Court’s statements about academic freedom as “rhetoric”

(Brief in Opposition (“Br. in Opp.”) 19, 21) and embrace,

unflinchingly, even the most extreme propositions put for-

ward by the decision below. This is not the occasion to deter-

mine whether any of respondents’ arguments are right. But

the Brief in Opposition only confirms that this is a case of

grave importance for the free speech rights of professors at

public universities. If respondents’ arguments are right, then

university administrators have not only the power but the duty

to “protect” the students from “inappropriate” viewpoints —

and academic freedom in the classroom is stripped of legal

protection. The Brief in Opposition thus stands as an argu-

ment in favor of granting the Petition.

1. It is startling to read (Br. in Opp. 5) that “the University

operates on the premise that its faculty members ... will re-

frain from using their positions as faculty members to advance

their personal views, whether political, social, or religious.”

This may be true in Albania, but it cannot possibly be true in

Alabama. In fact, professors at the University of Alabama are

free (as they are at other American universities) to “divulge

personal views in the classroom as long as they are not disrup-

tive of classroom activities.” Pet. App. A31. This case is about

discrimination against a particular opinion or viewpoint —

Professor Bishop’s religious viewpoint. As the record shows

(and respondents do not deny), Professor Bishop's “occasiona!

comments” in class do not differ from the expressions of other

faculty members on political, social, or other subjects in any

respect but one: his viewpoint is religious. Respondents are

driven, therefore, to defend one of two heroic positions —

either there is no academic freedom for the expression of

personal and professional opinion in the classroom, or the

2

University is permitted to discriminate against one particular

point of view. -

2. Respondents’ defense of viewpoint discrimination is

based on a supposed obligation under the Establishment

Clause to ensure that no religious comments — even “occa-

sional” ones — reach the ears of students in the classroom. If

this argument is true, the universities in America have a

mighty task of censorship in front of them, which few (if any)

have recognized.

The Establishment Clause limits the power of the govern-

ment, not the speech of the citizens. Respondents’ Establish-

ment Clause argument (Br. in Opp. 9-13) is based on the

presupposition that Professor Bishop is the government for

purposes of the First Amendment — that his speech is the

speech of the State. They analyze his purpose, and say that it is

not secular (7d. at 10-11). They analyze the effect of his state-

ments, and say that they advance religion (id. at 11-12). Our

position, by contrast, is that university professors are nol

mouthpieces for the State. They are independent profession-

als with academic freedom rights recognized under both the

regulations of the University and the Free Speech Clause of

the First Amendment. The correct question under the Estab-

lishment Clause, therefore, is whether the University has a secu-

lar purpose, and whether the effect of the University’s actions is

to advance religion. Cf. Widmar v. Vincent, 454 U.S. 263, 271-75

(1981) (focusing Establishment Clause analysis on the

University’s purposes and actions, not on those of individual

student speakers). As the district court held (Pet. App. A36),

this is not a close or difficult question. The University’s pur-

pose in allowing its professors to teach without interference or

censorship is to promote free exchange and scholarship. The

effect of this policy is to bring a diversity of views to the atten-

tion of its students, without favoring religion over nonreligion,

or nonreligion over religion.’

1On the entanglement issue, the “University would be forced, on an on-

going basis, to monitor Bishop’s comments” (Br. in Opp. 12) only if the

3

Respondents make a colorable Establishment Clause argu-

ment only by assuming that what is said in the classroom is

attributable to the State. See Br. in Opp. 12-13. This assumes

there is no right of academic freedom in the classroom, for if

the various professors in the various classrooms of the Univer-

sity are teaching from their various points of view, it follows

that no reasonable person could conclude that any of them is

speaking for the University.2 Whether academic freedom is

protected by the First Amendment (as we contend) or is

merely protected by University regulation (as respondents

concede), the result is the same: the professor’s speech is /ree

and is not subject to the limits on government power that are

imposed under the Establishment Clause. See Laycock, Equal

Access and Moments of Silence: The Equal Status of Religious Speech

by Private Speakers, 81 Nw. U.L. Rev. 1 (1986).

3. Even if respondents are correct that Professor Bishop’s

words are the words of the State for purposes of Establishment

Clause analysis, it would not follow that his optional lecture or

the “occasional comments” he makes in class would violate the

Establishment Clause. Under the facts of the case as deter-

mined by the district court and accepted by the court of ap-

peals, Bishop’s comments did not “rise to th[e] level” of “coer-

cion” or even of “proselytiz[ing].” Pet. App. A27, A32. The

court doubted “that [Bishop’s] minimal comments exert influ-

ence on the religious beliefs of college or graduate students”

(7d. at A36). If this Court were to conclude that respondents’

arguments about the Establishment Clause have a bearing on

the certworthiness of this case, it should, at a minimum, hold

University’s censorship of Professor Bishop’s speech is upheld. If his

academic freedom is upheld, there will be no need for “monitoring.”

*This explains why the principles are different for universities than for

elementary and high schools. Students in elementary and high school are

vulnerable to indoctrination and would not perceive the comments of the

teacher as being merely his own opinion. This is partly because of the age of

the students and partly because the traditional function of the elementary

and high schools is to inculcate community values.

4

the petition for consideration in light of Lee v. Weisman, No.

90-1014.

4. Respondents further claim that even if petitioner has

First Amendment rights, they must be “balanced” against the

rights of the students to be shielded from hearing his views.

Br. in Opp. 1415. This line of reasoning has long been re-

jected by this Court. See Martin v. City of Struthers, 319 U.S. 141

(1943). To allow the government “to shut off discourse solely

to protect others from hearing it” would “effectively empower

a majority to silence dissidents simply as a matter of personal

predilections.” Cohen v. California, 403 U.S. 15, 21 (1971). Un-

der a regime of academic freedom, the students have a First

Amendment right to hear viewpoints the government may

deem “inappropriate.” This right is complementary to the

professor’s right to speak. Far from “protecting ” the students’

First Amendment rights (Br. in Opp. 26), the University vio-

lates them when it attempts to filter out unconventional points

of view.

In this respect, religious viewpoints are not different from

any other viewpoints students might find irritating or provoca-

tive. Indeed, respondents take the position that students

should be protected from all of the “personal views” of the

faculty “whether political, social, or religious” (Br. in Opp. 5).

5. Respondents argue that academic freedom belongs to

the institution and not to the individual instructor, who has

few if any rights in the classroom. Br. in Opp. 16-22. In sup-

port of this proposition, they cite law review articles by two

distingished academicians. /d. at 16-19, 21. We are not un-

aware of the scholarly debate. Indeed, we cited yet another

scholar taking a similar position (Pet. 20), along with two

scholars supporting our position (Pet. 16, 20). That the issue

is a subject of intense debate in the scholarly literature only

underscores its importance.

Respondents can hardly claim that their position is widely

accepted; indeed, they have to explain away many statements

in this Court’s opinions as “rhetoric” (Br. in Opp. 19, 21) and

5

were not able to find a state or lower court opinion supporting

their position in the university context. The decision below is

in clear conflict with the weight of authority on this point.’

6. Respondents attempt to portray petitioner’s position as

“establish[ing] an absolute right for faculty members to speak

{in the classroom] about whatever they wish” (Br. in Opp. 9).

In the Petition, however, we take pains to explain that in

peiitioner’s view, the University has the right to set the cur-

riculum, evaluate the professional competency of the faculty,

and ensure that extraneous remarks do not consume so much

time that coverage of the material suffers, that the professor’s

comments be nondisruptive, and that the comments be

noncoercive. Pet. 28-29. Our position is simply that University

administrators must exercise these powers in a viewpoint-neu-

tral way, not singling out particular viewpoints or ideologies

for special regulation, and that within the limits so established,

professors have the right to express their personal and profes-

sional opinions in the classroom even if administrators think

those opinions are “inappropriate.”

7. The Brief in Opposition makes numerous claims about

the University’s interests in controlling faculty speech, which if

they are references to the facts of this case are clearly contra-

dicted by the record.

*Respondents make the carefully-worded claim that “(nJone of the cases

cited by peuuioner squarely hold that a professor, in the context of a

university class, has the right to interject comments about personal beliefs

unrelated to the subject matter over the well-founded objection of

administrators” (Br. in Opp. 19). As respondents concede, however,

Professor Bishop’s opinions “may be derived or inferred from the

conclusions Bishop draws from his study of the assigned subject matter” (1d.

at 9 n.6). Respondents do not deny that cases recognizing academic

freedom at the high schocl level apply a fortion at the university level. And by

definiion, none of the cases treat unconstitutional interference with

academic freedom as “well-founded.” Other than this thrice-meaningless

comment, respondents do not deny that the decision below is in conflict

with numerous lower court decisions, cited in the Petition at 18-19.

6

(a) Respondents claim (Br. in Opp. 18) an interest in en-

suring that the students’ right to “receiv[e] instruction for

which they had paid” is not thwarted by a professor who

“spend([s] class time discussing at his whim such things as his

religious beliefs.” Petitioner does not deny this interest, but

contends that it must be enforced evenhandedly, without dis-

crimination as to viewpoint. In this case, it is undisputed that

all petitioner’s comments, put together, never exceeded five

minutes over the course of a semester, and that other profes-

sors at the University spend this much time or more on mat-

ters not directly related to the curriculum. Petitioner himself

retains the freedom to spend class time talking about movies,

sports, politics, or other subjects. The directive does not refer

to the quantity of petitioner’s comments, but to their “Chris-

tian perspective.” Pet. App. A35. This suggests that this pur-

ported justification for the University’s order is a sham.

(b) Respondents assert that Professor Bishop’s classroom

comments were “wholly unrelated to his assigned subject,” sug-

gesting that this removes them from the protections of aca-

demic freedom. Br. in Opp. 9. Two pages later they note that

the optional lecture was “directly connected to the classes as-

signed to Bishop” (2d. at 11) — this time making the opposite

argument that the connection to his classes renders the

speech vulnerable to regulation.

We do not know what difference any of this makes, since

other professors are free to make comments unrelated to their

subject matter, and some of the most important First Amend-

ment cases in the academic freedom area involve nongermane

speech. See Tinker v. Des Moines Independent School Dist., 399

U.S. 503 (1969). But for the record, most of petitioner’s com-

ments did relate to his assigned subject. Certainly his com-

ments about coping with academic stress were relevant to his

work with graduate students on thesis research.* His com-

‘Professor Bishop teaches a course for graduate students entitled

“Dissertation and Thesis Research.” Deposition of Phillip A. Bishop (March

14, 1989) at 45.

7

ments about intelligent design “may be derived or inferred

from conclusions Bishop draws from his study of the assigned

subject,” as respondents concede (Br. in Opp. 9 n.6). And the

optional after-class meeting was based on “technical material”

covered in graduate physiology courses (Bishop Dep. at 39).

The court of appeals clearly stated that the University’s order

applied “even to the extent it represents [petitioner’s] profes-

sional opinion about his subject matter” (Pet. App. A20). Re-

spondents’ attempt to rewrite the question presented as in-

volving solely “personal” beliefs (Br. in Opp. i) — whatever

that means — is a mischaracterization of the holding below.

(c) Respondents warn that an individual faculty member

must not be allowed to “override[] collective judgments about

curricular content” (Br. in Opp. 25). But it is undisputed that

petitioner taught the assigned curriculum. The case is not

about choice of curriculum, but about the professor’s right to

express personal and professional opinions within the as-

signed curriculum.

(d) Respondents continue to claim that petitioner’s speech

was “coercive” (Br. in Opp. 9, 27). But the district court ex-

pressly rejected this allegation (Pet. App. A37, A36).°

(e) Finally, the University seeks to portray Professor

Bishop’s comments as dogmatic utterances “conveyed as un-

questionable truth” (Br. in Opp. 10). Nothing could be fur-

ther from the truth. Even the court of appeals acknowledged

that “Dr. Bishop’s efforts to identify a personal bias, present it

to his students, and hold it up for criticism are admirable”

(Pet. App. Al8 n.7). As a constitutional principle, we would

‘This finding was not contradicted by the court of appeals. To be sure,

that court stated that it was taking into consideration “the coercive effect

upon students that a professor’s speech inherently possesses” (Pet. App. Al6,

emphasis added). This was not a finding that Professor Bishop's speech, in

particular, was coercive, but that all classroom speech is coercive. We

strongly take issue with this conclusion (Pet. 23), but it does not help

respondents here. If all classroom speech by faculty is coercive, this can

provide no reason to single out Professor Bishop.

8

note that even dogmatic professors are entitled to freedom of

speech. But as a factual matter this charge is unfounded and

unfair.®

8. Respondents defend the so-called “balancing approach”

of the court of appeals (Br. in Opp. 22-25). But they make no

reference to the most objectionable feature of the court's ap-

proach: its reduction of the level of protection for academic

speech to the lowest level of scrutiny (Pet. App. Al5, Al6, Al9,

A20, A24), even when the University officials have engaged in

viewpoint discrimination (Pet. App. Al0, A20).’ Moreover, the

key element in the court’s balance was the University’s sup-

posed “interest... in scrutinizing expressions that ‘the public

might reasonably perceive to bear [its] imprimatur’.” Pet.

App. A1l3 (brackets in original). A “balance” conducted under

these terms is constitutionally defective, for the reasons set

forth in the Petition (at, 11-14). Conspicuously, respondents

do not deny that under the reasoning of the court of appeals,

a University would be able to suppress the expression of other

views (Maxism, feminism, opposition to affirmative action,

support for the Contras) that the public might also perceive as

being objectionable, as pointed out in the Petition (at 13-14,

29). Surely such a decision cannot be allowed to stand without

searching review by this Court.

*It is also post hoc. The administrators did not even know the precise

content of Professor Bishop's comments until after they had issued the

order. Deposiuon of Carl Westerfield (Jan. 5, 1989) at 29.

"Respondents’ claim that academic freedom rights are no greater than the

rights of public employees is addressed at Pet. 22-23. But it is particularly

absurd to argue that the professor's free speech right only applies to matters

of “public concern.” Br. in Opp. 22-24; cf. Connick v. Myers, 461 U.S. 137

(1983). If “public concern” is used in the narrow sense of pertaining to

government or public life, most of what goes on in the university classroom

falls outside that category. If “public concern” is interpreted more broadly,

the exchange of ideas in the university setting is inherenuy a matter of

public concern — no matter what the subject matter happens to be. It may be that

some speech by faculty (gossip in the faculty lounge, griping about poor

pay) is analogous to the speech in Connick, but speech in the classroom is

nou

9

9. Finally, respondents fall back on a plea that this Court

defer to “the institution’s professional judgment” (Br. in Opp.

21). In some cases, that might be well taken. But respondents

spent the first half of their brief telling us that their decision

to censor Professor Bishop was compelled by the Establish-

ment Clause. The administrators themselves had treated the

quesuon as a “legal issue” (Roth Dep. 20, 36), and had based

their decision on advice of counsel, who told them they had a

“duty” to “control this kind of activity.” Westerfield Dep. Exh.

10. They cannot now escape judicial scrutiny by claiming that

this is a pedagogical issue. Petitioner’s superiors have engaged

in naked viewpoint discrimination, and all possible neutral

explanations have been examined and refuted by the lower

courts. [he court of appeals has rendered a far-reaching opin-

ion eliminating constitutional protection for academic free-

dom in the classroom, applicable to political and social, as well

as religious speech. This is no time for deference. It is time for

reaffirmation of fundamental principles of constitutional law.

10

CONCLUSION

For the reasons stated in the Petition and those stated

above, the Petition should be granted.

Respectfully submitted,

MICHAEL W. McConneELL*

MakkK I. Levy

Mayer, Brown & Platt

190 S. LaSalle St.

Chicago, IL 60603

(312) 701-7201

David M. SMOLIN ALBERT L. JORDAN

Southern Center for . Timotny S. RITCHIE

Law & Ethics Wallace, Brooke & Byers

P.O. Box 380113 2000-A SouthBridge Pkwy.

Birmingham, AL 35238 Birmingham, AL 35209

Of Counsel * Counsel of record

SEPTEMBER 19, 1991