Opposition Brief — Gee v. Humphries

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No. 98-44

In The

Suprene Court of the Anited States

October Term, 1997

GERALD GEE,

Petitioner,

VS.

FREDERICK HUMPHRIES, BISHOP HOLIFIELD, CARRIE GAVIN,

NELLIE WOODRUFF, ROBERT ROLLINS, RICHARD HOGG, JAMES

HEEKIN, JR., ELIZABETH LINDSAY, AUDREA ANDERSON,

JULIAN BENNE?DT, JR., FRANK BROGAN, PAUL CEJAS,

CHARLTON DANIEL, JR., PERLA HANTMAN, GWENDOLYN

MCLIN, JON MOYLE, DENNIS ROSS, STEVEN UHLFELDER,

WELCOM WATSON and CORNELIA SHA’RON JAMES,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS FREDERICK

HUMPHRIES, BISHOP HOLIFIELD, CARRIE GAVIN, NELLIE

WOODRUFF, ROBERT ROLLINS AND RICHARD HOGG

MICHAEL MATTIMORE

MARK E. LEVITT

Counsel of Record

ALLEN, NORTON & BLUE, P.A.

215 South Monroe St., Suite 305

Tallahassee, Florida 32301

(850) 561-3503

Attorneys for Respondents Frederick

Humphries, Bishop Holifield, Carrie

Gavin, Nellie Woodruff, Robert Rollins

and Richard Hogg

(Additional Attorneys on Inside Cover)

ARTHUR C. WALLBERG

Assistant Attorney General

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399-1050

A.D. McKNIGHT

Associate General Counsel

Florida A & M University

Office of the General Counsel

Suite 300 Lee Hall

Tallahassee, Florida 32307

(850) 599-3591

Additional Attorneys for Respondents

Frederick Humphries, Bishop Holifield,

Carrie Gavin, Nellie Woodruff, Robert

Rollins and Richard Hogg

QUESTIONS PRESENTED

The Respondents dispute the appropriateness of the

questions presented by the Petitioner. The questions presented

in this case are more accurately defined as follows:

1. Should the determination of the lower courts be

disturbed, that the University appropriately disciplined an

instructor for offending several students with a racial epithet

(attributing a “nigger mentality” that keeps them on the “back

of the bus forever”) during a pre-class conversation.

2. Should the decision of the lower courts be disturbed,

finding that an employee fails to bring a valid procedural due

process claim in an instance where he was afforded adequate

process and voluntarily bypassed, without good cause,

numerous available internal and external administrative and

judicial processes.

LIST OF PARTIES

The parties to the litigation are:

Plaintiff (Petitioner): GERALD GEE

Defendants (Respondents): FREDERICK HUMPHRIES,

BISHOP HOLIFIELD, CARRIE GAVIN, NELLIE

WOODRUFF, ROBERT ROLLINS, RICHARD HOGG,

JAMES HEEKIN, JR., ELIZABETH LINDSAY, AUDREA

ANDERSON, JULIAN BENNETT, JR., FRANK BROGAN,

PAUL CEJAS, CHARLTON DANIEL, JR., PERLA

HANTMAN, GWENDOLYN MCLIN, JON MOYLE,

DENNIS ROSS, STEVEN UHLFELDER, WELCOM

WATSON, and CORNELIA SHA’RON JAMES

Questions Presented

List of Parties

Relevant Laws

Statement of the Case

‘.

A. This case does not implicate questions of the First

TABLE OF CONTENTS

Petitioner’s Employment History. . .

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The Incident Triggering A Suspension. ......

The Reaction to the Epithets. .....

The University’s Response and Due Process. .

Use of Gee’s Epithet On the University Campus.

OF 2 OSS 28H #9. 6.0 66 SES DS) O-8 Sd Sb eS SS

Amendment and classroom speech.

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iii

Table of Contents

Page

B. There is no conflict in the circuits regarding the

application of the public concern test. ....... 14

C. The Petitioner was on fair notice regarding the

inappropriateness of his conduct. ........... 16

D. There is no conflict among the Circuits regarding

the application of the balancing test. ........ 19

E. There is no conflict among the circuits regarding

the exhaustion of state judicial remedies prior to

bringing a procedural due process claim. .... 20

!. Petition for Writ of Certiorari Previously

Denied Regarding McKinney. .......... 21

2. Facts Of Instant Case Inappropriate For

SEN Re Geran ie ae ree Genie ea cnpare 21

3. McKinney Not In Conflict With Other

CRN. ces chalked aseeucbabasueeeees 23

IE C8 D8 econ 2d a he ah Cie ae allie 30

_—~—

ee ne te

one ae ceot

TABLE OF CITED AUTHORITIES

Cases Cited: Page

Adickes v. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142

So RARE SUEDE op he BE aletie Geli eae enemy ReaD FE 21

Alivoni v. Worcester School Committee, 777 F.2d 776 (1st

Re RMR Bee eee Peeks skeen mh 15

Barkauskie v. Indian River School District, 951 F. Supp.

Pee Sr te EE aa ao bb Fh L bees bei 26

Bell v. City of Demopolis, 86 F.3d 191 (11th Cir. 1996)

ise eke ws Sh eA eee hha his Vaid bkiotete his wins ac 23

Bishop v. Aronov, 926 F.2d 1066 (11th Cir. >|) ae 15

Blum v. Schlegel, 18 F.3d 1005 (2d Cir. 1994) ...... 15

Boring v. The Buncombe County Board of Education,

136 F.3d 364 -(4th Cir, 1998) o.oo kc cccvccccnce 15

Brewster v. The Board of Education of Lynwood Unified

School District, 1998 U.S. App. LEXIS 12768 (9th

RIND: ciiotth eco ie ewe Be eek ay ee Do 15

Brooks v. George County, 84 F.3d 157 (Sth Cir. 1996)

kak 5s Re aaa e Te eh Oe Rea e ESS COR eR awe ook 26

Charchenko vy. City of Stillwater, 47 F.3d 981 (8th Cir.

PRs pide oc aaa es eee nitle cia eatels 27

Cleveland Bd. of Education v. Loudermill, 470 U.S. 532

GEOORD HAS ceva Komen hers atawnks fideo: 29

Table of Cited Authorities

Page

Cohen v. San Bernardino Valley College, 92 F.3d 968

CPU RPE” Ga ioe bs con SPs Reh Lees enaes 18

Connick v. Myers, 461 U.S. 139 (1992) ...... 14, 15, 16, 20

Cotnoir v. University of Maine System, 35 F.3d 6 (lst

Cae SOD da cee ubeucek sek UKs bee see ewer enrs 24

Cushing v. City of Chicago, 3 F.3d 1156 (7th Cir. 1993)

(EMULE ES Ea ay Ae WEN kal TO eke bas 25

Dambrot v. Central Michigan University, 55 F.3d 1177

Cae SE sak bee eee Se uwes kt bee teas 15

Dwyer v. Regan, 177 F.2d 825 (2d Cir. 1985) ....... 24, 25

Dykes v. Southeastern Pa. Truns. Auth., 68 F.3d 1564

(3d Cir. 1995), cert. denied, 116 S. Ct. 1434 (1996)

i Ko OR Re hn eae Gon ae a bce We ee aS 26

Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990) |

EE Re EE ery Pees Wy re POE oe ee ee 25

Faragher v. City of Boca Raton, 118 S. Ct. 2775, 141 L.

ek Ae LIST Fakcasavaakhacvee te avinee ses 17, 19

Ferrara v. Mills, 781 F.2d 1508 (11th Cir. 1986) .... 15

Friedman v. City of Overland, 935 F. Supp. 1015 (E.D.

BD. TOOE Sux ela tee CAS Ue Ne pada nh hE eRe eR 27

vil

Table of Cited Authorities

Page

Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996) ... 15

Gee v. State of Florida Board of Regents, Case No.

96-3741, aff'd, Case No. 97-03061 (Fla. Ist DCA

WEE Sheba te ck bs Lae oaeh eke eee l

Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 16

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) .. 17

Harris v. Bd. of Ed. of City of Atlanta, 105 F.3d 591 (11th

GA HEED, Conds Cash hec uh kus 6 beh en eo

Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985) . 25

Hazelwood School District et al. v. Kuhlmeier, 484 U.S.

Me GEE os a a eect cee ee 15, 19, 20

Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (Ist

Cir. 1987), cert. denied, 486 U.S. 1044 (1988) ... 24

Korf v. Ball State University, 727 F. 2d 1222 (7th Cir.

oso k BREE Eat ee et ei etna th tr ep: Sa 16

Logan v. Zimmerman Brush, Co., 455 U.S. 422 (1982)

ste C6 Nea NE Eee ARES EN DES Rede Sa R GE OE ee 28

Martin v. Parrish, 805 F.2d 583 (Sth Cir. 1986) ..... 15

McDaniels vy. Flick, 59 F.3d 446 (3d Cir. 1995), cert.

denied, 134 L. Ed. 2d 97, 116 S. Ct. 1017 (1996) . 25

vill

Table of Cited Authorities

Page

McDonough v. Trustees of the University System of New

Hampshire, 704 F.2d 780 (ist Cir. 1983) ........ 14

McKinney v Pate, 20 F.3d 1550 (11th Cir. 1994), cert.

GONANE, FES Wis BAe COD ahha bob 2 4sedsskae eens

Citvccduxusiedeaas 20, 21, 23, 24, 25, 2%, 27, 28, 29, DW

Miles v. Denver Public Schools, 944 F.2d 773 (10th Cir.

SOUS Dvn Kwad CoeSawecbadadbde oeeuse we baee ne 20

Moore v. Board of Education of Johnson City, 134 F.3d

PEL COR Ce TU aise ck Gratiot 26, 27

Myers v. Town of Landis, 957 F. Supp. 762 (M.D. N.C.

FROG) kkk sino k caked pa hes Oe aa wae 26

NLRB vy. Sears Roebuck & Co., 421 U.S. 132, 44 L. Ed.

r Pw Eh een ey ore rT pyr ree Pere Pee eee 21

Parratt v. Taylor, 451 U.S. 527 (1981) .... 23, 24, 26, 28, 29

Pickering v. Board of Education of Township High School

District, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d

et CRED. £44 44 Oa ReN HG RAR Se Geeks is 14, 15, 19, 20

Plumer v. Maryland, 915 F.2d 927 (4th Cir. 1991) .. 25

Ramsey v. United Mine Workers, 401 U.S. 302, 28 L.

Ei) ery ree ae Umer nen mare na tee ee 21

Reinhart v. City of Maryland Heights, 930 F. Supp. 410

CREP, SR THE es whe hes Goks oka bn kd be Cea 27

Table of Cited Authorities

Page

Roe v. Antle, 964 F. Supp. 1522 (D. N.M. 1997) ..... 26

Schiller v. Moore, 30 F.3d 1281 (10th Cir. 1994) .... 15

Stana v. School District of City of Pittsburgh, 775 F.2d

Ee Os SOE cob EAC Lake keel 25

Tinney v. Shores, 77 F.3d 378 (11th Cir. 1996) ...... 23, 24

Tri County Industries, Inc. v. District of Columbia, 104

Fane ee a GO SOOR eo ke iid caean auc kwn ve 27, 28

Ward v. Hickey, 996 F.2d 448 (ist Cir. 1993) ..... 15, 16, 19

Waters v. Churchill, 511 U.S. 661, 128 L. Ed. 2d 684,

ee ec BOO oo AV bes bin scaled 14, 16

Winters v. Board of County Commissioners of Osage

County, 4 F.3d 848 (10th Cir. 1993) ............. 25

Zinermon v. Burch, 494 U.S. 113 (1990) ........... 29

Statutes Cited:

Se EO ete eee rie ee ee irs l

Florida Administrative Code § 6C3-10.125 ......... 1, 9, 22

Florida Administrative Code § 6C3-10.125(8)(b) .... 22

Table of Cited Authorities

Page

Florida Arbitration Code, Chapter 682 ............. 13

DORON ERs es CO Us. i oe EN os wes 22 .

Section 190.5700), Ma SHE oko ies 10 |

POCTOR THees FO GUS kee es cbkdcen teases 13

United States Constitution Cited:

United States Constitution, Amendment! ...... 1, 12, 13, 14

United States Constitution, Amendment XIV ........ l

Other Authority Cited:

J. Peter Byrne, Racial Insults and Free Speech Within

the University, 79 Georgetown L.J. 399, 420 ..... 17

APPENDIX

Appendix A — Letter From Hawkins To Gee Dated

EN ee vec a cece

Appendix B — Memorandum From Gee To Hawkins

erated September 10, 1993 0.0... 6 ccc cc ecu.

Appendix C — Memorandum From Gee To Ruggles

ated September 20, 1993 ..............000..

Appendix D — Letter From Members Of The Class To

Hawkins Dated September 22, 1993 ............

Appendix E — Memorandum From Gee To Hawkins

ated September 24, 1993 ....................

Appendix F — Memorandum From Gee To Ruggles

ated September 24, 1993 ....................

Appendix G — Memorandum From Gee To All Students

In PUR 40001-001 Dated September 24, 1993 ....

Appendix H — Memorandum From Gee To Hawkins And

Ruggles Dated September 27, 1993 .............

Page

15a

24a

26a

]

OPINION BELOW

The Opinion Below is a Per Curiam Affirmance by the United

States Court of Appeals for the Eleventh Circuit.

The Petitioner voluntarily dismissed with prejudice his equal

protection claim in federal court and thereafter pursued an

unsuccessful lawsuit in state court arising out of these same

facts. Gee v. State of Florida Board of Regents, Case No. 96-

3741 (judgment for defendants), aff’d Case No. 97-03061 (Fla.

Ist DCA 1998).

STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

RELEVANT LAWS

United States Constitution, Amendment I.

United States Constitution, Amendment XIV.

Florida Administrative Code § 6C3-10.125.

Provisions are set forth in Appendix D of the Petition

for Writ of Certiorari.

STATEMENT OF THE CASE

This case concerns the propriety of the University imposing

an eight day suspension on a faculty member for using an insulting

racial slur to students. Petitioner, a public relations instructor,

overheard two African American students complaining before class

about his department’s failure to provide them practical

Opportunities to use their public relations training. Petitioner

responded that such complaint could be construed as a “nigger

mentality” that keeps them on the “back of the bus forever.” His

purposes for using this speech were to insult the students as poorly

motivated or too lazy to solve this problem; and to silence their

complaining, which implicated his own inattention to this problem,

so that class could begin. Instead of calming the students down,

this insulting speech caused an extended controversy among

students that impaired Petitioner’s effectiveness as a teacher and

created doubts about his impartiality toward complaining students.

Petitioner later acknowledged that some disciplinary action was

appropriate for this mistake in judgment. He elected not to protest

the suspension under available administrative or state law

procedures. The lower courts found that this case presented no

substantial constitutional issue of either academic free speech or

procedural due process.

A. Petitioner’s Employment History.

The Petitioner was employed by Florida A & M University

in 1977 with the express understanding that he would attain his

doctoral degree. (R6-171, Exh. A, p. 423; Exh. D, pp. 31, 42-5,

48, 135, 138).' After the passage of six years, the Petitioner had

failed to attain his terminal degree and failed to meet the

requirements for tenure. (Pp. 156-7, 204, 268-70, 383, 385, 423;

Exh. D, pp. 31, 43-5, 48, 138; Exhs. 22, 23). The Petitioner was

removed from the tenure track and allowed to continue to teach in

the position of a contractual instructor. As such, he did not have a

right of continuing employment beyond the term of his nine month

contract.

In 1989, the Petitioner requested that he be allowed to resume

the tenure track. His request was granted with the understanding

that he remain an annual contract employee, with no expectation

of continued employment, and that he would have to attain tenure

within six years or reiinquish employment at the University. (Pp.

408, 481-2; Exh. D, pp. 88-9). The Petitioner neither attained his

terminal degree nor demonstrated the performance required for

tenure. (Pp. 408, 481-2; Exh. D, pp. 88-9). The Petitioner conceded

that he was losing his enthusiasm for teaching and that an

acrimonious divorce and other personal problems were seriously

1. Inthe summary judgment granted to the Defendants the facts were

construed most favorably to Petitioner/Plaintiff, as they also were in the

District Court. It is noteworthy, however, that the most relevant facts cannot

be disputed since they were furnished in the Petitioner’s own statements,

writings, and explanations. Unless designated otherwise, all page references

in this section will be to R6-171, Exhibit A, the sworn deposition testimony

of the Petitioner and exhibits to the deposition.

Baas Siehaioant

A Pitta,

affecting his productivity and attitude. (Pp. 156-7, 204, 215, 224-

5, 268-70). His Dean urged that he seek medical and

psychological assistance. (Pp. 56-7; Exh. 7; Exh. L). Gee exhibited

a loss of weight, reported experimentation with drugs and

complained how personal problems effected his work. (Exh. P).

As the Petitioner approached the deadline for consideration

of his application for tenure, he was advised by Robert Ruggles,

the Dean of the School of Journalism, Media and Graphic Arts

and by his Division Director that his tenure chances were remote.

(Pp. 95, 407; Exh. 22). The Petitioner was told that unless he had

engaged in activities that had not yet been brought to the attention

of the School (i.e., initiation of new programs or service and

research in his area of expertise), he would not be considered as

qualified for tenure. (Pp. 95, 408; Exh. 22). This admonition was

critical as the Petitioner had not engaged in the type of service or

research required for tenure and knew that he would not be able

to supplement his credentials or accomplishments. (Pp. 95, 97-

8). (Appendix A).

The Petitioner’s poor prospects for tenure provoked him to

engage in a campaign of antagonistic memoranda, blaming his

lack of productivity and service upon his supervisors. (Appendix

B). On September 20, 1993, a few hours prior to the start of class,

the Petitioner authored an angry memorandum attacking the Dean

and Division Director. (Appendix C).

Shortly thereafter, the Petitioner went to his class on Public

Relations Class Studies. He arrived several minutes early and as

he entered the classroom, overheard two or three students engaged

in conversation. (Pp. 91-2, 103-4, 119, 126). The Petitioner did

not focus upon the conversation and cannot recall the remarks

being made by the students. (Pp. 104, 110). At one point he

overheard two students, Marlon Flanigan and Derick Austin,

express how they would like to participate in a student operated

public relations office. This is the type of extra-curricula activity

provided by the faculty of other disciplines. (Pp. 67, 105-8, 110-

11, 113-19, 124, 128-9; Exh B, pp. 7-9). At no time did any of

the students raise an issue involving race or race relations.

B. The Incident Triggering A Suspension.

As one of only two public relations faculty members, the

Petitioner realized that Austin and Flanigan were voicing a concern

that reflected upon his own lack of productivity and initiative and

an echo of the evaluative criticism raised by the Dean and the

Division Director. A few years earlier, Petitioner was involved in

preliminary organizational efforts to form a student public relations

office, but had allowed the project to die due to a lack of

perseverance. (Pp. 61-67, Exh. 10). The Petitioner intended to

stop the conversation between Flanigan and Austin and to begin

class:

A (Gee). I was concerned that most everybody had

arrived now, and it was time to start taking up

the material that we were supposed to do,

because that class only met once a week for a

semester. And so time was important to us.

* x *

Q_ I know, sir. But my question is this .. . did you

want Mr. Flanigan and Mr. Austin’s comments

to cease and move on to something else?

A Yes, yes. I wanted us now to move from that

discussion into what we needed to talk about

that night in terms oi the course, the material.

(Pp. 111, 119, 126, 177-9).

He then stated:

Now I’m going to say something which may upset

some of you, because I’m going to use a term that I,

myself, consider offensive. What I’m about to say is

not directed at any of you, or all of you as a class,

it’s just something I want you to think about

What I want you to be aware of is that in this day and

age, a person can’t sit around waiting for someone to

;

give them something. Anyone who doesn’t take

advantage of the opportunities that are there, or who

doesn’t make opportunities for themselves may be

guilty of having what some would call a nigger

mentality — the sort of thinking that can keep us all

on the back of the bus forever.

(R1-23, J 16; Pp. 126, 128-9, 133). (Exhibit D).

C. The Reaction to the Epithets.

The class reacted with shock, disbelief, and disappointment.

(Pp. 110, 180-1, 184-5, 209; Exh. B, pp. 17,23). Students left the

classroom while other placed their heads on their desks. (P. 180:

Exh. B, p. 17). One student in the class, Chamane Kennedy reacted

as follows:

Are you looking at all our faces right now and

realizing we’re in shock? Can you please say

something to let me know that you did not mean to

offend myself and probably others. I raised my hand

and I said, “I don’t mean to be rude but you have

offended me and you have probably offended other

students in this class.”

(R6-171, Exh. S; Exh. 40, interview of Chamane Kennedy,

p. 4).

The Petitioner conceded that he has never heard Austin,

Flanigan or any other person in attendance use the epithets “nigger”

or “nigger mentality.” Further, the Petitioner cannot identify the

use of the epithet on campus in the context in which he used the

word; namely serving to describe the audience and used to silence

or to “motivate” the audience.

Although the remarks did not reflect the name of a particular

student in the class who was purportedly exemplifying a “nigger

mentality,” the comments were directed at the two students who

were expressing desires for a student-run public relations office;

namely Austin and Flanigan. (Pp. 111, 128-9, 309). In testimony,

the Petitioner conceded that he “doubted” that he would have

referred to “nigger mentality,” had he not heard Flanigan’s and

Austin’s remarks. (P. 133). In subsequent memoranda, the

Petitioner described his intention as a response to the overheard

conversation and, “to make a point in their own idiom, to motivate.”

(R6-171, Exh. 32).

It is clear that the Petitioner’s use of the phrase “nigger

mentality” was not a comment on race relations. The Petitioner

unequivocally testified that he would have made the same statement

in reference to Caucasians or to a group of Caucasians. (Pp. 133-

134).

Furthermore, regarding the reference to the back of the bus,

the Petitioner admits that neither he nor his ancestors were ever

required to ride on the back of a bus or otherwise face oppressive

racial discrimination. (Pp. 171-3). The Petitioner does recall riding

segregated buses as a child and young man, but in those instances

he rode at the front. (Pp. 171-2).

The students were so upset by these intemperate remarks that

several authored a complaint delivered to the Division Director

which stated in part:

We feel his comment was derogatory, unethical and

most importantly, inappropriate . . . To say the least,

we are appalled and outraged that he could stand in

front of our class and so blatantly disregard the fact

that we as African-Americans are extremely sensitive

to the use of racially derogatory terms of any kind.

We find his action, in any context, not only racially

charged, but extremely unprofessional.

(Exh. 29). Students were particularly offended by the Petitioner’s

reference to segregation. As one student, Lisa Atkinson, expressed:

Offense does not begin to describe what I felt. First

of all, he never said that he was about to make a

racially derogatory statement that would attempt to

lessen the struggles of the mind-set of an oppressed

people. Nor did he state that he was about to offend

my parents, grandparents, aunts, and uncles who for

sit tees gee neti

sO many years rode the back of the bus, not because

of their nigger-thinking, whatever that really means,

but because of those in power who thought that

Blacks were inferior and deserved nothing but

inferior service.

(Exh. 24).

Upon observing the reaction of the listeners, the Petitioner

realized that he had made a “grievous mistake” and admitted that

the statement was racially charged and offensive. (P. 222; Exhs.

27, 32). Two days after the event, on September 22, 1993, the

Petitioner was provided with a copy of the students’ complaint.

(Pp. 185-6, 188-9, 190, 255, 257; Exh. S, Gavin Depo., p. 211;

Exh. 13). He acknowledged that the students were deeply hurt but

appeared primarily concerned with his tenure application and his

ongoing complaints about his supervisors. (Pp. 204, 206, 211;

Exhs. 25, 28, 30, 31- p. 4). (Appendix E). He complained that he

was badly treated by students for filing the complaint, attacked the

Students for not going to the “appropriate offices” to complain

and questioned their motives. (Pp. 193-5, 206, 210-11, 256; Exhs.

25, 26, 31). (Appendix E). The Petitioner agreed to offer a written

apology to the students in the hopes that it would “mollify the

Students and that no further action” would be necessary. (Exh.

25). (Appendix E, F, G, H).

After considering the student’s reaction to his conduct, the

Petitioner became convinced that his effectiveness as a teacher was

“undermined” and that if he could so misjudge the reaction of an

audience, he could no longer teach with confidence. (Pp. 204-6,

212, 247, 249, 250-1; Exhs. 22, 26, 27). He submitted his

resignation and immediately began the process of transferring all

teaching responsibilities and cleaning out his office. (Appendix E,

F, G, H). Upon receipt of his resignation, the Dean and Division

Director met with the Petitioner and persuaded him not to act in

haste. He consented and resumed his class schedule. (Pp. 228;

Exh. S: Exh. 18A).

D. The University’s Response and Due Process.

The Dean of the School of Journalism, Media and Graphic

Arts, inquired into the incident and recommended the imposition

of disciplinary action. (Pp. 220, 279-80; Exh. D, pp. 66-7, 70-3,

91; Exh. G, pp. 47-9, 51, 55). The Petitioner has acknowledged

that the Dean’s recommendation for discipline was “reasonable”

and “appropriate.” (P. 281; Exh. 31-p.4).

Thereafter, an investigation was conducted by the Provost,

Dr. Richard Hogg. (R6-171, Exh. E, pp. 72-3; Exh. G, pp. 47-9,

55, 59). Hogg spoke with the Petitioner, several students and

conferred with the Dean regarding disciplinary action. (R6-171,

Exh. G, pp. 47-9, 51, 56, 70-72, 79, 81-3, 85-6; Exh. S; Exh.

19). The Petitioner told Hogg that the students were to be blamed

for the resulting disruption. Because of the potential for continuing

disruption and a loss of confidence in his ability to teach fairly and

without retaliation against the complainants, Hogg suggested that

the Petitioner be temporarily replaced and disciplined. (R6-171,

Exh. E, p. 74; Exh. G, pp. 99-101; Exh. S; Exh. 22). The Petitioner

acknowledging the potential for continued disruption and suspicion

of retaliation against students, arranged to have another faculty

member grade the tests in his class as a safeguard against allegations

of bias. (Pp. 294-5; Exh. 31, Grow Depo. p. 284).

Hogg’s recommendations and the Dean’s investigatory report

were forwarded to the University President, Dr. Frederick

Humphries, for action. Given that the Petitioner was on a non-

tenured contract, the University was free to not renew his contract

for the following year. The University decided to allow his contract

to expire. (R6-171, Exh. E, pp. 74-8, 115, 119-20; Exh. G, pp.

100-1; Exh. S, p. 128; Exhs. 25, 28; Exh. C, p. 15).

Pursuant to the University’s faculty collective bargaining

agreement, the Petitioner was able to grieve any act of discipline

or any decision regarding tenure through three grievance steps,

culminating in a binding arbitration hearing before a neutral

arbitrator. (Pp. 228-30; Exh. C, pp. 6-7; Exh. F, p. 54; Exh. T).

Accordingly, the Petitioner, represented by an experienced Union

representative, challenged the decision regarding his contract. (Pp.

230-8, 282, 284-8; Exh. C, pp. 10-13; Exh. T). In July 1994, the

Board of Regents (BOR) at Step Two of the grievance process,

reversed precedent and granted the grievance, directing the

University’s Equal Opportunity Programs (EOP) Office to

investigate the Petitioner’s conduct under the processes set forth at

Rule 6C3-10.125, F.A.C. (Rule prohibiting discrimination and

harassment.) (R6-171, Exh. C, p. 16; Exh. S; Exhs. 30, 30(a)).

In accordance with the resolution of the grievance, the EOP

office investigated the students’ complaint. This was not an

investigation of new complaints, but rather an inquiry into the

complaints provided by the students in September 1993. (R6-171,

Exh. S, pp. 137-8; Exhs. 31-4; Exh E, pp. 156-7). The

complainants expressed appreciation to the EOP office for its pursuit

of their concerns. EOP Acting Director, Ms. Carrie Gavin,

interviewed the students, reviewed a written response from the

Petitioner dated September 2, 1994, and reviewed the contents of

the file. (Pp. 298-9, 307; Exh. 32; Exh. S, pp. 137-8, 167, 169;

Exhs. 31-4, 39, 40). Throughout the grievance process and EOP

inquiry, the Petitioner never asserted that he was not forewarned

his actions were prohibited by the anti-discrimination rule.

Consistent with action taken in other instances where an employee

has first violated Rule 6C3-10.125, F.A.C., Gavin recommended

that the President impose a two (2) week suspension. (R6-171,

Exh. S, Exh. 44).

Humphries notified the Petitioner that he was inclined to follow

the Gavin recommendation and advised him that he could seek a

review by the University Personnel Committee (UPC). (R6-171,

Exh. S; Exh. 45). The UPC is comprised of three members of the

administration and serves as an internal, predetermination sounding

board. If unsuccessful before the UPC, the Petitioner could appeal

to Humphries the proposed action and thereafter, if unsuccessful,

could challenge any disciplinary action taken in a formal state

administrative hearing or grieve the matter through binding

arbitration pursuant to the collective bargaining agreement. (P.

303).

On November 22, 1994, the Petitioner requested and received

a predetermination conference before the UPC. (Pp. 315-18; Exh.

H, pp. 34-6). ‘he Petitioner was represented by legal counsel

and was allowed to submit written and oral argument in response

to the charges and to call witnesses. (R6-171, Exh. F, pp. 79-80,

99-100). Given that confidential complaints filed by students were

to be discussed, observers were excused from the meeting. (R6-

171, Exh. C, p. 54; Exh. F, pp. 95-6, 98). The UPC concurred

with the EOP recommendation and forwarded its suggestion to

the President for a final determination as to the action to be taken.

(R6-171, Exh. E; Exh. 57; Exh. H, pp. 44-5).

Humphries met and discussed the charges with the Petitioner.

Humphries concluded that some disciplinary action was appropriate

and elected to proceed with a two (2) week suspension. (R6-171,

Exh. E, p. 214; Exhs. 45, 58, 60). The Petitioner had several

procedural avenues to appeal the suspension, including petitioning

for a formal hearing pursuant to Section 120.57(1), Fla Stat.

(1995), or processing a collective bargaining grievance through

binding arbitration. Although represented by counsel and a Union

official, the Petitioner did not seek a hearing in the state forum nor

did he file a grievance. (P. 315; Exh. C, pp. 33-4, 47-8). (Exhibit

I).

The Petitioner began his suspension in January 1995. On

January 25, 1995, the District Court heard and denied the

Petitioner’s request for a temporary injunction. (R1-16). The Court

set a hearing date to consider a permanent injunction, but, prior to

the hearing date, the University voluntarily abbreviated the

suspension action and resolved any pending issue for the purposes

of an injunction action.

E. Use of Gee’s Epithet On the University Campus.

There is no evidence in the instant record to indicate that any

faculty member, employee, or student of the University used the

epithet “nigger” or “nigger mentality” in a manner similar to the

Petitioner. The suggestion by the Petitioner that racial epithets are

routinely tolerated in conversation at the University is unsupported

by the record. The Petitioner admits to never having heard the

phrase “nigger mentality” spoken on campus prior to or after his

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use of the phrase and cannot identify a single instance of the use

of a racial epithet by any member of his September 20, 1993

audience.

The Petitioner concedes that his use of “nigger mentality” is

unique, but relies upon scant anecdotal evidence to indicate that

on rare occasion and in the appropriate pedagogical context, a

racial epithet may have been read or spoken on campus. Rather

than provide support for the Petitioner, this evidence reflects that

the faculty understands the distinction between using these terms

in some pedagogical context as opposed to its use as an insult.

When used in its appropriate pedagogical context, the phrase may

be acceptable, but when used in casual conversation to offend and

silence student expression, it is not.

Moreover, the Petitioner’s assertions regarding the occasional

use of slurs on campus are irrelevant to the determination of this

case. There is no evidence to indicate that any Respondent was

aware of the purported usage of racial epithets on campus. The

Petitioner raises this apparently irrelevant argument and then

Suggests that it was not the Petitioner’s use of the word “nigger”

that triggered the suspension.

It was the Petitioner’s insulting and offensive reference to certain

individuals having a “nigger mentality” that would keep them on

the “back of the bus,” that triggered the suspension. There was no

legitimate pedagogical purpose for the Petitioner's speech, thus,

the issue of whether the phrase would be tolerated in some other

context is not relevant.

REASONS FOR DENYING THE WRIT |

This case concerns the appropriateness of a disciplinary

Suspension given to an instructor for having used an offensive

racial slur during a pre-class conversation with a few students.

Contrary to the exaggerated gloss placed upon this case by the

Petitioner, it does not implicate issues of academic freedom or free

speech in the classroom. The Petitioner has conceded that his

comments were a “mistake,” that some disciplinary action was

“reasonable,” and that he does not intend to use the phrase “nigger

mentality” in the future. Consequently, there appears to be no

lingering concerns involving the First Amendment. When this

Court addresses an issue of free speech, it must be in the context

of a clearly defined and meaningful dispute. This is not the case

here.

The Petitioner has disavowed his remarks and has professed

that he does not wish to use in the future the phrase “nigger

mentality” that keeps some on the “back of the bus forever.”

Therefore, there is no chilling of his speech. The speech occurred

prior to class and outside of an academic exercise. It is for all

intents and purpose not a free speech case at all. There is no issue

in this case regarding what forms of speech may be regulated during

a classroom lesson.

The Petitioner has acknowledged that some discipline was

“reasonable.” There is no dispute that the epithet used by the

Petitioner during a pre-class conversation offended and distracted

students from their educational mission and was a serious

misjudgment of his audience. Thus, this case turns upon the

appropriateness of the degree of discipline (a suspension or a written

reprimand) rather than the appropriateness of any discipline. The

Petitioner could have, and should have, resolved this matter as a

collective bargaining grievance.

The University provides a setting free from the distractions

of racially offensive conduct and harassment. Rather than provide

effective instruction, the Petitioner offended the constituent students

who pay to attend and to learn.

Shortly after making his remarks, the Petitioner submitted his

own resignation in recognition that his effectiveness as an instructor

was lost. Considering that the Petitioner felt that his conduct

warranted his final separation from his teaching position, the

suspension action on appeal represents a lesser form of a discipline

than what the Petitioner would have self-imposed.

Alternatively, the Petitioner raises an issue regarding the

granting of summary judgment against his procedural due process

claim. The record is clear that the Petitioner was fully afforded a

plethora of due process to challenge his suspension. The Petitioner

had access to several avenues of procedures within the State

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University System, including a grievance procedure culminating

in a neutral arbitration or an administrative proceeding before a

neutral judge with the right of appeal through the Courts of Florida.

He also enjoyed several state judicial avenues of relief, including

the Florida Arbitration Code, Chapter 682, Fla. Stat. and, the ri ght

to appeal the University’s Final Order to the Florida District Courts

of Appeal. See Section 120.68, Fla. Stat. In spite of having legal

and union representation, the Petitioner abandoned these processes

and elected to proceed directly to the United States District Cour:

with his free speech claims. In doing so, the Petitioner prematurely

bypassed the University’s own grievance System without

explanation and without just cause. The Petitioner did not proceed

to a final decision of the State University System before

commencing his action in federal court. Although the Petitioner

may proceed in federal forum with a First Amendment claim, he

cannot ignore the processes available to him, and then complain

that procedural due process was inadequate.

The courts below correctly determined that the Petitioner

should not be permitted to prematurely and without cause simply

ignore internal processes for the redress of grievances, and thereafter

attack the system for a purported failure to provide such process.

A. This case does not implicate questions of the First

Amendment and classroom speech.

The Petitioner urges the Court to consider this case for the

purposes of clarifying the balance of academic freedom and the

right of the employer to prevent racial insults against students.

The facts of this case fail to raise the issue as framed by the Petition.

The Petitioner was not involved in a classroom exercise, pedagogical

speech or an expression of learning when he spoke of the “nigger

mentality” that was responsible for keeping the listeners on the

“back of the bus forever.” These comments were made during a

conversation conducted prior to class, in response to the comments

of two students. By interjecting his statements into their

conversation, the Petitioner was not attempting to teach his course

or otherwise carry out an academic activity. He described his

purpose as an effort to motivate the listener (to initiate a extra-

curriculum activity) and to silence a conversation between students

so class could begin.

Given that the Petitioner’s comments were made in a pre-

class conversation and not in the context of a classroom lesson,

the reasoning set forth in Connick v. Myers, 461 U.S. 139 (1992),

applies. The protection of speech by a public employee should

not be elevated simply because the place of employment is a school.

See Pickering v. Board of Education of Township High School

District, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968);

Waters v. Churchill, 511 U.S. 661, 128 L. Ed. 2d 684, 114 S. Ct.

1878 (1994). Nor do public employees enjoy a higher standard of

protection for speech because they are at other times engaged in

pedagogical conduct. The Petitioner’s remarks were made prior to

the commencement of class and unrelated to the course content.

The coincidence that the conversation occurred while the Petitioner

and a few students were waiting for the commencement of class

does not render the conduct a pedagogical exercise.

The Petitioner's remarks are accurately characterized as speech,

by an educator, made outside of a pedagogical context. This Court

has clearly recognized the applicability of the “public concern”

test to the speech of educators conversing outside of the conduct

of their course. See Pickering v. Board of Education, 391 U.S.

563 (1968). The circuits do not require guidance on this issue.

The Pickering decision and its progeny have served well for three

decades.

B. There is no conflict in the circuits regarding the

application of the public concern test.

There is no conflict among the circuits regarding the

application of the public concern test to the speech of educators.

The circuits have consistently applied the principles of Pickering

v. Board of Education and Connick v. Myers to First Amendment

cases arising in an educational context. Specifically, the First, Sixth

and Tenth Circuits have applied the Pickering Balancing test to

an educator’s First Amendment free speech claim. See McDonough

v. Trustees of the University System of New Hampshire, 704 F.2d

780 (1st Cir. 1983) (applied Pickering “public concern” test to

SS Eee

situation where college professor was terminated for espousing

his views that capitalists exploit others); Alivoni v. Worcester School

Committee, 777 F.2d 776 (ist Cir. 1985) (applied Connick and

the “public concern” test to situation where teacher was disciplined

for classroom-related speech); Gardetto v. Mason, 100 F.3d 803

(10th Cir. 1996) (applied Connick and the “public concern” test to

situation where public school employee was suspended for making

comments); Schiller v. Moore, 30 F.3d 1281 (10th Cir. 1994)

(applied Pickering “public concern” test to situation where public

school employee resigned after making comments regarding Board

policy); Dambrot v. Central Michigan University, 55 F.3d 1177

(6th Cir. 1995) (applied Pickering “public concern” test to facts

similar to instant matter where public school employee —

basketball coach — was discharged for making comments about

the need for more “niggers”).

Moreover, the Second, Fourth, Fifth, Ninth and Eleventh

Circuits have similarly applied the Pickering balancing test. See

Blum v. Schlegel, 18 F.3d 1005 (2d Cir. 1994) (discussed infra);

Boring v. The Buncombe County Board of Education, 136 F.3d

364 (4th Cir. 1998) (applied Pickering and Hazelwood, cited infra,

to a situation where teacher’s speech involved curriculum-related

matters); Martin v. Parrish, 805 F.2d 583 (Sth Cir. 1986); Ferrara

v. Mills, 781 F.2d 1508 (11th Cir. 1986); Bishop v. Aronov, 926

F.2d 1066 (11th Cir. 1991); and Brewster v. The Board of

Education of Lynwood Unified School District, 1998 U.S. App.

LEXIS 12768 (9th Cir. 1998) (applied Pickering to situation where

public school teacher was disciplined partly for reporting errors

regarding school attendance records). It is clear that the circuits

are not split.

The Petitioner erroneously suggests the existence of conflict

between the decisions of the First Circuit citing Ward v. Hickey,

996 F.2d 448 (ist Cir. 1993), and the court below. The test

articulated in Ward v. Hickey requires that classroom speech is not

2. The decision of the Eleventh Circuit below was a per curiam

affirmance and therefore there is no conflict between the instant case and the

reasoning of the Court in Ward v. Hickey.

protected, unless it has a “legitimate pedagogic concern.” The

First Circuit’s use of the “legitimate pedagogic concern” test is

essentially identical in application to the use of the test of “public

concern” test articulated by other circuits including the Eleventh

Circuit. Under Ward v. Hickey, an instructor that insults or offends

individuals with inappropriate racial invective during a pre-class

conversation, does not engage in a legitimate pedagogical concern

nor does it reflect a matter of “public concern.” Thus, there is no

conflict among the circuits for the purposes of this case.

C. The Petitioner was on fair notice regarding the

inappropriateness of his conduct.

The Petitioner is an instructor in the field of public relations.

He was provided with a clearly drafted rule prohibiting sexual and

racial harassment. Thereafter, he received training on the application

of the rule and authored a memorandum indicating his

understanding of the need to avoid discriminatory conduct.

The Petitioner was aware that he was violating the rule when

he directed an offensive racial slur at students Austin and Flanigan,

and others within earshot. It is beyond cavil that to attribute to a

person a “nigger mentality” is the most opprobrious of slurs. In

fact, the Petitioner prefaced his remarks with the revelation that he

was about to use language offensive to the listeners.

The University, as an employer, has the authority, and indeed

the obligation to promulgate rules identifying the parameters of

acceptable conduct. Connick v. Myers, supra. Waters v. Churchill,

511 U.S. 661, 114 S. Ct. 1878 (1994). The University’s rule

prohibiting discriminatory acts is well crafted so as to preserve the

academic experience in an atmosphere free of distracting or

demeaning discriminatory conduct. Grayned v. City of Rockford,

408 U.S. 104 (1972). University instructors must be responsible

for the likely application of a rule to their conduct. “Common

sense, reason and good judgment should have made him cognizant

of the fact that his conduct could be cause for {discipline}” and

that he “understood both the standards to which he was being

held and the circumstance of his conduct.” Korf v. Ball State

University, 727 F. 2d 1222, 1227-8 (7th Cir. 1984). The instant

‘eit:

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rule does no offense to academic freedom, but rather furthers the

goals of the University.

Racial slurs more profoundly burden the Striving

toward educational attainments of their victims than

do noise or inane sales patter ... Racial insults

obviously burden the ability of targets to pursue their

Studies; infuriated and embarrassed, their emotions

may push them toward self-protection or retaliation.

The University should have an obligation to protect

its students from such disabling harassment.

J. Peter Byrne, Racial Insults and Free Speech Within the

University, 79 Georgetown L.J. 399, 420.

To accept the Petitioner’s argument that he should escape any

corrective action because the rule is vague, would invalidate any

policy prohibiting racial or sexually offensive conduct or

harassment. If the instant rule does not squarely apply to the

Petitioner’s conduct, then no rule could ever be fashioned that

would require the Petitioner to accept some responsibility for his

offensive remarks. The Petitioner's proposed limitation upon an

employer’s ability to take remedial action because of a “vague”

rule is contrary to this Court’s instruction that an employer is

obligated to prevent and correct promptly any discriminatory

harassing behavior. Faragher v. City of Boca Raton, 118 S. Ct.

2775, 141 L. Ed. 2d 662 (1989).

The Petitioner also argues that, before the employer may take

corrective action, the discrimination must be severe and pervasive

citing Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). This

argument confuses the standard for establishing the employer’s

liability under Title VII with the obligation of an employer to take

remedial action in response to an employee's harassing or offensive

racial or sexual conduct. Contrary to Petitioner’s argument, the

obligation of the employer is to take appropriate corrective action

upon every instance of improper offensive racial or sexual

harassment. Faragher, infra.

The Petitioner’s reliance upon Cohen v. San Bernardino Valley

College, 92 F.3d 968 (9th Cir. 1996), is misplaced as the narrow

decision in that case turned upon a unique set of facts not applicable

here. For many years, the instructor in Cohen utilized an unusual

teaching style and lecture content with the approval of his

supervisors. Without explanation, his teaching was deemed in

violation of a pre-existing anti-harassment rule. The court noted

that the University had permitted the instructor to teach in this

manner for years without a finding that this conduct was in violation

of the rule. The court was critical of the change in enforcement

and the inconsistent interpretation of the rule. In Cohen, the court

did not intend to render a broad observation regarding the

promulgation of rules restricting racially offensive slurs.

We do not decide whether the College could punish

speech of this nature if the Policy were more

precisely construed by authoritative interpretive

guidelines or if the College were to adopt a clearer

and more precise policy.

(Cohen, at page 971).

Distinguishing the instant case from Cohen, the Respondent's

rule prohibiting discrimination is applied and enforced in a

consistent manner. The Petitioner does not assert that his use of a

racial epithet was ever condoned by the University.

Furthermore, even in the absence of a rule, the University is

free to take corrective measures when an employee offends others

with the use of a racial epithet. The District Court held:

Mr. Gee also asserts that FAMU’s rule against

discrimination and harassment, which FAMU cited

as grounds for his suspension, is vague. But a

university, like any other public employer, need not

have a comprehensive code of conduct to govern

its employees; public employees may be disciplined

for good cause even without a specific written rule

prohibiting the conduct at issue. It should have been

obvious to Mr. Gee, from either a reading of the

rule at issue or just as a matter of plain common

sense unrelated to any written rule, that this kind of

racially derogatory remark could and reasonably

would result in corrective or disciplinary action. Mr.

Gee could not possibly have thought he was free to

direct this kind of remark at his students with

impunity.

That court’s holding has been mirrored by this Court (“While

proof that an employer had promulgated an anti-harassment policy

with complaint procedure is not necessary in every instance as a

matter of law, ....” Faragher at 1998 U.S. LEXIS 4216, p. 4).

Also see Ward v. Hickey, supra, 996 F.2d at 454 (“. .. we do not

hold that a school must expressly prohibit every imaginable

inappropriate conduct by teachers.”).

D. There is no conflict among the circuits regarding the

application of the balancing test.

The Petitioner suggests that the circuits are in need of guidance

regarding which balancing test should be used to analyze the

regulation of speech in the classroom. (Comparing Pickering with

Hazelwood). Contrary to this assertion, a review of the decisions

cited in the Petition reflects that the circuits have uniformly balanced

the interests of the public employer and public employee regarding

free speech using Pickering and Hazelwood. Hazelwood is not

inconsistent with Pickering, but rather reflects an application of

the principles of Pickering to classroom speech.

All of the cases on the balancing of free speech interests, cited

by the Petitioner, emanate from the same court decisions and reflect

a common reasoning. The seminal case Pickering, calls for

a balance of the interest of the teacher, as a citizen,

in commenting upon matters of public concern and

the interests of the State, as an employer, in

promoting the efficiency of the public services it

performs through its employees.

Pickering, 391 U.S. at 568.

Hazelwood School District et al. v. Kuhlmeier, 484 U.S. 260

(1988) and its progeny, including Miles v. Denver Public Schools,

944 F.2d 773 (10th Cir. 1991), draw upon the Pickering balancing

principles, and discusses speech in the educational setting. These

cases extend the Pickering “public concern” test to recognize

that a:

state’s regulation of speech in a public school setting

is often justified by peculiar responsibility in

providing educational services to assure that

participants learn whatever lessons the activity is

designed to teach, that readers or listeners are not

exposed to material that may be inappropriate for

their level of maturity and that the views of the

individual speaker are not erroneously attributed

to the school.

Miles, 944 F.2d at 777, quoting Hazelwood, 484 U.S. at 271.

Furthermore, it is not clear as to why the instant Petitioner,

having failed the Pickering balancing test, would complain about

not receiving consideration under the more onerous Hazelwood

analysis. The instant Petitioner failed to meet the broad “public

concern” test articulated by Pickering and its progeny. Thus, he

could not pass the legitimate pedagogical concern test referenced

in Hazelwood. The Petitioner’s speech would not be protected

under Pickering, Connick, Hazelwood, or Miles. In any event,

since the Petitioner’s remarks did not constitute pedagogical speech,

it does not implicate Hazelwood or Miles.

E. There is no conflict among the circuits regarding the

exhaustion of state judicial remedies prior to bringing a

procedural due process claim.

The decision of the Eleventh Circuit below is a per curiam

affirmance. The Petitioner does not seek to identify a conflict

between this case decision and other circuits, but argues that there

is a split between a different case, McKinney v. Pate, and other

circuits. In addition, the fact that the lower court issued a per curiam

affirmance without an opinion leaves this Court without an opinion

as to the legal issues which formed a basis of the lower court’s

holding. In such a case, this Court has normally declined to

exercise review. NLRB v. Sears Roebuck & Co., 421 U.S. 132, 44

L. Ed. 2d 29 (1975); Ramsey v. United Mine Workers, 401 U.S.

302, 28 L. Ed. 2d 64 (1971); Adickes v. Kress & Co., 398 U.S.

144, 26 L. Ed. 2d 142 (1969). Therefore, the instant case does

not provide an appropriate basis for certiorari review.

|. Petition for Writ of Certiorari Previously Denied

Regarding McKinney.

The Petitioner asserts that the decision reached by an en banc

panel of the Eleventh Circuit Court of Appeals in McKinney v.

Pate, 20 F.3d 1550 (11th Cir..1994) (en banc), cert. denied, 513

U.S. 1110 (1995), should be reversed. As the citation indicates,

however, this Court previously had the opportunity to review the

decision in McKinney, and declined certiorari review. Nothing has

transpired since this Court’s decision to deny certiorari in McKinney

that would warrant a revisitation of that case.

2. Facts Of Instant Case Inappropriate For Review.

In any event, the issue which the Petitioner is asking this Court

to address is whether he should have been required to exhaust all

of his state judicial remedies before bringing a federal cause of

action for procedural due process violations. In reviewing the facts

of the instant case, the Court will find that this is clearly not the

appropriate situation for reviewing an issue of this magnitude.

The Petitioner received full pre-suspension due process

including:

- notice of complaints;

- fright to file position statement with EOP

investigator;

- legal and union representation;

- appearance before the UPC with witnesses to

respond to the charges; and

- meeting with the University President to respond

to the charges.

Thereafter, he enjoyed the right to appeal the suspension

under Section 120.57, Fla. Stat., and obtain an administrative

hearing with full disclosure of all charges and adverse evidence,

discovery, subpoena authority and legal representation. The

Petitioner elected not to seek such a hearing. In the event the

Petitioner had desired, he could have alternatively sought binding

neutral arbitration under the collective bargaining agreement.

Such arbitration would have allowed him a full evidentiary hearing

with subpoena authority and legal representation.

Throughout this case, the Petitioner has suggested that he

was unable to grieve the President’s decision to suspend under

Rule 6C3-10.125, F.A.C. The Petitioner’s brief reflects a

misinterpretation of the rule. The Petitioner enjoyed the right to

appeal his suspension under processes provided pursuant to the

Administrative Procedures Act, culminating in a Final Order by

the University which is appealable to the District Court of Appeals.

Alternatively, he could have grieved the suspension under the

collective bargaining agreement through two steps to binding

neutral arbitration. There must be an election of these remedies.

The provision of Rule 6C3-10.125(8)(b), F.A.C., merely prevents

the appeal to the President after initiation of other litigation.

In any event, it is undisputed that the instant Petitioner

elected not to grieve his suspension or to seek an administrative

hearing. Rather, he abandoned the available processes and filed

directly in a federal forum. There is no indication in the record

to suggest that the grievance or the administrative hearing

would have been futile. The Petitioner cannot explain why he

simply abandoned these quick and fair processes. In fact, the

Petitioner’s union representative, Dr. Tucker, opined that he

believes the Petitioner would have sustained his grievance,

had one been filed. The Petitioner not only declined to exhaust

his state judicial remedies before bringing his federal cause of

action, but also failed to exhaust all of the internal remedies

provided to him by the University.

The seminal cases in the area of procedural due process

have generally involved a piaintiff who had availed himself of

the means provided to him, and therefore had “clean hands”

in claiming a denial of due process. The Petitioner in the instant

case, however, failed to even pursue the “in house” remedies

which were available to him.

3. McKinney Not In Conflict With Other Circuits.

Assuming, however, that this Court does not deny the petition

on the above grounds, the Respondents contend that the

Petitioner’s arguments are flawed for a number of additional

reasons. Therefore, the petition for a writ of certiorari should be

denied for the foilowing reasons as well.

First, the Petitioner has mischaracterized the Eleventh Circuit’s

decision in McKinney. According to the Petitioner’s interpretation,

the Eleventh Circuit relied exclusively upon Parratt v. Taylor,

451 U.S. 527 (1981), in rendering its decision in McKinney.

Petitioner also contends that McKinney conflicts with virtually

every other circuit in failing to limit Parratt to cases where the

conduct in question is truly “random” and “unauthorized.”

Furthermore, Petitioner offers the cases of Harris y. Bd. of Ed. of

City of Atlanta, 105 F.3d 591 (11th Cir. 1997); Bell v. City of

Demopolis, 86 F.3d 191 (11th Cir. 1996), and Tinney v. Shores,

77 F.3d 378 (11th Cir. 1996), for the proposition that the Eleventh

Circuit has extended McKinney to mean that post-termination

procedures must be used regardless as to why the initial procedures

were inadequate and regardless as to the authority under which the

actions were performed.

As an initial matter, the Petitioner’s interpretations of Harris,

Bell and Tinney, though creative, are nonetheless inaccurate. In

Harris, the Eleventh Circuit did absolutely nothing to expand the

meaning of McKinney or the requirements of post-deprivation

process. Instead, the court simply stated that it did not need to

decide the issue of procedural due process in order to rule on the

pending claim of qualified immunity. Harris, 105 F.3d at 596.

Similarly, in Bell the Eleventh Circuit merely restated its holding

in McKinney and acknowledged that the state of Alabama offered

adequate remedies in the form of administrative and state court

review. Bell, 86 F.3d at 192. Finally, in Tinney the Eleventh Circuii

stated that because the plaintiffs had failed to challenge the

adequacy of Alabama’s post-deprivation remedies, the court had

no occasion to decide whether Alabama law in fact provided

adequate remedies for relief. Tinney, 77 F.3d at 382. Therefore, a

more accurate reading of these cases indicates that McKinney

and its progeny have not expanded the realm of post-deprivation

procedures nearly as much as the Petitioner would have this Court

believe.

In addition, the Petitioner falsely characterizes McKinney as

standing for the proposition that a plaintiff must “exhaust” his

state remedies before pursuing federal relief for procedural due

process claims. The Eleventh Circuit, however, specifically rejected

this argument as a basis for its ruling by explicitly stating in its

decision:

McKinney’s case fails, therefore, not for want of

exhaustion; indeed, exhaustion is irrelevant to our

decision and finds no mention in the opinion.

Rather, McKinney’s case fails because he fails to state

a procedural due process claim under Parratt and its

progeny that would give rise to a section 1983 suit.

Id. at 1564. (Emphasis supplied). Therefore, Petitioner's

argument that McKinney stands for this proposition is utterly

misplaced and totally unsupported by the decision itself.

The remainder of Petitioner’s argument revolves around the

claim that the Eleventh Circuit’s interpretation of Parratt “conflicts

with virtually every other circuit.” (Petitioner’s Brief, pp. 24-25.)

In support of this argument, the Petitioner cites to a number of

cases which he claims stand for this proposition.

The cases cited by the Petitioner in his brief, however, do not

conflict with McKinney for a number of reasons. First, most of the

decisions cited to by the Petitioner were decided prior to this Court

originally denying certiorari of McKinney in 1995. These cases

include Cotnoir v. University of Maine System, 35 F.3d 6 (1st Cir.

1994), and Kercado-Melendez v. Aponte-Roque, 829 F.2d 255,

263 (Ist Cir. 1987), cert. denied, 486 U.S. 1044 (1988); Dwyer v.

‘iti

) Regan, 777 F.2d 825 (2d Cir. 1985); Stana v. School District of

; City of Pittsburgh, 775 F.2d 122 (3d Cir. 1985): Plumer vy.

; Maryland, 915 F.2d 927, 928-29 (4th Cir. 1991); Cushing v. City

of Chicago, 3 F.3d 1156 (7th Cir. 1993), and Easter House v.

Felder, 910 F.2d 1387 (7th Cir. 1990); Haygood v. Younger, 769

F.2d 1350 (9th Cir. 1985); and Winters v. Board of County

Commissioners of Osage County, 4 F.3d 848 (10th Cir. 1993).

As previously referenced, this Court was presented with a

petition for writ of certiorari regarding McKinney in 1994. At that

time, each of the decisions referenced above had been rendered

and were available to this Court for its review. If this Court had

determined that a conflict existed between them and the decision

in McKinney, this Court would have no doubt granted the writ for

certiorari at that time. This Court, however, declined to do so and

obviously determined that no such conflict existed between the

decisions. Therefore, these cases cannot serve as a basis for

Petitioner's claim of a conflict between the circuits on the issues

addressed in the instant case.

This lack of a conflict is further reinforced by the fact that

since the decision in McKinney and this Court’s decision to decline

certiorari review of McKinney, the courts within the circuits cited

above have either rendered decisions relying on McKinney or

citing favorably to McKinney as controlling authority or have

failed to address the issues raised in McKinney, apparently agreeing

by their silence with its reasoning. For instance, in McDaniels v.

Flick, 59 F.3d 446 (3d Cir. 1995), cert. denied, 134 L. Ed. 2d 97,

116 S. Ct. 1017 (1996), the Third District Court relied heavily

upon McKinney and other cases following its line of reasoning

and held:

We find these cases convincing. First, as the Supreme

Court has held, [t]he constitutional [procedural due

process] violation actionable under § 1983 is not

complete when the deprivation occurs; it is not

complete unless and until the State fails to provide

due process. Zinermon v. Burch, 494 U.S. 113, 126,

110 S. Ct. 975 (1990) ... We also find most

persuasive the application of Parratt v. Taylor, 451

U.S. at 527, 101 S.Ct. 1908, to claims that pre-

termination decision makers were not impartial .. .

Id. at 460. (Emphasis supplied). See also Dykes v. Southeastern

Pa. Trans. Auth., 68 F.3d 1564 (3d Cir. 1995), cert. denied, 116

S. Ct. 1434 (1996); Barkauskie v. Indian River School District,

951 F. Supp. 519 (D. Del. 1996) (citing to McKinney and holding

that no violation until state refuses to provide due process); Myers

v. Town of Landis, 957 F. Supp. 762 (M.D. N.C. 1996) (court

within Fourth Circuit which relied heavily upon McKinney in

reaching its decision); Roe v. Antle, 964 F. Supp. 1522, 1531-

1533 (D. N.M. 1997) (court within Tenth Circuit which described

McKinney as “Instructive” and “persuasive”’).

As for the remaining circuits, the Petitioner has likewise

misapplied the holdings in these circuits to fit his purposes. As for

the Fifth Circuit’s holding in Brooks v. George County, 84 F.3d

157 (Sth Cir. 1996), that court simply held that actions in

accordance with an official policy should not be labeled as “random

and unauthorized” under Parratt. In its holding, that court made

absolutely no mention of the decision in McKinney or the issues

which it addressed, either favorable or unfavorable. Therefore, no

conflict with McKinney is created by such a holding.

The Petitioner also attempts to support his argument with a

case from the Sixth Circuit, Moore v. Board of Education of

Johnson City, 134 F.3d 781, 785 (6th Cir. 1998). According to

the Petitioner, the court in that case rejected the Parratt analysis

because the teacher in that case was not required to plead nor prove

the inadequacy of post-termination state law remedies. (Petitioner’s

Brief, p. 25). Though tiiis appears to be an accurate summary of

that court’s ruling, that court also made it very clear that they made

that ruling in “the present case”, indicating it was a very fact specific

determination. /d. In addition, that court focused its attention almost

solely on the analysis in Parratt relating to “random” and

“unauthorized” actions. /d. In contrast, the court in McKinney made

absolutely no reference to such a distinction, nor did it make this

a basis of its decision. Furthermore, even though the Moore

decision was rendered after the Eleventh Circuit’s decision in

McKinney, the Moore court makes absolutely no reference to

McKinney in its ruling.

As for the authority cited from the Eighth Circuit, the

Petitioner offers the lone case of Charchenko v. City of Stillwater,

47 F.3d 981 (8th Cir. 1995), which merely states that an aggrieved

employee has two forums available to him within that circuit, state

and federal relief. Jd. at 984. That case, however, is easily

distinguishable from McKinney and the instant case. In Charchenko,

the issue was whether the employee's failure to pursue any

administrative remedies in state court barred his claim for federal

relief. Jd. at 984. In the instant case, Gee not only failed to pursue

his state remedies, but rather, also declined to exhaust the internal

remedies which were available to him at the University. Therefore,

since Charchenko did not even address the issues faced by the

court in McKinney and the instant case, it is impossible to tell if it

is in conflict with McKinney on these vital issues or not.

Perhaps even more telling, however, are the decisions which

have been rendered from the Eighth Circuit subsequent to

Charchenko and McKinney. For instance, in Reinhart v. City of

Maryland Heights, 930 F. Supp. 410 (E.D. Mo. 1996), the Middle

District Court for the Eastern District Court of Missouri reiied

heavily upon McKinney and noted that the Eleventh Circuit had

recently examined “Supreme Court jurisprudence” on the issue

and rendered what it considered to be controlling authority on that

issue. Id. 412-413. See also Friedman vy. City of Overland, 935 F.

Supp. 1015 (E.D. Mo. 1996) (relying heavily upon McKinney,

court found that plaintiff had failed to state a cause of action under

§ 1983 because substantive due process claim does not exist if the

claim does nothing more than allege negligent conduct.)

As for the United States Court of Appeals for the District of

Columbia, the Petitioner offers the case of Tri County Industries,

Inc. v. District of Columbia, 104 F.3d 455 (D.C. Cir. 1997). Unlike

many of the other cases offered by the Petitioner, this case actually

was rendered after the decision in McKinney. Like all of the other

decisions, however, it again makes no reference to the holding in

McKinney or to any of the reasoning relied upon by the Eleventh

Circuit in that case.

The court in Tri County does make a reference to the fact that

an employee pursuing a procedural due process claim need not

“exhaust his local remedies.” Jd. at 462. As discussed in more

detail above, however, the court in McKinney clearly discounted

“exhaustion” as a basis for its holding, and therefore all references

to this issue as a possible source of conflict are utterly misplaced.

In addition, that court also mentioned that “there is a circuit split

on this issue.” /d. at 460. In making this statement, however, that

court was clearly referring to the issue of whether the Parratt

analysis applies to actions by high ranking officials acting within

the scope of their authority. Jd. This narrow issue, though perhaps

sharply contested between the circuits, was not even mentioned

by the Eleventh Circuit in McKinney. Despite Petitioner’s apparent

desire to confuse the issues in the instant case, this is not one of the

issues to be addressed by this Court, nor was it an issue addressed

by the lower court in McKinney.

Finally, the Petitioner offers a series of previous decisions of

this Court in an attempt to undermine the credibility of the decision

in McKinney. First, he offers Logan v. Zimmerman Brush, Co.,

455 U.S. 422 (1982) for the proposition that Parratt does not

require a resort to a state remedy where the state system itself denied

the property interest. In reading this Court’s opinion in Logan,

however, it becomes quite clear that the Court was not overturning

its prior decision in Parratt, but rather was simply defining further

instances which constitute “random and unauthorized” conduct.

Id. at 435. Again, however, this distinction has no bearing on the

instant case or McKinney because the Eleventh Circuit did not rely

on such a distinction in reaching its decision in McKinney. In

addition, Logan dealt with an extremely fact specific situation,

namely where a state commission’s actions caused an employee

to miss a procedural deadline. In the present case, no such issues

would apply. Therefore, this case offers little to the argument that

the Eleventh Circuit’s decision in McKinney contradicts with

existing authority.

ee ee cen the ee TE ae

The Petitioner also offers the case of Zinermon v. Burch, 494

U.S. 113 (1990), to support his claim. Petitioner has offered this

case for the proposition that Parratt is a special case in that only

post-deprivation remedies are due. Even assuming, however, that

this is the premise of Zinermon, this does not in any way conflict

with the holding of McKinney. In fact, the Eleventh Circuit’s

decision in McKinney cites directly to Zinermon for the proposition

that:

A § 1983 action may be brought for a violation of

procedural due process, but here the existence of

State remedies is relevant in a special sense. In

procedural due process claims, the deprivation by

State action of a constitutionally protected interest

. iS not in itself unconstitutional; what is

unconstitutional is the deprivation of such an interest

without due process of law ... The constitutional

violation actionable under § 1983 is not complete

when the deprivation occurs; it is not complete unless

and until the State fails to provide due process. Id.

at 126; McKinney, 20 F.3d at 1560.

(Emphasis supplied). Therefore, being that this basic premise

is founded on the language set forth in Zinermon, it seems

impossible to hold that the reasoning of McKinney conflicts

with Zinermon.

The Petitioner contends that the holding in McKinney cannot

be reconciled with the holding in Loudermill. As discussed above,

the Eleventh Circuit relied heavily upon Loudermill and Zinermon

in reaching its decision. This fact alone undermines the viability

of Petitioner’s argument of unreconciled decisions. More

importantly, this Court’s decision in Zinermon was rendered after

the decision in Loudermill, and therefore the Court took upon

itself to reconcile the concept that a violation of procedural due

process is not complete until a plaintiff has availed himself of all

the state remedies. Having done so, the Eleventh Circuit relied

upon this “reconciled” version of this Court’s views and issued

its decision in McKinney.

Therefore, Petitioner’s claims of conflict are totally

unfounded, and his petition for a writ of certiorari should be denied

in its entirety for the reasons set forth above.

CONCLUSION

For the foregoing reasons, this Court should deny the Petition

for Writ of Certiorari.

Respectfully submitted,

MICHAEL MATTIMORE

MARK E. LEVITT

Counsel of Record

ALLEN, NORTON & BLUE, P.A.

215 South Monroe St., Suite 305

Tallahassee, Florida 32301

(850) 561-3503

ARTHUR C. WALLBERG

Assistant Attorney General

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399-1050

A.D. McKNIGHT

Associate General Counsel

Florida A & M University

Office of the General Counsel

Suite 300 Lee Hall

Tallahassee, Florida 32307

(850) 599-3591

Attorneys for Respondents

Frederick Humphries, Bishop

Holifield, Carrie Gavin, Nellie

Woodruff, Robert Rollins and

Richard Hogg

ee ae TF

—

APPENDIX A — LETTER FROM HAWKINS TO

GEE DATED AUGUST 23, 1993

August 23, 1993

Professor Gerald Gee

744 Red Fern

Tallahassee, FL 32308

Dear Professor Gee:

As we return to work for the 1993-94 academic year, we know

you share our hope that this will be a good, productive year. It

must be, for the reaccreditation of the Division of Journalism

depends on our working hard, together, to get the things done

which we must to position ourselves not only for successful

February reaccreditation but also for a successful October Board

of Regents program review. That is just around the corner.

We shall all be expected to pitch in to get final preparations

completed, and our work must be quality work.

Some faculty have been or will be assigned specific tasks for

the ACEJMC self study and perhaps the BOR program review.

Deadlines must be met. The ACEJMC self Study is due

November 1, and there must be time allowed in advance for the

Dean, the Provost, and the President to read it and suggest

improvements. So, deadlines will be set accordingly.

One of the biggest concerns we have is that you take very

Seriously the requirement to include in your course syllabi the

contributions of women and minorities, not just African

Americans, to journalism and mass communication. Dean

Ruggles returned from Poynter with a lot of book and article

ideas and has asked Mrs. Woody to acquire them for us, to be

Appendix A

placed on a special reserve shelf just for journalism faculty.

They have added to that since our return.

It should go without saying that including these contributions

in your syllabi is not enough. You must then bring them into

your classroom lectures/discussions/demonstrations. Check Mrs.

Woody on some new A-V materials which might assist.

You should also know that ACEJMC from 1994-95 onward

will require units seeking accreditation to enumerate the ways

they prepare their students for work in a multi-cultural society.

If we can demonstrate in syllabi and courses that we are doing

that now, so much the better.

Syllabi and course handouts for the fall and spring semesters

will be inspected by the site visit team. They will also talk with

students about what they get in class. It is up to us to see we

have that base well covered.

We are optimistic about the BOR review and the reaccreditation,

especially if we can get some of our equipment and other

financial problems worked out. But we are not kidding

ourselves; it will be mighty hard work, but it will be easier if

we all cooperate and work as a team. We had that team spirit at

Poynter and those of us there saw how well it worked. Let’s

recapture it and keep it going. It is essential.

It is our sincere hope to visit each journalism class at least once

during the fall semester to try to get a sense of your teaching

strengths — and weaknesses, if any. We have not been able to

do that regularly, and we feel we must, if for no other reason

than to steal some of your good ideas.

Appendix A

Now, a more personal word or two.

We ask that you and Professor Haskins schedule a meeting

with us early in the semester so we can discuss ways to

minimize potential damage to reaccreditation.

In addition, you come up for tenure this year. Unless there

have been some productive activities on your part which we

do not know about, we are seriously concerned about your

ability to receive tenure. You should recall that Dean Ruggles

has express 4 oncern about that in your administrative

evaluations at ieast the last two years. We invite your attention,

yet again, to the School’s tenure and promotion policy

statements.

We hope there is truly no cause for alarm and that you will

have a productive 1993-94 year.

Sincerely, Sincerely,

/s/ Robert M. Ruggles /s/ James E. Hawkins, Director

Dean Division of Journalism

Date:

From

To:

APPENDIX B — MEMORANDUM FROM GEE

TO HAWKINS DATED SEPTEMBER 10, 1993

Memorandum

September 10, 1993

: Gerry Gee /s/

James Hawkins, SJMGA Journalism Division

Director

Robert Ruggles, SJMGA Dean

Subject: recent requests/assignments and on-going concerns

(This is coming to you first, Jim, but is intended for Dean

Ruggles as well so I ask you to share it with him. Thank you.).

Resumes/Vitae for ACEJMC self-study

(per 8/27/93 memo):

The dean’s call for yet another revising/updating of faculty

resumes is timely, given our preparations for reaccreditation,

and surely applies to our new faculty members. However, I

think

the resume I revised and submitted last April (4/18/93)

complies with the recommended format and covered most

pertinent information about me. Please recall that version

included these ten categories, each clearly specified:

1) Addresses

2) Experience (Academic)

3) Experience (Professional)

4) Education

5) Memberships (Professional & Honorary

Organizations)

6) University Service

Appendix B

7) Public Service

8) Publications and Presentations (listing

monographs, articles, professional

papers, and speeches and seminars)

9) Honors, Awards & Credentials

10) Teaching Specialties

Did I miss something? Do you need more? My summer

was spent mostly teaching summer school and relocating

locally, so I have no new information to add to my resume —

unless, of course, you want it to show new administrative

assignments (see below); those, however, haven't resulted in

any accomplishments yet.

I’m sure you'll tell me if the resume, I submitted last spring

isn’t sufficient now for ACEJMC self-study purposes. Unless I

hear otherwise from you (Bob), I'll assume it is.

Il. PR Sequence report assignment:

Given our need for a well-done sequence self-study report,

Jim, I’m willing to help you by taking on that task now.

Your request yesterday that I accept this additional

responsibility was a bit of a surprise, though, given that Prof.

Haskins is currently the sequence coordinator/head AND that

along with my normal teaching load this term and new duties

involving retention at both division and school levels, I’m

expected to submit, fairly soon, a strong application for tenure.

Nevertheless, I understand and appreciate your desire to

produce good sequence reports for the self-study/reaccreditation

process. Having written the previous PR Sequence reports, I

know what needs to be said and how to Say it. That familiarity

Appendix B

will be an asset, of course, but I’m sure the task still will take

more time than you think — time that I had counted on for

other things (i.e., my own professional future here).

You (plural now) have expressed some concern about our

PR Sequence. I share those concerns. Seems to me we need:

1) more and better cooperation between the PR

teachers.

2) arevitalized PRSSA chapter, and

3) greater enthusiasm and visibility by the PR

students.

All that would be a start, a good one, and the sequence surely

will be strengthened by the presence of Marilyn Kern-Foxworth

next spring. But we must tackle the obvious problems now,

and I want you both to know that / want to do that too.

I believe you should re-appoini me to serve as PR Sequence

coordinator/head, at least for this reaccreditation period. Weak

as it may be now, comparatively, do you not agree the Sequence

was stronger when I was the head of it? Besides, it makes sense

to have the senior faculty serve as heads of the four sequences,

especially at this particular time. (By “senior,” understand I mean

those in each sequence who have been here the longest --

Keirstead, Gee, Abrams, and Grow respectively -- NOT our

oldest faculty members.) If you agree and do this, however, the

result is a collection of Four White Males, and the caution/

concern I raised yesterday — that some might have a problem

with that — ought to be considered.

In any case, you'll have a report from/about the PR

Sequence by (or before) deadline and it will be well done, not

half-baked or pressure-cooked. I promise you that.

Appendix B

Ill. School retention concerns:

I'd like the Minutes of our 8/23 School faculty meeting to

be correct. Please recall that it was I, not Arvid, who spoke of

the president’s concern about retention: you then asked Arvid

if it was mentioned at the management meeting, Bob.

Remember?

In fact, it’s because I raised the subject and suggested a

school committee be formed to address it that I was appointed

to chair the project in the first place. That’s how I recall it.

Small point, I know, but let’s give credit where it’s due.

(By the way, it was Gee, not Grow, who also brought up

the rumor about faculty raises being reduced to fund the so-

called “Super Teachers’ Awards.” Grow chimed in, saying he

had heard the same, but Yours Truly first put the matter on the

floor.

We Geralds are often confused — with each other, that

is!)

Anyway, I'll try to schedule the SJMGA Retention

committee's initial/organizational meeting next week and

include Mr. Haskins, per your 9/3 memo requesting that. I too

want “a good set of statistics” and recommendations to come

from our work, and that will happen if we’re able to work

cooperatively AND get good cooperation from School (and

University) support staff from whom we’ll be seeking data. |

may need to call on one or both of you to “grease the skids”

but I hope not.

And thanks (anyway), Bob, for designating me to work

with Sterlin Adams and the Academic Affairs Office as our

Appendix B

school’s “retention data coordinator.” Yes, I suppose that’s

logical.

IV. Tenure and Personnel Relations:

What is less logical is why I’m being given — or at least

taking on — these key assignments at this critical point in my

own career here. Is the gun being aimed at my foot again,

STS?

Your mostly boiler-plate 8/23/93 letter came to me not at

home but in an unsealed envelope in my campus/office mailbox.

In any case, 1 was — and am — very distressed to hear that you

are “seriously concerned about (my) ability to receive tenure.”

You say I should recall the dean’s “expressed concern about

that in (my) administrative evaluations at least the last two years.”

I do; on those occasions, I’ve been reminded of my lack of any

record of recent research. You also suggest I look again at the

SJMGA tenure/promotion policy statements. I have, and it

seems to me one needs a strong history in two of the three

criterion areas (teaching, research, service) but not necessarily

in all three. My woeful lack of research productivity is more

than offset, then, by my record in the areas of teaching and

service, a record I believe to be substantially better than most

on our faculty. Could I be wrong about this? If so, you haven’t

said so in or beyond the context of those administrative

evaluations.

Admittedly, my general productivity slipped a bit in the

past three years, no doubt related to the deterioration of my

marriage (ultimately ending, after 23 years, in what has turned

out to be a less-than-amicable divorce) and, a year later, my

Appendix B

mother’s death (from causes related to her alcohol addiction).

Still, I would pit my record of teaching and service, going back

to when I joined the faculty here in 1977, against that of any

other member of our faculty. Or would that be a mistake?

I was persuaded once to withdraw my initial application

for tenure, and I now know that was a mistake. I was led to

believe my first application would not be approved (by then-

President Walter Smith) because I lacked the terminal degree.

Subsequently, the rules changed, of course, and others on our

faculty without that degree have received tenure and/or

promotions since 1982 while | languished for many years

outside the “tenure-stream.”

In fact, a close examination of practices here would reveal

at least one instance of a faculty member being tenured and

promoted to full professor without the (newer) requisite

qualifications and another being granted tenure without

application review by the school’s tenure/promotion committee.

Moreover, at least one faculty member received tenure after

being given, in the application process, various kinds of

administrative support — support which, to date, I have yet to

be offered in any form.

Rather than encouragement in and support for this process,

what I seem to be getting from you is yet another “you're not

doing enough” whack-on-the-hands warning. That’s

discouraging.

The most recent (but perhaps not final) example of that

discouragement is the request (requirement?) In your 8/23 letter

to schedule a meeting with you and Mr. Haskins soon “so we

can discuss ways to minimize potential damage to

10a

Appendix B

reaccreditation.” WHO, pray tell, is supposed to call this

meeting? WHAT is this oblique reference to “potential damage”

and WHY, after Poynter, am I being put on record as being

associated with something so nebulous and negative? If you

have some problem with me, please be clear about it. A slur,

however vague and veiled, is still a slur, and I don’t appreciate

it, in print or in person.

I once sat in your office, Jim, and listened to Mr. Haskins

express “absolutely no respect” for my professional experience

and teaching. Remember that? Well, despite such dogmatic

damnation, I’m still willing to do whatever I can to heal this

rift between us — assuming it’s something that can be healed

at all. Yet a closed mind, however cordial on certain occasions,

is still a closed mind, and there’s only so much/ can do.

So, gentlemen, what are the next steps?

lla

APPENDIX C — MEMORANDUM FROM GEE

TO RUGGLES DATED SEPTEMBER 20, 1993

Memorandum

TO: Dean Ruggles FROM: Gerry Gee

RE: resume request(s) DATE: 09-20-93

Does the right hand know what the left hand is doing?

That I was arrong those to whom you addressed your 9/15

memo calling, again, for revised/updated resumes indicates you

had not seen a 9/10 memo I wrote to you and Dr. Hawkins and

gave to him to share with you.

If you had seen it, you would have known that (1) a version

of my resume, revised and submitted earlier (4/18/93), is already

on file and covers (I think) all of the essential Categories you

want included now, and (2) I’d be willing to do another if that

earlier one is not sufficient.

My 9/10 memo addressed other concerns too, but I'll not

get into those here; your 9/15 memo is enough to deal with

now.

For the record, I spoke with Mrs. Travis several times last

week to make sure my resume — the 4/93 revision — was on

file in your office. At first, I was told that it wasn’t — that those

you asked us for back then were in Dr. Workman’s hands (for

whatever reason); later, in another conversation, Mrs. T. Said

she did, in fact, have (that version of) my resume. As far as |

knew, then, there was not need to do another.

But along comes your 9/15 memo implying, flat-out, a

lack of cooperation on my part (and others). I resent that, Bob.

12a

Appendix C

Last week I also checked with Dr. Hawkins to make sure

he had gotten my 9/10 memo. He said he had and would “get

back to (me)” about it. As of last Friday (9/17) he had not done

so.

Well, I hope you see, if you haven’t already, what’s been

on my mind lately; the 9/10 memo spells it out quite clearly.

Meanwhile, here’s a revised Page | of my resume showing my

new home address. Add this to what you got from me last April

and my resume will then be accurate and, I believe, sufficient

for your purposes at this point.

/s/

Gerry

l3a

APPENDIX D — LETTER FROM MEMBERS OF THE

CLASS TO HAWKINS DATED SEPTEMBER 22, 1993

September 22, 1993

Dear Professor Hawkins:

In a class discussion on 09/20/93 in PUR 4001, Professor

Gerald Gee made an unacceptable comment in relation to our

concern about the lack of public relations outlets for students

on campus. He said that waiting around for someone to give

us these outlets created a “nigger mentality,” one which will

keep us sitting on the back of the bus forever. We feel his

comment was derogatory, unethical and most importantly,

inappropriate. There are many other terms he could have

chosen to convey this message, and as a journalism professor,

we are sure he was aware of this.

In a day and age where racial tension is on the rise, and

multi-culturalism is taught in the University, we find Professor

Gee’s use of terms to be especially detrimental to his relationship

with many students in our class. To Say the least, we are appalled

and outraged that he could stand in front of our class and so

blatantly disregard the fact that we as African-Americans are

extremely sensitive to the use of racially derogatory terms of

any kind. We find his action, in any context, not only racially

charged, but extremely unprofessional.

To make a statement of this nature, we are more than

concerned about how his attitude will affect his position at an

historically black university. The words of Professor Gee were

unappreciated and most certainly will not be tolerated. We

demand the administration to respond accordingly.

l4a

Appendix D

Sincerely,

/s/ Lisa G. Atkinson

/s/ Derik G. Austin

/s/ Marlon Flanigan

/s/ Chamane Kennedy

/s/ Tisha Rumph

/s/ Angela Ellis

cc: Dean Robert Ruggles

Dr. Richard Hogg

Leo Sam

Dr. Frederick Humphries

Prof. James Haskins

lSa

APPENDIX E — MEMORANDUM FROM GEE

TO HAWKINS DATED SEPTEMBER 24, 1993

(SEAL)

Tallahassee, Florida

- MEMORANDUM

Date: September 24, 1993_

From: Gerald Gee

To: Dr. James E. Hawkins, journalism division director

Subject: concerns about my teaching

Yesterday, at about 9 a.m., you called my home and left a

message indicating there was a matter you wanted to discuss

with me in your office “as soon as possible.” I called you about

an hour later and learned then that this was about a letter you

had received from some students in my Public Relations Case

Studies class, a letter in which they voiced their objections to a

remark I had made in class last Monday night.

You asked, in that conversation, for an explanation and |

gave you my account of what I recalled saying and why: in

short, I tried to put my objectionable remark in context, jusi as

I had done at the time it was first made. My explanation was

neither understood nor well received (on both occasions), and I

came to your office to see you so we could discuss the matter

further.

When I arrived, at 11:12 a.m., you were speaking with

someone, so, after waiting a few minutes, I left to chair a

16a

Appendix E

previously called 11:15 meeting of the School Retention

Committee. I came back after that and at 12:40 p.m. you gave

me an unsigned copy of the students’ letter of concern. We then

sat in your office and discussed it, during which time you handed

me your 9/23 memo which had been prepared prior to my

arrival.

I want you to know (again) that I understand our students’

objections to the remark I made. Indeed, I anticipated adverse

reaction to it before I even said it Monday night and so tried —

before, during and after saying it — to put it into context. Sadly,

some chose to focus on one word (or phrase) and, therefore, to

not hear the point I was trying to make. Others did, however,

and I presume that is why their signatures are not affixed to the

letter you received. In any case, I have done as you suggested

and prepared the enclosed written apology to be read to the

whole class when it meets again Monday night (9/27).

It is my fervent hope that my apology will mollify the

students and that no further action on this will be necessary.

For the record, I am greatly distressed myself not only about

this situation’s content (the remark and the uproar it has caused)

but also about the manner in which it is being handled.

The students voiced their complaints directly to you, in

writing, with copies to several University officials and to another

teacher. I was neither sent nor given that letter by the students,

so it’s clear they meant to formally bring their concern to others

but not to me. I believe we have a policy, or at least a widely-

known practice, that students who feel something is wrong

should attempt to work that out with their teacher(s) before

taking it “up the line.” That did not happen in this instance;

17a

Appendix E

instead, others were made aware while I was not. Moreover,

where the policy/practice calls for a stepwise progression

through several levels of university administration, these students

chose to publish their complaints simultaneously to four

different officials — and, for whatever reason, to a another

teacher. Granted, the policy/practice referred to here is for

pursuing formal grievances, it is stil] something used for more

general problematic situations as well. But not this time.

You told me the letter was Signed by seven students and

that an eighth name was included “but in parentheses.” Yet you

refused my request to see who signed it or to otherwise know

just who has complained so I could direct an apology particularly

to them. Some apparently understood what I was trying to say

Monday night, or at least they were not given (or chose not to

take) the opportunity to add their names to the letter. You expect

me to apologize to a whole class for what only some are upset

about; fine, I’ll do that. But this whole thing resembles more a

“star chamber” conviction, complete with (to me anyway)

anonymous accusers, than an opportunity to address,

forthrightly and openly, certain individual and collective

concerns. I’ve had such experiences before but I never thought

I'd get that treatment here. It seems I was wrong to expect better

from this University.

Again, I was aware at the time that my choice of words

was going to shock and even offend some. I warned about that

before making the remark. I repeatedly said that my coriment

was not directed at anyone in particular, nor was it to be

understood as a condemnation of the class in general. And I

apologized for it afterwards, at least once, to the whole c’ass fin

attendance).

18a

Appendix E

While I would like a chance to direct yet another apology

specifically to the students who were disturbed enough to write

the letter, | am being denied that opportunity. Why? Apparently

because you feel I might take some retributive action against

them. It especially saddens me that you would think that, Jim,

after working with you for 16 years. Do we not know each

other anymore? Have we been so wrong about each other all

these years?

Listed below are the students enrolled in PUR 4001-001

(Public Relations Case Studies) according to the Registrar’s

Office 9/3 and 9/17 — Preliminary Rolls (the latter received on

Thursday, 9/23). Class attendance last Monday (9/20) is also

shown.

#/name: on rolls: 9/03 9/17 present on 9/20:

1. ATKINSON, Lisa : i Y ¥

2. AUSTIN, Derek Y Y Y

3. CLARK, Changalar Y Ef Y

4. COLE, James N* N* N

5. DANIELS, Charie Y Y N

6. DAVIS, Nikki Y Y ¥

7. FLANIGAN, Marlon Y Y Y

(but left early)

8. GREGORY, Dwanna

9. GRIFFIN, Tia

10. KENNEDY, Chamane

11. KING, Doran

12. McKINNIE, Selena

13. McPHERSON, Dana

14. MILLER, Alvina

15. PORTER, Curtis

nna Za

MK TKK

19a

Appendix E

16. RUMPH, Tisha Y N Y

17. TUCKER, Tamara Y Y Y

18. WILLIAMS, Vecelia Y Y N

(excused for illness)

*James Cole attended one class session and told me he was

trying to get in the course, but I never saw him after that.

Seven of the 14 students who were in class Monday night

put their signatures to a letter and then added the name of

another, perhaps to create a majority expression. But I quite

agree with you: if even one student is so upset by something in

a classroom, there is a need to solve the problem and rectify the

Situation.

Your memo yesterday said you were “willing to discuss

this matter (of my remark and the reactions to it) at the earliest

Opportunity.” I wish you had been so “willing” to discuss the

issues and concerns cited in my earlier (9/10) memo to you,

‘im. It has been fully two weeks since you got that — with my

request that you share it with Dean Ruggles — and, other than

an “I'll get back to you on it,” I’ve not heard anything from

you about what I raised there. Worse, perhaps, I learned from a

telephone conversation with him late yesterday that Dean

Ruggles still has not seen that memo — despite my calling his

attention to it in a separate memo last Monday. Now you are

“willing” to communicate with me about something that

concerns us both (and others surely), but when were we going

to deal with what I raised earlier?

Your memo says you’re sure I “know the value of having a

classroom climate where the students realize a sense of

encouragement, concern and effective direction.” Indeed | do,

Jim.

20a

Appendix E

What I wonder now, though, is whether you yourself know

the value of an administrative climate where the teachers

experience “a sense of encouragement, concern and effective

direction.” And if I must ask myself that about you, I must ask

it about others here as well. But it’s not my job to question (or

second-guess) how or why some folks do what they do. My

job is to teach.

The record will show that I’ve done what I could to be a

good (and sometimes even great) teacher here. It’s clear that my

work in teaching and service, two of the three areas in which

faculty are expected to excel, is commendable, even if I’ve not

gotten much public reward or recognition for it. Nevertheless,

my potential for continued success in those endeavors here is

seriously undermined now by what some few people may think,

by perceptions and misunderstanding. I feel rsinds — and

mouths — closing all round us here, a certain skittishness about

the possibility of saying something that might offend. That sort

of “political correctness” will, I believe, be the death of free

expression. I’m sorry to see it happening even/especially here.

In your 8/23 letter to me, you and Dean Ruggles said you

were “seriously concerned about (my) ability to receive tenure.”

I tried to address that in my 9/10 memo but thusfar have gotten

no response from either of you. Now, because of this incident,

I have come to share your doubts about my getting tenure here.

I believe there is, in addition to my public apology to the

students, one thing that can be done that will put this matter to

rest, firmly and finally, to the satisfaction of some parties. Under

the circumstances, I can see no great good coming from my

continuing to teach at Florida A&M University. Therefore, for

reasons both professional and personal, I hereby resign from

my post(s) here, effective at 5:00 p.m. today.

2la

Appendix E

My office will be cleared out over the weekend, and I'll

work with you on making an orderly transition for a replacement

teacher in my courses. I ask only that you read my enclosed

statement to the students in PUR 4001 this Monday night

(9/27).

For you help you have been to me at times along the way,

I thank you.

encl.

¢: Mr. Robert M. Ruggles, SIMGA dean

Dr. Richard A. Hogg, vice president of academic affairs

Dr. Frederick $. Humphries, president

Mr. Leo P. Sam, Jr., vice president of university relations

22a

APPENDIX F — MEMORANDUM FROM GEE

TO RUGGLES DATED SEPTEMBER 24, 1993

MEMORANDUM

TO: SJMGA Dean Robert M. FROM: Gerald M. Gee

Ruggles

RE: response to 09/23 memo DATE: 09-24-93

and call

The memo Dr. Hawkins gave me yesterday regarding the

“Letter from Students in your Case Studies Class” and your

phone call later in the day, in which you informed me you were

placing a “letter of reprimand” in my file, were the proverbial

straws.

You have broken this camel’s back, Bob.

Please ready over the enclosed copies of my response memo

to Dr. Hawkins AND the earlier (09/10) memo which you

apparently never saw or heard about from him. They begin to

tell the story.

Bottom line, though, is this: I'm quitting. I believe my

effectiveness as a teacher here has been severely undermined

by this latest misunderstanding, the most recent in a series of

instances in which I’ve felt very badly treated by some students

and certain other teachers. You know what I mean, I’m sure.

There’s no way now to go back and “set the record straight”

one experience after another all points the same way: I’ve

outlived my usefulness here. It’s time to put this ali behind me.

Strange company I’m in: John Hanson, Frank Johnson,

Max Shively and others who put a thorn in your side (or a bur

23a

Appendix F

in your saddle) more often than not. And now me. And, like

them, I’m leaving FAMU with more gall than gratitude at this

point.

(You once said, when John Hanson went from here to

teach at Temple U., that Temple “would chew him up and spit

him out.” Remember that? Is that what happened to me here at

Florida A&M?)

The timing is right. Marilyn Kern-Foxworth will be here

in the spring; this gives you some time to pull together enough

incentive to persuade her to stay and fill the open line position.

We do need her here; you don’t need me under these

circumstances.

As you see, I’ve asked Dr. Hawkins to read my apology/

Statement (enclosed) to the students in Case Studies Monday

night. I suspect that whatever concern my leaving causes, it

will pass soon and will be much less than what would be if I

Stayed now. On the other hand, I can think of a few who might

actually be prone to celebrate my departure — and I bet they

will.

Nothing more to say, in writing or otherwise. In an earlier

time, when my hair was short, you probably regarded me as

playing “Lt. Fuzz” to your “Gen. Halftrack.” Well, I can say

now I’m beginning to know that Ollie North has felt like (though

I still can’t stand his politics), and it truly isa STRANGE feeling.

/s/

Gerry

24a

APPENDIX G — MEMORANDUM FROM GEE TO

ALL STUDENTS IN PUR 4001-001

DATED SEPTEMBER 24, 1993

MEMORANDUM

(To be read to all students in PUR 4001-001 on Monday, 09-

27-93.)

FROM: Gerry Gee DATE: 09-24-93

RE: last week’s class

Following a remark I made in class last week, some of you

wrote a letter to Dr. Hawkins and provided copies to several

others — though not to me. Apparently, the letter was signed by

seven (or eight) or you; Dr. Hawkins shared the letter with me but

fully protected you from any potential or retribution for it.

That letter, and events before and after it, prompted my

resignation from Florida A&M University last Friday (9/24). My

last request of Dr. Hawkins was that he read this statement to

you tonight since I am no longer an employee of FAMU.

Now about what I said last week: I’m sorry. I tried to prepare

you at the time for what I was about to say, tried to explain that it

was not directed at anyone in particular (or even at all of you asa

class), and I apologized to you afterwards for saying it. I would

hope that at least some of you remember that.

In truth, I’m very sorry about what I said last week because,

in making that remark, I fundamentally misjudged my audience

— always a grievous mistake in Public Relations. I had thought

you were capable of hearing beyond words — even that one —

and capable of understanding my concern for you. I was wrong.

25a

Appendix G

You might not think so, but I did learn a lot during my 16+

years of teaching here. I’m better for having had this experience,

and I believe my former students are better for it too. Some of

them anyway. Another PR lesson: You can’t please all the people

all of the time, but you must be honest with yourself.

I’m sorry also that we won’t be able to finish this terms

together, that I won’t be here to see you graduate and that what

you'll remember from all this is this and not whatever I taught

you up to this point. But I wish you all well in any Case.

You and I know there will be lots of rumors and TALK about

my sudden departure in the wake of what I said last week. If you

must add to that, please contribute facts and not gossip.

Remember: You (most of you) were the “eyewitnesses” so you

KNOW what happened. Some of you may even know why it

happened.

You put your signatures to a letter in which you accused me

of being (among other things) “unprofessional.” Thus, I have

chosen to no longer “profess” here. I’m leaving teaching.

Please continue to read widely, proofread carefull y, learn all

you can and apply your knowledge wisely. Good luck to you.

26a

APPENDIX H — MEMORANDUM FROM GEE TO

HAWKINS AND RUGGLES DATED SEPTEMBER 27, 1993

MEMORANDUM

Date: 09-27-93

From: Gerald M. Gee

To: James E. Hawkins, SJMGA Journalism Division

Director

Robert M. Ruggles, SIMGA Dean

Subject: follow-up to Friday’s meeting

I thank both of you for meeting with me last Friday at 4

p.m. to discuss the problem of my unfortunate use of certain

words in the Public Relations Case Studies (PUR 4001) class

on Monday, 09-20-93.

You both no doubt were focused on that problem as the

dilemma-at-hand and were thinking of ways to resolve it when

I gave you my 09-24 memo referencing earlier concerns (see

09-10 memo) and saying that, in the face of it all, I had decided

to resign from teaching at Florida A&M University.

That was how our 4 p.m. meeting began: with my decision,

which I presented as my solution to several problematic

concerns.

To recap, now, some of the major points of that meeting

1) Dr. Hawkins, you asked if I really meant this (what

was Said in my 09-24 memo); I replied that I did.

27a

Appendix H

2) Dean Ruggles, you said you thought this was “a bit

extreme”; I said I didn’t think so under the circumstance

— that I saw this as a way of resolving several dilemmas

at once: the students’ concerns about my use of a term

in the Case Studies class; a longstanding (and seemingly

unresolvable) personality clash with another faculty

member (Mr. James Haskins); the matter of my coming

up for tenure (again) this year and feeling (a) no sincere

administrative support for that and (b)-that this incident

(prompted by the students’ copying their letter to the

highest levels of administration) would prejudice any

application I might make for tenure. Neither you nor

Dr. Hawkins took that moment to address those

concerns one-by-one; instead, you both expressed,

again, your feeling that my decision was “extreme.”

3) I told you that, simply put, I wasn’t enjoying what I

was doing here anymore, that I had lost the energy

and enthusiasm I once had and so felt I am no longer

the teacher you need for our (Public Relations) students,

and that my decision was based on all that and more.

4) I said I believed my leaving now would make it easier

on all concerned. You both said you didn’t think so,

and you, Dean, inquired about my health — if this

was a physical or mental problem. I said I didn’t

think so. You asked if I had talked about the stresses

of work with a psychologist, and I said I had not.

5) Addressing some particular points of my 09-24 memo,

Dr. Hawkins reiterated his rationale for not divulging

the names of the students who had signed the 09-22

letter of complaint, to which I said simply, “that’s

28a

Appendix H

okay.” You also reminded me that you did act on one

point raised in my 09-10 memo, namely, my suggestion

that a change be made in the heading of the Public

Relations Sequence. (That action, by the way, came

in the form or your 09-20 memo to me and Mr.

Haskins, six working days after I had discussed it in

my earlier memo — which, itself, was an immediate

follow-up to our previous day’s telephone

conversation in which you said, among other things,

that you were “thinking of making a change in the PR

Sequence Head” post.)

6) You both agreed that my prepared statement/apology

was well written and acceptable (at least to you).

7) Finally, after much discussion, you both asked me to

delay cleaning out my office and to take the weekend

to think about my decision and to meet with both of

you on Monday (today) before doing anything else. I

agreed to meet again but said I would begin to clear

my office (we joked that it needed a good cleaning

anyway) and that I wasn’t planning to meet my classes

on Monday. Dr. Hawkins agreed to read my statement/

apology to the students in Case Studies Monday night.

Subsequently, with the help of Dr. Abrams, I began cleaning

out my office over the weekend. (I had not discussed my

decision with anyone other than yourselves, and reluctantly

disclosed it to Mike only after we met you at the elevator Sunday

evening and he commented to me about how depressed you

seemed, Jim.) As you have seen, some of my papers, etc. have

been removed but much still remains. I’d like to finish that

process this week.

29a

Appendix H

Also, in a phone conversation prior to my first scheduled

class, you (Jim) asked if my decision stood and if I was “going

forth with the letter.” I told you that, in fact, I had thought

about it this weekend but could not bring myself to any change

in the decision at that point. I said also that, before doing

anything else, I would meet with you and Dean Ruggles at

some time today convenient to us all. You suggested a 3 p.m.

meeting, and I agreed to see you both at that time.

I must tell you I feel awful about this. To think that my

15+ years of teaching here has come down to this . . . well, it’s

tragic, both personally and professionally. It isn’t what I'd like

but it is something I feel I must do.

Jim, you mentioned in our Friday meeting that perhaps I

was making a “martyr” of myself. But for what? No, I’m not

martyring myself by doing this; people — both the good and

the not-so — leave their jobs when they feel they must (though

some of the not-so-good find ways of staying on past their

prime — and at FAMU, as elsewhere | Suspect, the academic

process of tenure is compromised enough by politics to allow

that to happen).

Were I not to leave now, what assurances are there that

my application (again) for tenure here would be objectively

reviewed and considered without bias of any kind, as indeed it

should be?

I do not see how, given the major important responsibilities

I've been asked (and had agreed) to assume recently pertaining

to retention and reaccreditation, I can assemble an application

for tenure strong enough to overcome any lingering prejudices

and those now arising from this latest incident. Thus, as I see

30a

Appendix H

it, my days at FAMU are numbered anyway, so it makes more

sense to leave now voluntarily than to be “cut loose” later.

No, I’m certainly not a martyr here. Just greatly

overworked. And as I said Friday, some can continue on that

basis but I cannot. You need a “fresh” teacher here, and I’m

sure our students would better appreciate one who is younger,

black and female. Marilyn Kern-Foxworth will be more to

their liking.

Let me be clear about this: I’m not leaving to take a better

job somewhere else. I have no offers, nor have I been seeking

any. My hope was to someday retire from Florida A&M, not

resign from this great University. No, if anything, I’m doing

what I feel I must do now to preserve my physical and mental

well-being.

This is, in a way, putting myself on medical leave, but

permanently. I just wish I didn’t have to severe my ties to —

and employment by — the University to accomplish that what

is needed now.

University officials may want to bring action (e.g., a

breach-of-contract suit) against me, but I don’t wish to see

any such dispute made public or met with formal counter claims.

The extent to which this may get “messy” is up to you — and

them.

Finally, let me say, as I did last Friday, that I’m resigning

because I see no other way of resolving the new and not-so

new dilemmas attendant to my continued presence here.

However, if you two — or others — see some other solution,

I’d be more than happy to hear and consider it at this time.

/s/ Gerry

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