Opposition Brief — Klein v. Courtwright

| FILED

| APR 1 1999

No. 98-1303

£ THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

ELLEN R. KLEIN,

Petitioner,

DAVID COURTWRIGHT, individually, and DAN SCHAFER,

individually, and as past and present chairpersons of the

Department of History, Philosophy and Religious Studies of the

College of Arts and Science of the University of North Florida,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN F. DICKINSON

Counsel of Record

F. DAMON KITCHEN

MALFITANO CAMPBELL & DICKINSON

Attorneys for Respondents

300 West Adams Street, Suite 650

Post Office Box 41099

Jacksonville, Florida 32203

(904) 356-8900

152199 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

QUESTIONS PRESENTED

1. Whether the United States District Court for the Middle

District of Florida erred in granting summary judgment in favor

of Respondents?

2. Whether the United States Court of Appeals for the

tleventh Circuit erred in affirmyag the district court’s award of

summary judgment in favor of Respondents?

ii

PARTIES TO THE PROCEEDING

The Petition for Writ of Certiorari served on Respondents

contains no list of parties to the proceeding and is therefore in

derogation of the Rules of this Court. Nevertheless, Respondents

state that the parties to this proceeding are as follows:

Petitioner is Ellen R. Klein. Respondents are David

Courtwright and Dan Schafer. Petitioner has sued each of these

Respondents in both their individual capacities and in their

official capacities, as past and present Chairmen of the University

of North Florida’s Department of History, Philosophy and

Religious Studies. To the extent Petitioner’s official capacity

claims against these Respondents are directed at the University

of North Florida, it should be noted that the State of Florida,

Board of Regents, not the University of North Florida, is the

body corporate.

Adam W. Herbert was named as a defendant, below, while

this proceeding was before the United States District Court for

the Middle District of Florida. Petitioner, however, did not

appeal the district court’s dismissal of Adam W. Herbert and

Petitioner has not named him as a Respondent in her present

Petition for Writ of Certiorari.

TABLE OF CONTENTS

Page

Questions Presented .........--eeeeeeereereees i

Parties to the Proceeding ........-.--seeeeeeees il

Table CE COMNGTES icc c cc cc rs ccsservess ill

Table of Cited Authorities ...........-.-0e eee Vv

Seatemoent of the Case .. 1. ccc cccccccccesececes 1

A. Course of the Proceedings and Disposition in

ES Pr rr er eee ree i

B. Statement of the Facts ...........-...06: 2

1. Petitioner’s Support of David Fenner .. 4

2. “Germany Today.” .....-..eceeseee: 7

3. Feminism Under Fire. ..............- 8

4. Petitioner’s Application for Promotion and

Ca oo he da see peste $6 4e Hee ee 8

Reasons for Denying the Writ ............0+555: 12

I. The Petition Should Be Denied Because The

Opinion Of The United States District Court

Does Not Conflict With The First Amendment

Or The Academic Freedoms It Protects ..... 12

Il.

IT].

IV.

iv

Contents

The Petition Should Be Denied Because The

United States Court Of Appeals For The

Eleventh Circuit Acted In Accordance With Its

Own Rules And Because Its Affirmance Of The

District Court’s Ruling Is Consistent With This

Court’s Prior Rulings And Does Not Conflict

With Decisions Of The Second And Eighth

PERE PO Or ET oo es pe le de

The Petition Should Be Denied Because The

Opinion Of The United States District Court Is

In Accordance With Rulings Previously Made

By The Eleventh Circuit And Is Not Inconsistent

With Either Previous Opinions Of The Fifth And

Tenth Circuits Or This Court .............

The United States District Court Did Not Err In

Granting Summary Judgment To Respondents

ee@eoevevocoaceo Cee eaeeaeseee se eeoeeCeo eee ee egcCeeeseeseeeae

Page

13

19

bho

ws)

TABLE OF CITED AUTHORITIES

Page

Cases:

Adams v. Poag, 61 F.3d 1537 (11th Cir. 1995) ..... 15

Barnhard v. Jackson County, 43 F.3d 1218 (8th Cir.

SORE Sivas sk eeeredese sever atc sees tances 17, 18

Bausworth v. Hazelwood School District, 986 F.2d 1197

Cee GAs SOO SP ive ore ce ks Lchvavawebbenea us 17

Board of County Commissioners of Waubansee County

v. Umbehr, 518 U.S. 668 (1996) .............. 13

Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.

SPD VEN NUE TA OM Ord wi aA oath ia Whee eos 18

Conaway v. Smith, 853 F.2d 789 (10th Cir. 1988) .. 21, 22

Connick v. Myers, 461 U.S. 138 (1983) .......... 13,18

Cox v. U.S. Steel, 17 F.3d 1386 (11th Cir. 1994) ... 15

D’Auganno v. Gallagher, 50 F.3d 877 (11th Cir.

SEE een ante dee ce ad eteeetre eee 24

Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996) . 21, 22

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........ 24

vi

Cited Authorities

Page

Kaprelian v. Texas Woman's University, 509 F.2d 133

CONG: STS) ic ive Cadlc wd vawsuvvebsaciewet 20, 21

Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994) ....... 17

Maples v. Martin, 858 F.2d 1546 (11th Cir. 1988)... 19, 20

McDaniel v. Woodard, 886 F.2d 311 (11th Cir. 1989)

LETC Pe PITS TT CPT TTP he ee 24 |

.

Mitchell v. Forsyth, 472 U.S. 511 (1985) ......... 24 |

O'Connor v. Chicago Transit Authority, 985 F.2d 1362 |

i Bo AS) Pe ee Re rene. 18 |

Perry v. Sinderman, 408 U.S. 593 (1972) ......... 13 |

Pickering v. Board of Education, 391 U.S. 563 (1968)

patho ieee ss 00s Mee hee ae veer sen eae 13

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) . 25

White Plains Towing Corporation v. Patterson, 991

Fede ROCF AAs SUSE) hitedecerewewene nets 17 |

Williams v. Alabama State University, 979 F. Supp. ,

SUG Eke, PM OPT) vac Wedd ducensaskiens 21

Cited Authorities

Page

United States Constitution:

First Amendment ..............- 1, 12, 13, 17, 18, 20, 23

Rules:

Eleventh Circuit Rule 28(c) ........ Fa on a Paew ters 24

Eleventh Circuit Rule 36-1 ................ eS

Eleventh Circuit Rule 36-l(d) ............6-445. 15

United States Supreme Court Rule 10 ............ 25

United States Supreme Court Rule 42.2 .......... 25

]

STATEMENT OF THE CASE

A. Course of the Proceedings and Disposition in the Courts Below

Petitioner, Ellen R. Klein, Ph.D. (hereinafter “Petitioner”), filed

a civil complaint on August 8, 1996, asserting First Amendment-

based Section 1983 and All Writs Act claims against Appellees, David

Courtwright, Ph.D. (hereinafter “Respondent” or “Courtwright”), and

Dan Schafer, Ph.D. (hereinafter “Respondent” or “Schafer”), in their

individual capacities and as past and present Chairpersons of the

Department of History, Philosophy and Religious Studies (hereinafter

“Department”) of the College of Arts and Sciences at the University

of North Florida (hereinafter “University”). [R1-1-1]. In her

complaint, Petitioner alleged that she was denied tenure and promotion

to Associate Professor for her “speech” — allegedly protected by

the First Amendment — due to: (1) her support of a close friend in

the search for an assistant professor position; (2) her alleged “report”

of racial discrimination in hiring (as allegedly demonstrated through

minutes of a faculty meeting); (3) her posting of multiple copies of a

course prefix designation decision by the Florida Department of

Education for the course, “Germany Today;” and (4) as a result of

her publishing a book titled, Feminism Under Fire. [R3-31-3]. On

October 7, 1996, Respondents moved to dismiss Petitioner’s

complaint. [R1-4-1]. In its order on Respondents’ motion to dismiss,

the district court noted that the All Writs Act was not applicable to

the case. [R1-12-1, n.1].

Petitioner subsequently amended her complaint on May 28, 1997

to include Adam Herbert, Ph.D. (hereinafter “Herbert”), former

President of the University, suing him only in his official capacity

under the All Writs Act, and maintaining her previous claims against

Respondents. [R3-31-1,2]. On June 9, 1997, Respondents moved to

partially dismiss Petitioner’s amended complaint because the court

had already decided that the All Writs Act was inapplicable. [R3-34-

3}. The district court granted Respondents’ motion in an order dated

June 26, 1997. [R3-41-1, n.1]. On August 25, 1997, Herbert filed a

motion to dismiss Petitioner’s amended complaint, arguing that the

cause of action against him under the All Writs Act failed to state a

claim upon which relief could be granted. [R3-61-1]. Subsequently,

2

on September 12, 1997, Respondents filed a motion for summary

judgment on the basis that no genuine issue of material fact existed

concerning: (1) the personal nature of Petitioner’s speech; or (2)

Respondents’ entitlement to qualified immunity from suit. [R3-

62-1]. The district court ruled on these motions on October 23, 1997,

granting Respondent’s motion for summary judgment, as well as

Herbert’s motion to dismiss. [R4-78-9].

Petitioner filed a notice of appeal of the district court’s award of

summary judgment on November 18, 1997. [R4-80-1]. Petitioner

thereafter filed her initial appellate brief with the United States Court

of Appeals for the Eleventh Circuit (hereinafter “Eleventh Circuit”)

on March 21, 1998. On appeal, Petitioner asserted that the district

court erred in determining that her speech was not a matter of public

concern and that the district court furthermore erred in finding that

Respondents were entitled to qualified immunity from suit. Petitioner

did not appeal the district court’s order dismissing Herbert from the

case. On May 21, 1998, Respondents filed their answer brief with

the Eleventh Circuit. Petitioner then filed a reply brief with the

Eleventh Circuit on July 7, 1998. In her reply brief, Petitioner raised

the issue that the district court’s determination that Respondents, in

their individual capacities, were entitled to qualified immunity from

suit, did not bar her official capacity claims for prospective equitable

relief against Respondents. This issue previously had not been raised

by Petitioner either before the district court or in her initial appellate

brief.

On December 18, 1998, the Eleventh Circuit. pursuant to Rule

36-1 of its own rules, affirmed the district court’s award of summary

judgment in favor of Respondents, per curiam, without issuing a

written opinion. Petitioner now seeks certiorari review from this Court.

B. Statement of the Facts

Petitioner was initially employed by the University of North

Florida as an Assistant Professor of Philosophy for academic year

1991-1992. [R2-27-B-3-13]. She was re-employed by successive

one year contracts until 1997, when she was notified that she was not

recommended for either promotion to Associate Professor or for

es

3

tenure. [R1-16-R]. Petitioner’s last contract with the University was

during academic year 1996-1997, and her employment with the

University officially ended on May 6, 1997. [R2-27-B-3-413; R1-

13-1).

Petitioner’s employment at the University began on a positive

note. For example, in his commentary as Chair of the Department in

1992, Courtwright wrote that, as a teacher, Petitioner had “an

outstanding first year .. . .” that Petitioner’s scholarship “was very

good . . . ,” and that her service was “satisfactory. . . .” [R1-16-CC].

In 1993, Courtwright, as Chair, raised a concern with Petitioner’s

low rate of return of Student Instructional Report forms, or “SIRs.”

[R1-16-DD-1]'. Courtwright stated that “[i]t would be a real tragedy

if a low response rate cast a shadow of suspicion over her excellence

as a teacher, a quality that is undoubtedly real and of great benefit to

the institution and its students.” [R1-16-DD-1]. Courtwright noted

that Petitioner’s scholarship was good, as Feminism Under Fire was

in the works at this time; also, Courtwright explained that Petitioner’s

service was “very good.” [R1-16-DD-1,2].

For academic year 1993-1994, Professor John Maraldo

(hereinafter “Maraldo”) was the Acting Chair of the Department; thus,

he provided the Chair’s commentary on Petitioner. [R1-16-EE; R5-

70-44]. As Courtwright had done, Maraldo cautioned Petitioner as

to her iow SIR return rate, and he strongly recommended to Petitioner

that she provide more documentation as to her teaching. [R1-16-EE-

1; R5-70-44]. Also, even at this early date, Petitioner was beginning

to have problems with her departmental service. Accordingly, in his

commentary, Maraldo wrote that he could not regard Petitioner’s

service contribution at the departmental level “as either collegial or

cooperative.” [R1-16-EE-2].

Since the SIRs are used to evaluate an individual’s teaching

effectiveness, every faculty member is responsible for creating, over

time, a profile of his or her effectiveness in this area. [R2-27-A-Tab

5-18, 19]. An individual seeking either promotion or tenure is

1. SIRs are forms distributed to students to evaluate their professors and

are required for all courses taught by non-tenured faculty. [R2-27-A-Tab 5-

19,20].

4

evaluated on the basis of his or her entire term at the University; thus,

this teaching profile serves as a means to evaluate an individual's

teaching ability. [R2-27-A-Tab 5-26]. Petitioner, however, made it

known throughout her time at the University that she did not like this

established requirement and, in clear dereliction of the requirement

that the SIRs be distributed by non-tenured faculty for every class,

Petitioner gave students an option of whether or not to complete the

forms. [R2-27-B-6; R4-64-F-Tab 1]. Specifically, Petitioner stated

in her annual report for academic year 1994-1995 that:

I do not have SIR forms available for all courses. This is

due to the fact that there is a great deal of controversy

surrounding the legitimacy of these forms on campus,

therefore, I offer students the choice: SIR and/or attached

evaluation.

[R4-64-F-Tab 1-1, n.1].

1. Petitioner’s Support of David Fenner

Beginning in 1994, Petitioner evinced a personal crusade to have

her friend, David Fenner (hereinafter “Fenner’’), hired as an Assistant

Professor of Philosophy. Fenner was hired for academic year 1992-

1993 as a Visiting Assistant Professor. Petitioner claims that she was

retaliated against and denied promotion and tenure because of her

support of her friend, Fenner, and her circulation of her version of

minutes of a November 15, 1994 departmental meeting regarding

Fenner. [R3-3 1-3-7]. Petitioner and Fenner both received their Doctor

of Philosophy from the University of Miami. [R4-64-E-4-]5; R2-

27-B-9, n.3]. Fenner was also Petitioner’s research partner at one

time. [R4-64-E-4-]5]. Petitioner’s personal mission to have her close

friend hired permeated every aspect of her relationship with the

Department.

For example, during 1994, the Department was involved in a

search for an Assistant Professor. The Philosophy Search Committee

(hereinafter the “Committee”) met on March 3, 1994, and each

Committee member gave his or her evaluation of the candidates for

the position. [R4-64-E-4-45, and Tab 1]. During this meeting,

Petitioner continually interrupted with her feelings that her close

as et A PO ae

Poe ta VS NE

personal friend, Fenner, should be offered the job. [R4-64-E-Tab 1}.

The members had to request numerous times that Petitioner allow

them to continue their evaluations without interruption. [R4-64-E-

Tab 1]. Following the members’ evaluations of the candidates, the

committee voted that no candidate be selected at that time and that

the search be continued. [R4-64-E-Tab 1- 4]. The Committee voted

twice, but Petitioner left the meeting before the second vote. [R4-64-

E-Tab 1-4].

Following the March 3, 1994, Committee meeting, Petitioner

wrote to the Dean of the College of Arts and Sciences, Lewis

Radonovich (hereinafter “Radonovich”), urging that he give Fenner

the “chance to prove himself (again) by teaching what the Department

claims is so essential with respect to Ancient and Ethics [philosophy

courses]... .” [R4-64-E-Tab 2-1]. In a later letter to Radonovich

concerning Fenner, Petitioner illustrated just how personal this matter

was to her:

As for me, well, I do not really want to be here without

Fenner. Although I agree with you that I could earn tenure,

I do not see how without Fenner, this would make any

real difference.

[R4-64-E-Tab 3].

During the search for an Assistant Professor, Courtwright

proposed to employ Fenner as a ntinority hire in philosophy; thus, he

called a special Department meeting on November 15, 1994 for this

purpose. [R2-27-B-8-§22; R5-70-146]. In Courtwright’s words, he

“was trying to help David Fenner.” [R5-70-146]. Courtwright invited

Radonovich and Carson C. Cook (hereinafter “Cook”), the

University’s Director of Equal Opportunity Programs, to attend the

meeting so that members of the Department could ask whether hiring

Fenner was an appropriate, legal thing to do. [R5-70-138]. According

to Cook, it was Courtwright’s proposal to offer the job to Fenner.

{R2-28-2-95]. Schafer was not present at this meeting; in fact, he

was out of the country. [R2-27-A-5-22; R4-64-F-5-{9].

The responsibility for taking minutes of Department meetings

typically rotated among members of the Department, and this time,

6

the responsibility fell to Petitioner. [R2-27-B-9; R5-70-110]. As the

purpose of this meeting was to ask questions regarding the legality of

hiring Fenner, the members of the Department took advantage of this

opportunity to explore the matter. [R2-27-B-9; R5-70-138].

Unfortunately, because of Petitioner’s personal crusade for Fenuer,

the minutes she prepared were inaccurate in that they misattributed

and mischaracterized several questions or comments made by the

individuals present at the meeting. [R2-27-C-3-48].

Departmental policy required that the minutes of the meeting be

approved by those present at the meeting prior to their being circulated

out of the committee. [R2-27-B-9]. However, prior to giving the

individuals at the meeting a chance to review the minutes, Petitioner

submitted her minutes to her union representative. [R2-27-B-9; R5-

70-145}. Individuals within the Department were surprised to learn

that their statements during this Department meeting had been

mischaracterized in such a fashion and that they were given no

Opportunity to review the minutes prior to the circulation of those

minutes outside of the Department. [R5-70-145].

Because of the inaccuracies in the minutes prepared by Petitioner,

the Department had to rewrite accurate minutes, which were

subsequently adopted at a January 17, 1995, meeting, where Petitioner

herself voted for the revised minutes. [R5-70-146; R5-70-147; R4-

64-I-2-45; R4-64-J-2-95; R4-64-K-2-]5; R4-64-L-2-95; R4-64-M-2-

{5; R4-64-N,-2-95; R4-64-O-2-95; R4-64-P-2-95]. Petitioner’s actions

disrupted departmental functions in several ways: Petitioner violated

policy regarding the circulation of minutes, her colleagues were not

given an opportunity to review the minutes prior to their being

circulated outside of the Department, and the Department had to

redraft and approve accurate minutes. [R2-16-FF-1].

On November 30, 1994, Petitioner approached Courtwright

regarding the hiring of Fenner. [R4-64-E-Tab 4]. Because of

Courtwright’s feeling that Petitioner's behavior was inappropriate,

he recorded in a memorandum what transpired:

Professor Klein ... said that my proposal to consider

hiring Professor Fenner ‘wasn’t doing enough’ to help him,

7

that what I really needed to do was act like a philosopher

king and, in my capacity as hiring officer to simply select

him, thereby ending the “oppression” of the “tyranny of

the majority.” Democracy, she said, was “inherently evil.”

[R4-64-E-Tab 4; R5-70-151]. It appeared to Courtwright that

Petitioner, based upon her actions regarding Fenner, “had become

obsessed with this search. .. .” [R4-64-E-Tab 4].

2. “Germany Today.”

Petitioner also claims that she was retaliated against because of

her “speech” in connection with a course entitled “Germany Today.”

[R-3-31-3-¥7]. This course, taught by Associate Professor Andrew

Buchwalter, Ph.D. (hereinafter “Buchwalter”), had been offered by

the Department as a special topics course. [R4-64-E-8-99; R5-70-

56]. No review external to the Department is required for special

topics courses. [R5-70-71]. These courses do not appear in the course

catalog. [R4-64-E-8-99]. All courses which start as special topics

courses, and which the Department desires to place in the course

catalog, must proceed through a multi-level review process to be

designated with a permanent course prefix, such as PHI for a

philosophy course. [R5-70-67].

The review process for the “Germany Today” course was initiated

by Maraldo as Acting Chair during academic year 1993-1994. [RS5-

70-59; R4-64-E-8-99]. At issue was whether to approve the course

as bearing a permanent PHI philosophy prefix. [R5-70-59]. However,

this decision had no effect on whether the course would be taught or

on the credit received by philosophy students toward graduation.

Regardless of whether the PHI prefix was approved for the course,

students could not take the special topics course, nor the PHI version

of the course, for credit toward their major. [R4-64-E-8-]9].

In August of 1994, the Florida Department of Education

responded to the Department, stating that it could not categorize the

course in philosophy because it belonged in history or political

science. [R4-64-E-Tab 6]. Petitioner received a copy of this decision

and posted numerous copies of it on her office door with derogatory

comments aimed at Buchwalter and Courtwright on the copies. [R2-

8

27-B-10-423; R4-64-E-9-41 1; R5-70-60]. Courtwright reprimanded

Petitioner for this personal attack on her colleagues, and informed

Petitioner that he considered her behavior “rude and uncollegial. . . .”

[R4-64-E-9-911; R2-16-00].

Regarding her criticism of the “Germany Today” course,

Petitioner testified that she “opposed the course being taught under

the PHI designation. . . .” [R5-75-33]. Petitioner’s concern with the

PHI designation of the “Germany Today” course was rooted in her

personal belief that more “meat and potatoes” philosophy courses

should be the focus of the Department’s curriculum. [R4-64-E-8-4 10].

In a letter to Radonovich on March 3, 1994, Petitioner wrote:

As we discussed, too many courses are being neglected

for the German history/philosophy and Japanese/

Buddhism courses our specialists enjoy teaching so much.

If you notice I and Fenner (as well as Bob) held down the

department these last few years by teaching a lot of basic

stuff... .

[R4-64-E-Tab 5]. Schafer was not at the University when the State

issued its decision, or when Petitioner posted numerous copies of the

decision. [R5-71-103].

3. Feminism Under Fire.

Petitioner also claims that she was retaliated against because of

her book, Feminism Under Fire. [R3-31-3-]6]. In fact, in his 1993

Chair’s commentary, Courtwright specifically noted Petitioner’s

scholarship contributions in her writing of this book. [R1-15-DD-2].

Notably, Petitioner was given favorable credit in the area of scholarship

by both Schafer and Courtwright in their promotion and tenure

recommendations because of Feminism Under Fire. [R1-16-F-1,2;

R2-27-B-8-{21].

4. Petitioner’s Application for Promotion and Tenure.

The record in this case reflects that numerous problems existed

which strongly supported the denial of both promotion and tenure to

Petitioner. To achieve promotion to Associate Professor, a candidate

must be:

Sh a BIN el ns Hi Re Sie

9

a) excellent in teaching, excellent in scholarship, and

demonstrate continuing meaningful contributions in

service; or b) excellent in teaching, excellent in service,

and demonstrate continuing competence in scholarship.

[R2-27-A-Tab 5-22]. To achieve tenure, a candidate must:

demonstrate excellent teaching, continuing competent

scholarship, and continuing meaningful service during the

course of his or her tenure-earning interval.

[R2-27-A-Tab 5-24]. An individual seeking promotion or tenure is

evaluated on the basis of his or her entire term at the University. [R2-

27-A-Tab 5-26].

A department chairperson is responsible for making a promotion

and tenure recommendation to the dean of his college, in this case,

the College of Arts and Sciences. [R2-27-A-Tab 5-31]. In reaching

that recommendation, the chairperson gives consideration to the

recommendation of his department’s promotion and tenure committee,

which is composed of approximately a dozen faculty members, each

of whom individually reviews the candidate and casts a secret vote.

[R2-27-A-Tab 5-31]. The dean, having received from the department

chairperson a recommendation on a candidate (irrespective of whether

in favor of or against granting tenure), is then responsible for making

a recommendation to the University Provost and Vice President of

Academic Affairs. [R2-27-A-Tab 5-32]. The University Promotion

& Tenure Committee also makes an independent recommendation

regarding the candidate. [R2-27-A-Tab 5-32]. The Provost and Vice

President of Academic Affairs then undertakes yet another level of

independent review before making a recommendation to the President

of the University. [R2-27-A-Tab 5-32,33]. The President, exercising

one more independent level of review, makes favorable

recommendations to the Board of Regents. [R2-27-A-Tab 5-34]. The

Board of Regents retains ultimate authority on all tenure decisions.

[R2-27-A-Tab 5-34].

During her time at the University, Petitioner actually applied for

tenure twice. Petitioner first became eligible for tenure during her

fourth year of employment (1994-1995), but she elected to defer her

10

candidacy for promotion and tenure to the following year. [R2-27-A-

3-412]. In her fifth year of employment (1995-1996), she submitted

her application for promotion and tenure, but then voluntarily

withdrew her candidacy prior to her application reaching the final

decision-making level. [R2-27-A-3-413]. Schafer was the Department

Chairperson during Petitioner’s second and final candidacy for

promotion and tenure during academic year 1996-1997. [R2-27-A-

3-14].

The following is a chart setting forth the decisions, at the six

independent levels of review, on Petitioner’s candidacy for promotion

and tenure in her last year of eligibility:

| Promotion/ Dept. Chair | Dean) U. Provost | Pres.

_ Tenure Cmte. | Rec. | Rec. |Committee| Rec. Rec.

| Rec. Rec.

| Tenure 0-yes | no no |0-yes no }no |

| 9-no 8-no |

| | 3-abstain |

| Promotion | l-yes | no no /|0-yes no no |

| 11-no 8-no

| 2-abstain |

[R2-27-A-3-914; R2-27-A-Tab 3; R1-16-L; R1-16-M; R1-16-Q; R1-

16-R].

Courtwright participated in the review of Petitioner’s application

for promotion and tenure as a Department faculty member and as a

member of the University Promotion and Tenure Committee. [R2-

27-B-5-417]. Courtwright voted against both promotion and tenure

after considering Petitioner’s entire employment history with the

University. [R2-27-B-5-417,18; R1-16-U]. According to Courtwright,

his recommendations against promotion and tenure were based upon

many factors, including Petitioner’s non-attendance at important

departmental and Faculty Association meetings, her failure to meet

deadlines for the completion of projects, and her refusal to follow

University and departmental policies and procedures, such as the

requirement that SIRs be used to evaluate teaching effectiveness.

11

{R2-27-B-6,7-419; R1-16-U]. In his letter recommending against

promotion and tenure for Petitioner, Courtwright noted the problems

with Petitioner’s service to the Department, as well as her problems

with demonstrating excellence in her teaching through the SIRs. [R1-

16-U]. Courtwright did not vote against Petitioner in the area of

scholarship. [R2-27-B-8-{21].

Schafer voted against a grant of promotion or tenure to Petitioner,

and the reasons for his decision included Petitioner’s overall serious

absenteeism record for departmental meetings, her refusal to follow

policies (e.g., completion of SIRs, canceling classes without proper

notice), and her refusal to participate in committee functions. [R2-

27-A-8-430; R2-27-A-Tab 2]. Specifically, Schafer noted in his

recommendation against promotion and tenure that Petitioner’s

excellence in teaching had not been demonstrated, based upon her

low rate of return of SIR evaluations.” [R2-27-A-Tab 2-1,2]. Schafer

also noted that Petitioner failed to meet the minimum standard of

continuing meaningful service, and that Petitioner’s overall record

was that of negative service to the Department. [R2-27-A-Tab 2-2].

Schafer did give Petitioner credit for achieving the required

scholarship because of her book, Feminism Under Fire. [R2-27-A-

Tab.2-3].’

2. Further, Petitioner’s sporadic administration of the SIRs confirmed

her colleagues’ doubts about her unwillingness to follow University procedures,

a fact which reflected negatively on Petitioner in the area of service. [R2-27-

B-6,7-99; R2-27-A-8-30].

3. Courtwright and Schafer also direct the Court to the letters submitted

by Petitioner’s colleagues regarding her candidacy for promotion and tenure.

[R1-16-W; R1-16-X; R1-16-Y; R1-16-HH; R1-16-II; R1-16-JJ; R1-16-KK;

R1-16-LL]. a

12

REASONS FOR DENYING THE WRIT

I. THE PETITION SHOULD BE DENIED BECAUSE THE

OPINION OF THE UNITED STATES DISTRICT COURT

DOES NOT CONFLICT WITH THE FIRST AMENDMENT OR

THE ACADEMIC FREEDOMS IT PROTECTS

Although Petitioner has asserted in her Petition for Writ of

Certiorari that the district court’s opinion, below, is in conflict with

the First Amendment to the Constitution of the United States,

Respondents were surprised to discover that nowhere in her Petition

does Petitioner identify the nature of this conflict. Notwithstanding

her eloquent rhetoric about societal gadflies, or her self-aggrandized

comparisons to Martin Luther King and Socrates, it would appear

that Petitioner's entire argument that the opinion of the district court

is contrary to the First Amendment is premised upon the following

question which she both poses and answers:

... One must ask why there is now such a conspicuous

lack of cases in which employees of [state educational]

institutions have been given favorable judgments? I offer

the lack of support from th[e United States Supreme] Court

as the prima facie reason why this writ ought to be taken

seriously.

See Petition for Writ of Certiorari at p. 5. Respondents do not share

Petitioner’s misguided belief that this Court fails to support employees

of state educational institutions with respect to First Amendment

challenges; however, even assuming for the sake of argument that

such support is lacking, this fact is inconsequential. Simply stated,

any lack of support by this Court for employees of state educational

institutions in free speech cases does not, a fortiori, demonstrate the

existence of a conflict between the district court’s opinion, below,

and the First Amendment.

As a party seeking certiorari review, the burden of establishing

such a conflict falls squarely on Petitioner’s shoulders. A review of

this portion of Petitioner’s brief, however, reveals that it is wholly

devoid of any showing that the district court, below, issued an opinion

that is in conflict with the First Amendment. Quite the contrary,

13

Petitioner, in her brief, focuses her attack on the opinions of this

Court in Pickering v. Board of Education, 391 U.S. 563 (1968), Perry

v. Sinderman, 408 U.S. 593 (1972) and Connick v. Myers, 461 U.S.

138 (1983), as opposed to the opinion of the district court. Jd.

As this Court has repeatedly observed, the First Amendment does

not guarantee absolute freedom of speech. See e.g., Board of County

Commissioners of Waubansee County v. Umbehr, 518 U.S. 668, 675

(1996); Connick, 461 U.S. at 146. To the contrary, the First

Amendment’s guarantee of freedom of speech is limited and only

protects governmental employees from adverse personnel action when

their speech addresses matters of public concern. /d. While Petitioner

may not agree with the manner in which this Court has determined

the applicability of the First Amendment’s protections with respect

to the exercise of free speech by faculty employed by public

educational institutions, this fact alone, is no basis for granting her

request for certiorari review. Because Petitioner has wholly failed to

provide any showing that the district court’s award of summary

judgment is in conflict with either the letter or spirit of the First

Amendment, her argument in this regard establishes no valid or viable

basis for certiorari review by this Court.

Il. THE PETITION SHOULD BE DENIED BECAUSE THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT ACTED IN ACCORDANCE WITHITS

OWN RULES AND BECAUSE ITS AFFIRMANCE OF THE

DISTRICT COURT’S RULING IS CONSISTENT WITH THIS

COURT’S PRIOR RULINGS AND DOES NOT CONFLICT

WITH DECISIONS OF THE SECOND AND EIGHTH

CIRCUITS

In her second argument in support of why her Petition should be

granted, Petitioner challenges the propriety of Eleventh Circuit's

per curiam affirmance of the district court’s award of summary

judgment in favor of Respondents without rendering a written opinion.

In the heading to this particular argument in her brief, Petitioner

references Rule 36-1 of the Rules of the United States Court of Appeals

for the Eleventh Circuit and then argues:

14

The judgment of the district court was based on a finding

of fact that was not clearly erroneous, unless the

presumption was made that nothing the appellant said was

true.

Summary Judgment was not supported by the record

because the court should not give summary judgment

“unless it appears beyond doubt that the plaintiff can prove

no set of facts ir support of his claim [that] would entitle

him to relief.”

See Petition for Writ of Certiorari at p. 6 (citations omitted). Although

Petitioner's skeletal arguments are somewhat confusing, it would

appear that based upon the foregoing passages, Petitioner believes

that the issuance of a per curiam affirmance without a written opinion

in the appeal below was improper, because either: (1) the district

court’s findings of fact were clearly erroneous; or (2) the district court

could not support its award of summary judgment based upon the

record below. Respondents assert that either argument is without

merit.

Clearly, the Eleventh Circuit acted appropriately in affirming the

district court’s award for summary judgment without rendering a

written opinion. The Eleventh Circuit’s authority to issue per curiam

decisions without accompanying written opinions is set forth in |

Eleventh Circuit Rule 36-1, which provides: |

When the court determines that any of the following

circumstances exist:

(a) judgment of the district court is based on findings of

fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is sufficient;

(c) the order of an administrative agency is supported by

substantial competent evidence on the record as a

whole;

————

15

(d) summary judgment, directed verdict, or judgment on

the pleadings is supported by the record;

(e) judgment has been entered without a reversible error

of law; ‘

and an opinion would have no precedential value, the

judgment or order may be affirmed or enforced without

opinion.

See 11th Cir. R. 36-1. While the Eleventh Circuit’s per curiam

affirmance does not specify which of the grounds set forth in Rule

36-1 it relied on, given the fact that awards of summary judgment are

subject to a de novo (as opposed to a clearly erroneous) standard of

review, it is obvious that the Eleventh Circuit relied on Rule 36-1(d).

See e.g., Adams v. Poag, 61 F.3d 1537, 1542 (11th Cir. 1995); and

Cox v. U.S. Steel, 17 F.3d 1386,1395-1396 (11th Cir. 1994),

In attacking the applicability of Rule 36-1(d), Petitioner makes

the conclusory and circular assertion that

[s}ummary judgment was not supported by the record

because the court should not give summary judgment

“unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim [that] would entitle

him to relief [(citations omitted)].”

See Petition for Writ of Certiorari at p. 6. Respondents do not quibble

with Petitioner about the proper standard for an award of summary

judgment. Rather, Respondents point out that the district court, in

applying this standard to the existing record evidence below,

specifically determined that summary judgment in favor of

Respondents was warranted because: “[e]ven accepting [Petitioner’s]

claims as true and deciding that [Petitioner] was treated unfairly would

not give [Petitioner] redress in [that] [cJourt.” See Appendix A to

Petition for Writ of Certiorari at p 10a. Because Petitioner’s brief is

utterly devoid of any showing that the district court’s award of

summary judgment was not supported by the record below, her

assertion that the Eleventh Circuit’s per curiam affirmance of the

district court’s award of summary judgment was in error, is without

merit and doomed to fail.

16

Undaunted by the sheer mountain of record evidence relied upon

by the district court in awarding summary judgment, Petitioner argues

that the Eleventh Circuit's per curiam affirmance of such an award is

in conflict with the opinions rendered by the Second and Eighth

Circuits. However, a comparison of the district court’s opinion with

similar opinions issued by the Second and Eighth Circuits

demonstrates that this is not the case. Based upon the record evidence

below, the district court found that Petitioner’s speech involved

personal grievances and/or matters raised by an employee related to

the administration of the University, as opposed to matters of genuine

public concern. See Appendix A to Petition for Writ of Certiorari at

pp. 7a-10a. In reaching this conclusion, the district court correctly

observed that when attempting to determine if an employee's speech

addresses a matter of public concern:

Courts “consider whether the speech at issue was made

primarily in the employee’s role as a citizen, or primarily

in the role of employee.” Morgan v. Ford, 6 F.3d 750

(11th Cir. 1993), cert. denied, 512 U.S. 1221, 114 S. Ct.

2708, 129 L.Ed.2d 836 (1994). The “First Amendment

does not require a public office to be run as a roundtable

for employee complaints over internal office affairs.”

Connick v. Myers, 461 U.S. 138, 149, 103 S. Ct. 1684,

1691, 75 L.Ed.2d 708 (1983) In the Eleventh Circuit, a

“public employee may not transform a personal grievance

into a matter of public concern by invoking a supposed

popular interest in the way public institutions are run.”

Ferrara [v. Mills, 781 F.2d 1508,] 1516 [11th Cir. 1986].

Instead to rise to a level of public concern, statements

must be directed “beyond the scope of internal

management.” Kurtz v. Vickery, 855 F.2d 723 (11th Cir.

1988). In the context of an educational setting, “speech

that concerns internal administration of the educational

system and personal grievances will not receive

constitutional protection.” See Maples v. Martin, 858 F.2d

1546, 1552 (11th Cir. 1988).

See Appendix A to Petition for Writ of Certiorari at p. 7a-8a.

<1 nae

PO it -

17

Despite Petitioner’s claims to the contrary, a review of First

Amendment jurisprudence from the Second and Eighth Circuits

reveals that both courts have affirmed judgments for public employers

in free speech cases, under similar facts, after determining that the

speech in question involved employment-related matters or personal

grievances, as opposed to genuine matters of public concern. See

e.g., Lesher v. Reed, 12 F.3d 148, 1151 (8th Cir. 1994) (“A public

employee's personal complaints to his employers, even if they are

about a matter of public interest, do not constitute protected speech”);

Bausworth v. Hazelwood School District, 986 F.2d 1197, 1198 (8th

Cir. 1993) (public school bus driver who spoke out in her capacity as

a public employee and not in her role as a citizen, when repeating a

parent's question to her superior, was not speaking about a matter of

public concern); and White Plains Towing Corporation v. Patterson,

991 F.2d 1049, 1058 (2d Cir. 1993) (“when a public employee speaks

not as a citizen upon matters of public concern, but instead as an

employee on matters only of personal interest, absent most unusual

circumstances, a federal court is not the appropriate forum in which

to review the wisdom of a personnel decision taken by a public agency

allegedly in reaction to the employee’s behavior.”).

Finally, Petitioner cites the decision of Barnhard v. Jackson

County, 43 F.3d 1218 (8th Cir. 1995) for the proposition that “the

issue of ‘whether the public employee’s protected speech played a

substantial role in his or her termination is an issue of fact to be

resolved by a jury.’ ” See Petition for Writ of Certiorari at p. 7.

Petitioner's citation, however, is misleading due to her failure to fully

quote from this opinion. A full review of the Barnhard decision makes

it clear that the issue of whether the employer’s decision to discharge

is substantially motivated by the employee’s speech is only reached

if it is first determined that the speech constitutes a matter of public

concern. 43 F.3d at 1226. In this respect, rather than being in conflict

with the Eleventh Circuit's per curiam affirmance of the district court’s

award of summary judgment, the holding in Barnhard is identical to

the district court’s determination that:

in order for [Petitioner], a public employee, to establish

that her First Amendment rights have been violated by

18

her employer, she must first demonstrate that the content

~ of her expression is of a public concern.

See Appendix A to Petition for Writ of Certiorari at p. 4a and n. 1;

citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (1 Ith Cir.

1989). Notably, this Court has held that the issue of whether speech

is a matter of public concern is an issue of law to be decided by the

courts. See Connick, 461 U.S. at 147. In the present case, since the

district court found, as a matter of law, that Petitioner's speech did

not involve matters of public concern, there was no need for it to

determine if Petitioner's speech played a substantial role in her denial

of promouion and/or tenure.

While the Eighth Circuit’s opinion in Barnhard does state that

the question of whether the employee's speech constituted a

substantial motivating factor in the employer's discharge decision is

“ordinarily” an issue for the jury, the Eighth Circuit nevertheless

concluded:

The discharged employee does not in every case

successfully resist a summary judgment motion merely

by asserting that certain protected speech caused

termination from public employment. At some point, the

speech becomes so remote in time to the discharge that a

court may rule as a matter of law that even if the speech

enjoys First Amendment protection, it played no role in

employee’s termination.

Id., citing O'Connor vy. Chicago Transit Authority, 985 F.2d 1362,

1368 (7th Cir. 1993). Notably, the bulk of Petitioner’s alleged exercise

of her right to free speech (i.e., the Fenner episode and the “Germany

Today” issue) occurred in early-to-mid-1994, several years before

her applications for tenure or promotion were denied. Moreover,

because both Respondents have denied that their decision not to

support Petitioner's applications for tenure and promotion were

motivated by any of her alleged First Amendment-protected activities,

and since Petitioner has not rebutted their denials, the Eleventh Circuit

acted appropriately in affirming the district court’s award of summary

judgment in favor of Respondents.

19

Il. THE PETITION SHOULD BE DENIED BECAUSE THE

OPINION OF THE UNITED STATES DISTRICT COURT IS

IN ACCORDANCE WITH RULINGS PREVIOUSLY MADE

BY THE ELEVENTH CIRCUIT AND IS NOT INCONSISTENT

WITH EITHER PREVIOUS OPINIONS OF THE FIFTH AND

TENTH CIRCUITS OR THIS COURT

In this portion of her brief, Petitioner argues that the district court's

award of summary judgment is inconsistent with previous rulings of

this Court, the Eleventh Circuit, the Fifth Circuit and/or the Tenth

Circuit. Once again, however, careful attention to the facts and record

evidence below, renders Petitioner’s claims baseless.

First, Petitioner asserts that the district court's determination that

her book Feminism Under Fire, did not amount to a matter of public

concern, is contrary to the Eleventh Circuit's ruling in Maples v.

Martin, supra. Petitioner's contention in this regard is without merit.

The district court below stated the following with respect to

Petitioner's book:

... the speech found in chapter 7 of Plaintiff's book,

“Feminism Under Fire” is not the type of speech protected

by the First Amendment because it , too, does not concern

a matter of the public. Quite the contrary, this chapter sets

out in detail Plaintiff's personal account of her dealings

with her Department. As accurately stated by the

Defendants, “Plaintiff has used her book . . . as a vehicle

to promote her purely private interests and to air her

personal grievances.”

See Appendix A to Petition for Writ of Certiorari at p. 9a. As evidenced

in both Respondents’ answer brief and the district court's summary

judgment order, chapter 7 of Petitioner’s book is literally strewn with

commentary showing that the matters discussed therein are of a

personal, as opposed to a public, nature. See Respondent's Answer

Brief at pp. 32-33; Appendix A to Petition for Writ of Certiorari at p.

10a, n. 3. For example, Petitioner begins chapter 7 of her book with

a section entitled “Feminism in the Academy: My Own Case.” [R1-

14-200]. In this section Petitioner states:

el

20

I begin with a few modest personal examples. The first is

an account of how the feminists on my Own campus

reacted to my criticism of professional feminism. The

stories are, of course, only evidentially anecdotal;

nonetheless they tell of what I have confronted in the

“scholarly” community both within and outside my

particular institution.

(R1-14-200]. Similarly, Petitioner, in the final paragraphs of this

chapter opines:

In conclusion, my own experiences with feminists in

academe has not been particularly fulfilling . As a woman

I liken their sisterhood to a bad sorority — one has to

look and think as they do to be accepted. As a philosopher,

the situation is worse. Where feminists are in power —

specific universities or editorial boards — my work and

accomplishments have been ignored.

(Rj -14-223, 224]. Such rhetoric stands in stark contrast to the speech

at issue in Maples v. Martin, where the Eleventh Circuit determined

that professors’ submission of responses (which contained criticism

about the way their department was being run) to a faculty survey

designed to improve Auburn University’s mechanical engineering

department, contained matters of public concern. 858 F.2d at 1553.

Petitioner next asserts that the district court’s finding that the

posting of the State of Florida’s notice with respect to the “Germany

Today” course on her door is contrary to the Fifth Circuit’s decision

in Kaprelian v. Texas Woman's University, 509 F.2d 133 (Sth Cir.

1975). Once again, however, Petitioner distorts the Fifth Circuit's

holding in that case to suit her own needs. The court's decision in

Kaprelian merely held that the First Amendment would be violated

if a public educational institution, or official thereof, refused to permit

an instructor to “voice and apply in his teaching academic views

relevant to assignments actually given him. . . .” 509 F.2d at 138. In

the present circumstance, Petitioner does not contend that

Respondents constrained her ability to voice her academic views

with respect to the courses she taught. As Petitioner did not teach the

ee eee

21

“Germany Today” course, the Fifth Circuit’s holding in Krapelian is

wholly inapplicable. Indeed, Petitioner's claim about the “Germany

Today” course has nothing to do with either the courses she taught

or whether the “Germany Today” course would be taught; it merely

concerns whether the “Germany Today” course would be listed in a

University course catalog as a philosophy course.

In marked contrast to the facts in Kaprelian, Petitioner — an

opponent of the view that the “Germany Today” course should receive

a PHI prefix — placarded her door with copies of the State of Florida’s

determination that the course should more appropriately be

categorized as a history or philosophy course. In so doing, Petitioner

wrote the following derogatory message to her Department Chair on

the State’s determination: “D — wake up and smell the roses — this

dept. needs me and Fenner. We do real philosophy.” [R4-64-E-Tab

6}. As the district court correctly observed below, Petitioner's speech

in this regard was clearly that of an employee concerned about a

matter related to the administration of the University, as opposed to

the speech of a citizen about a matter of public concern. See Appendix

A to Petition for Writ of Certiorari at p. 9a. In so doing, the district

court below noted that the circumstances in Petitioner’s case were

quite analogouS to the Eleventh Circuit’s recent decision in Williams

v. Alabama State University, 979 F. Supp. 1406, 1410 (M.D. Ala.

1997), wherein the Eleventh Circuit determined that a professor's

speech about the content of a textbook related to his employment

and therefore was not a matter of public concern. See Appendix A to

Petition for Writ of Certiorari at p. 9a.

Finally, Petitioner asserts that the district court’s failure to find

that she “whistleblew on members of the Department who made racist

comments . . .” about Fenner is contrary to the opinions of the Tenth

Circuit in Conaway v. Smith, 853 F.2d 789 (10th Cir. 1988) and

Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996). Once again,

however, such an assertion is incorrect. Respondents acknowledge

that Petitioner’s citation to the Tenth Circuit’s opinions in Gardetto

and Conaway is correct to the extent those cases stand for the

proposition that “[s]peech that seeks to expose improper operations

of the government or questions the integrity of governmental officials

clearly concerns vital public interest.” Conaway, 853 F.2d at 796;

[Ee ee

22

and Gardetto, 100 F.3d at 813. However, notwithstanding Petitioner's

conclusory assertions to the contrary, the record evidence reveals that

no such racist comments were at issue in this case.

Moreover, Petitioner’s reliance on the Conaway and Gardetto

cases is misplaced. In both of those cases, the courts stated that:

In deciding how to classify particular speech, courts must

focus on the motive of the speaker and attempt to

determine whether the speech was calculated to redress

personal grievances or whether it had a broader public

purpose.

Id. The record in this case clearly demonstrates that Petitioner's

support of Fenner as a candidate for an Assistant Professor position

at the University was motivated out of personal interest, as opposed

to a public concern.

Furthermore, while Gardetto may at first appear factually similar

to the present circumstances — as one of the issues in that case

concerned an employee’s support of three minority candidates for a

board of trustees position — a close reading of that case clearly reveals

that it is distinguishable. Specifically, the Tenth Circuit in Gardetto

concluded that an employee’s speech in support of three minority

board of trustee candidates rose to the level of a public concern because

of the unique nature of the function of the board of trustees which

determined the nature and extent of educational services available to

the public. 100 F.3d at 813. In rendering this determination, the Tenth

Circuit expressly noted that the board of trustees “is not a committee

charged merely with the administration of internal affairs.” Jd. In

marked contrast to the circumstances in Gardetto, however, the

Petitioner's speech concerning Fenner’s candidacy as an Assistant

Professor was related to her involvement on the Philosophy Search

Committee — i.e., “a committee charged merely with the

administration of internal affairs.” Jd. Accordingly, despite any

apparent similarities to the contrary, Petitioner's speech did not address

matters of public concern, but rather issues related to the

administration of the University.

23

IV. THE UNITED STATES DISTRICT COURT DID NOT ERR

IN GRANTING SUMMARY JUDGMENT TO RESPONDENTS

'n her final argument in support of why her Petition for Writ of

Certiorari shouid be granted, Petitioner asserts that the opinions of

the Eleventh Circuit concerning qualified immunity of government

officials in cases involving First Amendment rights of free speech

conflict with those of the United States Courts of Appeals for the

Fourth and Tenth Circuits. Additionally, Petitioner argues that the

defense of qualified immunity is unavailable to Respondents with

respect to her claims for prospective equitable relief against them in

their official capacities. See Petitioner's Writ of Certiorari at pp. 8-9.

Respondents address each of Petitioner's claims in turn.

The district court’s award of summary judgment was principally

predicated on its finding that Petitioner’s speech did not constitute a

matter of public concern, not upon the doctrine of qualified immunity.

Indeed, the district court only briefly addressed the issue of qualified

immunity in a footnote, stating:

Further, the Court agrees with Defendants Courtwright

and Schafer that — had the case not been dismissed —

they would have been protected in their individual

capacities from claims brought under 42 U.S.C. Section

1983 by the doctrine of qualified immunity because “their

conduct [did] not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Gold v. City of Miami, 121 F.3d 1442, 1445

(11th Cir. 1997).

See Appendix A to Petition for Writ of Certiorari at p. 12a, n.i8.

However, even assuming that the district court principally relied

on the doctrine of qualified immunity in rendering its decision in

favor of Respondents, such a ruling was not improper. As this Court

has noted,

[qJjualified immunity shields government officials from

suit unless their conduct violates a clearly established

constitutional or statutory right of which a reasonable

person would have been aware.

24

Harlow vy. Fitzgerald, 457 U.S. 800, 818 (1982). In order to defeat

the defense of qualified immunity, Petitioner bears the burden of

demonstrating that the law was clearly established at the time the

alleged violations occurred. See Mitchell v. Forsyth, 472 U.S. 511,

528 (1985); see also McDaniel v. Woodard, 886 F.2d 311, 315 (11th

Cir. 1989). Moreover, whether the applicable law was clearly

established at the time of the alleged violation is determined by

reference to decisions of either this Court or the Eleventh Circuit.

See D'Auganno vy. Gallagher, 50 F.3d 877, 881, n.6 (11th Cir. 1995).

Simply stated, decisions of other jurisdictions have no bearing on a

qualified immunity analysis.

In the absence of any Eleventh Circuit or Supreme Court

jurisprudence demonstrating that a reasonable official in Respondents’

positions would have realized that his actions were violative of

Petitioner’s clearly established rights, Respondents are entitled to

qualified immunity from suit. In the present case, Petitioner has

notably failed to bring such controlling case law to the Court's

attention.

In her brief, Petitioner also argues that the defense of qualified

immunity is moot with respect to her official capacity claims against

Respondents for prospective equitable relief. See Petition for Writ

of Certiorari at p. 8. Although Respondents are not quite certain

what Petitioner means when she asserts that such a defense is “moot,”

they nevertheless contend that her ability to make such an argument

is now moot, as she did not raise it in her initial appellate brief, but

instead first raised this argument in her reply brief.* See Petitioner's

reply brief at p. 24. According to Eleventh Circuit Rule 28(c), the

appellant may only file a reply brief in response to the appellee's

answer brief. See 11th Cir. R. 28(c). Since Petitioner did not raise

this issue in her initial brief before the Eleventh Circuit, and since

4. Respondents note that in her reply brief, Petitioner stated that she is

now only interested in injunctive relief, and that as a result, this fact moots

the Respondents’ defense of qualified immunity. See Petitioner's reply brief

at p. 24. Such an assertion is incorrect. The defense of qualified immunity

only applies to individual capacity actions, not official capacity claims. Since

Petitioner still seeks to prosecute individual capacity claims against

Respondents, they fail to see how this defense has been mooted.

25

Respondents did not raise this issue in their answer brief, Petitioner

waived her right to raise this issue. See Taylor v. Freeland & Kronz,

503 U.S. 638, 646 (1992) (absent unusual circumstances, the United

States Supreme Court does not decide questions not properly raised

or resolved in the lower courts).

CONCLUSION

Rule 10 of this Court establishes that certiorari review is not a

matter of right, but of judicial discretion. This Rule further states

that certiorari review will only be granted for “compelling reasons.”

Petitioner has established no compelling reason warranting this

Court's certiorari review of her case. Wherefore, for the foregoing

reasons, Respondents request that Petitioner's Petition for Writ of

Certiorari be denied. Respondents further request that this Court

award them double their reasonable costs associated with the filing

of this brief in opposition, in accordance with Rule 42.2 of the Rules

of the United States Supreme Court.

Respectfully submitted,

Joun F. DickINSON

Counsel of Record

F. DAMON KITCHEN

MALFITANO CAMPBELL & DICKINSON

Attorneys for Respondents

300 West Adams Street, Suite 650

Post Office Box 41099

Jacksonville, Florida 32203

(904) 356-8900