# Opposition Brief — Gee v. Humphries

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 869

## Text

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

4
\

ee

i
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.

ii
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.
B.

‘.

A. This case does not implicate questions of the First

il

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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13

iv

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

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Vv

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

vi

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

xi
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

4a

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

2

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,

3

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.

4

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

;
2
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2

5

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

6

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

7

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).

8

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.

eT
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9

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.

10

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

ee vier a we ee

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1]

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

12

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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13

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-

14

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

15

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.

16

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:

GOERS LS tit Ne AIR a AA

17

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.

18

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

19

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.

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20

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

21

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.

22

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

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23

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

24

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

25

) 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

26

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

27

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

28

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

29

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

30

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

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la

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

2a
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.

ad

3a

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:

4a

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.).

1.

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

Sa

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

6a

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.

7a

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

8a

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

9a

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

Mn
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.

a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1211%3A17. Public record. Not legal advice.