Appendix — Jeffries v. Harleston
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(Z) FIL BD
95 34 JuL35 199
No. 95- OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
DR. LEONARD JEFFRIES, JR.,
Petitioner,
v.
BERNARD HARLESTON, individually and in his official
capacity as President of City College of New York,
W. ANN REYNOLDS, individually and im her official capacity
as Chancellor of City University of New York,
JAMES P. MURPHY, EDITH B. EVERETT, HERMAN BADILLO,
SYLVIA BLOOM, GLADYS CARRION, LOUIS C. CENCI,
MICHAEL J. DEL GUIDICE, STANLEY FINK,
WILLIAM R. HOWARD, HAROLD M. JACOBS, SUSAN MOORE
MOUNER, CALVIN O. PRESSLEY, and THOMAS TAM,
individually and in their official capacities as
Trustees of City University of New York,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
Joseru FLEMING
59 John Street
8th Floor '
New York, New York 10038
, (212) 385-8036
Attorney for Petitioner.
Washington, 0.C. + THIEL PRESS + (202) 328-3286
(%)
APPENDIX Page
Appendix A — Judgment and Opinion of the United
States Court of Appeals for the Second Circuit
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Appendix B — Order of the Supreme Court of The
United States Dated November 14, 1994............. l5a
Appendix C — Plaintiff-Appellee’s Letter Brief
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Appendix D — Defendant-Appellant’s Letter Brief
OR SUEY BU Re sicin atk no Sharh oe aieiec cic cees 28a
Appendix E — Plaintiff-Appellee’s Letter Brief
EOE SOEE Rae i bah 6 00 ibtésé 0 Gelecec 60 ewes 56a
Appendix F — Defendant-Appellant’s Letter Brief
RE BELO U URS dae desececssvcces 45a
Appendix G — Judgment and Opinion of the United
States Court of Appeals for the Second Circuit
RE EE Os Bs oh bk 6 Oho owes hee e's cc cue 50a
Appendix H — Order of the District Court, Southern
District of New York, Dated May 11,1993 ........... 76a
Appendix I — Order of the District Court, Southern
District of New York, Dated April 21,1993........... 82a
Appendix J — Order of the District Court, Southern
District of New York, Dated March 31,1993 .......... 86a
Appendix K — Verdict Form #8 ............0200e0000: 93a
Appendix L — Amicus Letter Brief of City University
EE OE IE | EE EA Se 97a
Appendix M — Memorandum dated September 19,
1991 from Dean Jeffrey Rosen to Provost
RG A a he Uae ee 109a
Appendix N — Memorandum dated October 2, 1991,
from Dean Jeffrey Rosen to Provost Robert
aa dhe wie ie inet A de aah a ele on 0 0-0 112a
Appendix O — Memorandum dated October 4, 1991,
from Provost Robert Pfeffer to President
Ps Wr EN 6 oN cow hee eee eke ee RS ll4a
(it)
Page
Appendix P — Minutes from the September 19,
1991 meeting of the Faculty Senate of City
College... csccedsetecbsetetivobesccescses 122a
Appendix Q — Excerpts from Transcript of Testimony
of Chancellor Ann Reynolds — Cross Examination. .... . 125a
Appendix R — Excerpts from Transcript of Testimony
of President Bernard Harleston — Cross
Bunmmimetiom, «ccc cc viccteviveccccsiesscsevess 127a
Appendix S — Excerpts from Transcript of Testimony
of Trustee Stanley Fink — Cross Examination......... 13la
Appendix T — Excerpts from Transcript of Testimony
of Trustee Gladys Carrion — Cross Examination....... 134a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 1993
No. 953
(Argued: January 21, 1994
Decided: April 18, 1994
Vacated: November 14, 1994
Decided: 4/4/95)
Docket No. 93-7876
LEONARD JEFFRIES,
Plaintiff-Appellee,
BERNARD HARLESTON, individually and in
his official capacity as president of City College of
New York, W. ANN REYNOLDS, individually
and in her official capacity as Chancellor of
City University of New York, JAMES P. MURPHY,
EDITH B. EVERETT, HERMAN BADILLO,
SYLVIA BLOOM, GLADYS CARRION, LOUIS
C. CENCI, MICHAEL J. DEL GUIDICE, STANLEY
FINK, WILLIAM R. HOWARD, HAROLD M.
JACOBS, SUSAN MOORE MOUNER, CALVIN
O. PRESSLEY, and THOMAS TAM, individually and
in their official capacities as Trustees of
City University of New York,
Defendants-Appellants,
2a
BLANCHE BERNSTEIN,
Defendant.
Before: VAN GRAAFEILAND and McLAUGHLIN,
Circuit Judges, and BURNS, District Judge.
In Jeffries v. Harleston, 21 F.3d 1238 (2d Cir. 1994),
we held that a city university could not fire a non-
policymaking employee for speaking on issues of public
concern unless the speech actually disrupted government
operations. See 21 F.2d at 1245-47. Subsequently, in an
unrelated case, a plurality of the United States Supreme
Court indicated that the government could fire such an
employee based on a reasonable prediction that the
speech will cause disruption. See Waters v. Churchill, 511
U.S. __, 114 S.Ct. 1878, 1887, 1889 (1994) (plurality
opinion). The Supreme Court then vacated the judgment
entered in Jeffries, and remanded to us for reconsidera-
tion in light of Waters. See Harleston v. Jeffries, 115 S.
Ct. 502, 503 (1994) (memorandum).
We now reverse the judgment of the district court, and
remand with instructions to enter judgment for the
defendants.
REVERSED and REMANDED with instructions to
enter judgment for the defendants.
Kathie Ann Whipple, Acting Bureau Chief,
Office of the Attorney General of the State of
New York (Dennis C. Vacco, Attorney General
of the State of New York, of counsel) for Defen-
dants-Appellants.
*Honorable Ellen Bree Burns, of the United States District
Court for the District of Connecticut, sitting by designation.
ES SE Te ae eS eS Nr
rt
3a
Joseph Fleming, New York, NY, for Plaintiff-
Appellee.
Sheldon D. Camhy, Camhy Karlinsky & Stein,
New York, NY, for amicus curiae Anti-Defama-
tion League.
Kenneth S. Stern, Samuel Rabinove, Wendy
Lecker, Penina Goldstein, New York, NY, for
amicus curiae The American Jewish Committee.
Arthur L. Galub, New York, NY, for amicus
curiae University Faculty Senate.
Henry Mark Holzer, Karen Johnson, Brooklyn,
NY, for amicus curiae The Individual Rights
Foundation.
McLAUGHLIN, Circuit Judge:
In Jeffries v. Harleston, 21 F.3d 1238 (2d Cir. 1994),
we affirmed the district court’s judgment that 15 uni-
versity officials violated the First Amendment rights of
a professor, Leonard Jeffries, by reducing his term as a
department chairman because of a controversial speech
(the “Albany speech”) he had given off campus. Our
decision rested on what we understood to be the appli-
cable rule that the government cannot take action against
an employee for speaking on public issues, unless it
first shows that the speech actually “impaired the effici-
ency of government operations.” Jd. at 1245. We also
vacated the part of the judgment that found six of the
defendants liable for punitive damages, as the jury’s
special verdict responses were “hopelessly irreconcilable”
on whether these defendants harbored the necessary evil
motives. Jd. at 1250.
A month after our decision in Jeffries, the United
States Supreme Court decided Waters v. Churchill, 511
ta
U.S. —, 114 S.Ct. 1878 (1994) (plurality opinion). A
four-justice plurality in Waters held that the government
could fire an employee for disruptive speech based on its
reasonable belief of what the employee said, regardless of
what was actually said. See Waters, 114 S.Ct. at 1889. In
addition, when weighing the value of the employee’s
speech against the interference with government opera-
tions, the Waters plurality also indicated that a govern-
ment employer need only show that the speech is tkely
to be disruptive before the speaker may be punished. See
id. at 1887, 1890.
The Jeffries defendants, relying on Waters, petitioned
the Supreme Court for a writ of certiorari. The Supreme
Court granted certiorari, and, without comment, vacated
Jeffries and remanded to us for reconsideration in light
of Waters. See Harleston v. Jeffries, 115 S.Ct. 502, 503
(1994) (memorandum).
On remand from the Supreme Court, we reverse the
district court’s judgment because defendants made a sub-
stantial showing at trial that their decision to limit
Jeffries’ term was based upon a reasonable prediction
that the Albany speech would disrupt university opera-
tions.
BACKGROUND
We summarize the facts briefly; a more detailed
account appears in our initial opinion. See Jeffries, 21
F.3d 1239, 1241-44.
Leonard Jeffries was the chairman of the Black Studies
department at City College of New York (“City College’),
which is part of the City University of New York
(“CUNY”) system. In delivering the Albany speech,
which addressed the bias of New York State’s public
5a
school curriculum and the history of black oppression,
Jeffries made several derogatory statements, particularly
about Jews. After the speech, City College President
Bernard Harleston and CUNY Chancellor Ann Reynolds
arranged for the CUNY Board of Trustees to vote as to
whether to limit Jeffries’ term as department chair to one
year, even though such terms normally last three years. A
majority of the 14 members of the CUNY Board of
Trustees voted to limit Jeffries’ term. The votes were cast
as follows: Nine of the Trustees voted to limit Jeffries’
term to a year; four voted to remove him immediately;
one abstained because she had made critical comments
about Jeffries in the past. Harleston and Reynolds did
not vote because they were not Trustees.
Jeffries sued Harleston, Reynolds, and all 14 of the
individual CUNY trustees under 42 U.S.C. §1983 in the
United States District Court for the Southern District of
New York (Kenneth Conboy, Judge), alleging that they
removed him in violation of the First Amendment. (One
of the 16 original defendants, Trustee Blanche Bernstein,
died during the trial, and Jeffries discontinued his claims
against her.) Jeffries sought reinstatement and punitive
damages.
The jury was given several sets of interrogatories to
answer. In response to the first wave, the jury found that
the defendants demoted Jeffries because of the Albany
speech. The jury’s answers also indicated that the Albany
speech did not disrupt “the effective and efficient opera-
tion of the Black Studies Department, the College, or the
University,” but that the defendants “were motivated in
their actions by a reasonable expectation” that the
speech would cause such a disruption. The judge con-
cluded from these responses that all 15 remaining defen-
dants had violated Jeffries’ First Amendment rights
6a
because the speech was substantially on matters of public
concern, and did not cause actual harm to CUNY.
The judge then submitted another wave of questions
to the jury to discern the individual liability of each of
the 15 defendants. In response, the jury found that only
six defendants—Harleston, Reynolds, and Trustees Edith
Everett, Herman Badillo, Sylvia Bloom, and Harold
Jacobs (together, the “Harleston defendants”)—took
action against Jeffries because of the Albany speech, and
would not have done so had Jeffries not given the speech.
Of the four Trustees who are Harleston defendants, three
had voted to remove Jeffries from his post immediately,
and one had abstained because of the negative statements
she had made about Jeffries in the past. (The fourth vote
to remove Jeffries immediately came from Trustee Bern-
stein, who died during the trial, and is not part of this
appeal.) The jury found that the other nine defendants,
all of whom had voted to limit Jeffries’ term to one year,
did not act with the same retaliatory animus.
On the third and final wave of interrogatories, the
jury found that all six of the Harleston defendants had
“acted with malicious intent to violate the plaintiff’s
rights under the First Amendment . . . or with malicious
intent to unlawfully injure him, or . . . with a callous or
reckless disregard of the plaintiff's First Amendment
rights.” Based on these findings, the jury awarded puni-
tive damages against the Harleston defendants.
After finding that the defendants were not shielded
from liability by qualified immunity, the district judge
entered judgment consistent with the jury responses
(although he reduced the punitive damage amounts). In
addition, the judge ordered the defendants to reinstate
Jeffries as chairman of the department for two years.
The defendants appealed.
7a
We affirmed the reinstatement order, agreeing with the
district court that the defendants had violated Jeffries’
right to free speech, and that the Harleston defendants
were not shielded by qualified immunity. See Jeffries,
21 F.3d at 1245-49. We found, however, that the jury’s
special verdict responses were inconsistent regarding the
six Harleston defendants’ liability for punitive damages.
Specifically, we could not reconcile the jury’s finding
that all 15 of the remaining defendants demoted Jeffries
based on their reasonable belief that the Albany speech
would harm CUNY, with its later finding that the six
Harleston defendants demoted Jeffries out of a malicious
desire to violate his free speech rights, or at least in reck-
less disregard of these rights. Thus, we vacated the puni-
tive damage awards against the six Harleston defendants,
and remanded for a new trial against these six on the
punitive issues. See id. at 1249-50.
Upon the defendants’ petition, the Supreme Court
granted certiorari, vacated our judgment, and remanded
with instructions to reconsider our opinion in light of
Waters. See Harleston, 115 S.Ct. at 503.
DISCUSSION
One of the principles driving our earlier Jeffries deci-
sion was that the First Amendment protects a govern-
ment employee who speaks out on issues of public inter-
est from censure by his employer unless the speech
actually disrupted the employer’s operations. See Jeffries,
21 F.3d at 1245. We expressly held that a mere reason-
able belief that the speech would interfere with the
employer’s operations is not enough to discipline an
employee, unless the employee holds a high-level, policy-
making position. See id. at 1246-47.
Applying that standard, we studied the Albany speech,
and found that it squarely involved issues of public con-
cern—namely, the New York state public school curric-
ulum, and black oppression throughout history. See id.
at 1245-46. Then, after examining CUNY’s bylaws, and
the testimony of CUNY officials, we agreed with the
district court that the position of Black Studies Chairman
was a ministerial position at CUNY, and carried no
policymaking authority. See td, at 1246-47. Thus, we
held that the defendants bore the burden at trial to show
that the speech actually interfered with CUNY opera-
tions. See id. at 1246. Given the jury’s finding that the
defendants had failed to make this showing, we held
that the defendants had violated Jeffries’ free speech
rights. See id. at 1248.
At the time, the strict actual interference requirement
reflected the law of the Second Circuit. See Piesco v.
City of New York, 933 F.2d 1149, 1160 (2d Cir.) (if the
speech “‘so clearly touch[es] on matters of public con-
cern, the government is required to demonstrate inter-
ference with the efficient functioning of the workplace’’),
cert. denied, 112 S.Ct. 331 (1991); see also Rankin v.
McPherson, 483 U.S. 378, 390-91 (1987) (nature of
employee’s position determines whether the employee’s
speech “somehow undermines the mission of the public
employer’). The recent Waters decision, however, has
loosened Presco’s shackles upon public employers.
In Waters, a four-justice plurality held that the govern-
ment could fire an employee for disruptive speech based
on the government’s reasonable belief of what the em-
ployee said, regardless of what was actually said. See
Waters, 114 S.Ct. at 1887, 1889 (O’Connor, J., joined
ans ki ig Nige odcacras ie,
9a
by Rehnquist, C. J., Souter and Ginsburg, JJ.). Here,
however, there is no dispute as to what Jeffries actually
said in the Albany speech. Accordingly, we need pursue
only that part of Waters dealing with the disruptiveness
of the speech.
The Waters plurality reiterated the test of Connick v.
Myers, 461 U.S. 138 (1983), to determine when the First
Amendment protects speech by a government employee:
To be protected, the speech must be on a matter of
public concern, and the employee’s interest in
expressing hershelf on this matter must not be out-
weighed by any injury the speech could cause to the
“interest of the State, as an employer, in promot-
ing the efficiency of the public services it performs
through its employees.’ ”
114 §.Ct. at 1884 (quoting Connick, 461 U.S. at 142
(quoting Pickering v. Board of Ed. of Township High
School Dist., 391 U.S. 563, 568 (1968))).
The plurality then explained that, in applying this test,
the extent of the injury caused by the employee’s speech
need not be actual; rather, the government’s burden is
just to show that the speech threatened to interfere with
government operations. See id. at 1887, 1890. It empha-
sized that greater deference must be given to the govern-
ment when it acts as employer rather than as sovereign:
[W]e have given substantial weight to government
employers’ reasonable predictions of disruption,
even when the speech involved is on a matter of
public concern, and even though when the govern-
ment is acting as sovereign our review of legislative
predictions of harm is considerably less deferential.
[A] government employee, like any citizen, may
have a strong, legitimate interest in speaking out on
10a
public matters. In many such situations the govern-
ment may have to make a substantial showing that
the speech is, in fact, likely to be disruptive before
it may be punished.
Id. at 1887 (emphasis added); see also United States v.
Treasury Employees Union, 115 S.Ct. 1003, 1018 n.21
(1995) (quoting Waters to reaffirm that deference is given
to government’s reasonable predictions of harm when
used to justify the punishment of isolated incidents of
employee speech).
We read the Waters plurality opinion to hold that the
closer the employee’s speech reflects on matters of public
concern, the greater must be the employer’s showing that
the speech is likely to bé disruptive before it may be
punished. See Treasury Employees Union, 115 S.Ct. at
1021 (O’Connor, j., concurring in part, dissenting in
part) (“As the magnitude of intrusion on employees’
interests rises, so does the Government’s burden of justi-
fication”). There is, thus, a proportion between the
nature of the speech and the nature of the sanction that
may ensue. Nevertheless, even when the speech is squarely
on public issues—and thus earns the greatest constitu-
tional protection—Waters indicates that the government’s
burden is to make a substantial showing of /tkely inter-
ference and not an actual disruption. 114 S.Ct. at 1887.
il.
Whittled to its core, Waters permits a government
employer to fire an employee for speaking on a matter of
public concern if: (1) the employer’s prediction of dis-
ruption is reasonable; (2) the potential disruptiveness is
enough to outweigh the value of the speech; and (3) the
employer took action against the employee based on this
disruption and not in retaliation for the speech. See
lla
Waters, 114 S.Ct. at 1887, 1889-91. By stressing that
actual disruption is not required, Waters pulls a crucial
support column out from under our earlier Jeffries
opinion, We are not constrained to hold under Waters
that the defendants did not violate Jeffries’ free speech
rights if: (1) it was reasonable for them to believe that
the Albany speech would disrupt CUNY operations; (2)
the potential interference with CUNY operations out-
weighed the First Amendment value of the Albany
speech; and (3) they demoted Jeffries because they
feared the ramifications for CUNY, or, at least, for rea-
sons wholly unrelated to the Albany speech.
In the district court the jury’s central finding was that
all 15 defendants were “motivated’’ to demote Jeffries
by a “reasonable expectation” that the Albany speech
would harm CUNY. This jury finding establishes that
because the defendants were motivated by a reasonable
prediction of disruption, they did not demote him for an
improper retaliatory motive. Moreover, we hold that, as
a matter of law, this potential disruptiveness was enough
to outweigh whatever First Amendment value the Albany
speech might have had. Under Waters, then, the jury’s
finding, if it stood alone, would suffice to show that
none of the defendants violated Jeffries’ free speech
rights.
This finding does not stand alone, however, In response
to later waves of interrogatories, the jury found that the
six Harleston defendants (but—significantly—not the
other nine) demoted Jeffries because of the Albany
speech, and that they would not have done so if Jeffries
had not given the speech. The jury then decided that the
six Harleston defendants “acted with malicious intent to
violate the plaintiff’s rights . . . or with malicious intent
12a
to unlawfully injure him, or... with a callous or reckless
disregard of the plaintiff’s First Amendment rights.”
These later findings are tantamount to a determination
that the six Harleston defendants demoted Jeffries in
retaliation for his speech, and not to protect CUNY
from the ramifications of his speech. See Rankin, 483
U.S. at 384 (“Vigilance is necessary to ensure that public
employers do not use authority over employees to silence
discourse, not because it hampers public functions but
simply because superiors disagree with the content of
employees’ speech.’’).
As we said in the original Jeffnes opinion, we cannot
harmonize the jury’s earlier finding with the later ones.
See Jeffries, 21 F.3d at 1250. If, as the first finding has
it, all the defendants demoted Jeffries because they
reasonably believed the speech would harm CUNY, the
demotion was not retaliatory. If, as the later findings
have it, six of the defendants acted against Jeffries out
of malice or reckless disregard for his rights, those six
were not motivated by a reasonable belief that the speech
would harm CUNY. As to these six defendants, these
findings are “hopelessly irreconcilable,” id., and would
ordinarily require a remand for a new trial. See Brooks v.
Brattleboro Mem. Hosp., 958 F.2d 525, 529-30 (2d Cir.
1992) (remand required where material jury responses
cannot be read together rationally).
No retrial is needed here, however, because elementary
principles of causation compel the conclusion that
Jeffries’ First Amendment rights were not violated. See
42 U.S.C. §1983 (section 1983 relief only available if
the plaintiff was deprived of federal rights). The jury
found that at least nine of the defendants, a clear major-
ity, limited Jeffries’ term because they expected his
13a
speech would harm CUNY (and not for invidious mo-
tives), and that this expectation was reasonable.
There is, moreover, no reasonable possibility that the
six Harleston defendants tainted the vote with whatever
retaliatory motives they may have had. Three of the six
Harleston defendants voted against the proposal to limit
Jeffries’ term to one year; two of them were not Trustees,
and thus could not vote; and one abstained. While Harle-
ston and Reynolds were instrumental in putting the one-
term issue on the Board’s agenda, see id. at 1247, and
may indeed have done so to punish Jeffries, the nine
votes based on legitimate grounds constitute a supersed-
ing cause breaking the causal chain between the tainted
motives (of Harleston and Reynolds) and the decision to
limit Jeffries’ term. See Gutierrez-Rodriquez v. Carta-
gena, 882 F.2d 553, 561 (lst Cir. 1989) (superseding
causes relieve defendants of section 1983 liability). And,
to whatever extent any of the Harleston defendants
inveighed against Jeffries and his speech at the Board
meetings, the jury expressly found that these lamenta-
tions did not affect the nine Trustee defendants who
based their votes on a reasonable expectation of harm.
Thus, the motives of the Harleston defendants—whatever
they were—did not cause a cognizable injury to Jeffries.
Finally, we note that an amicus curiae argues that we
should not apply Waters at all because Jeffries, as a
faculty member in a public university, deserves greater
protection from state interference with his speech than
did the nurse in Waters who complained about the
obstetrics division of the hospital. We recognize that
academic freedom is an important First Amendment
concern. See, e.g., Keytshian v. Board of Regents, 385
U.S. 589, 603 (1967) (“The vigilant protection of con-
stitutional freedoms is nowhere more vital than in the
l4a
community of American schools,”’). Jeffries’ academic
freedom, however, has not been infringed here. As we
held in the earlier Jeffries, and as Jeffries himself has
argued, the position of department chair at CUNY is
ministerial, and provides no greater public contact than
an ordinary professorship. See Jeffries, 21 F.3d at 1247.
Jeffries is still a tenured professor at CUNY, and the
defendants have not sought to silence him, or otherwise
limit his access to the “marketplace of ideas” in the
classroom. See Keyishian, 385 U.S. at 603.
CONCLUSION
Because the only defendants who voted in favor of
limiting Jeffries’ term did so constitutionally, and because
the Harleston defendants did not contribute to the
decision to limit Jeffries’ term, we conclude that Jeffries
has not suffered a deprivation of his constitutional
rights.
We reverse the judgment of the district court, and
remand with instructions to enter judgment for the
defendants.
REVERSED and REMANDED with instructions to
enter judgment for the defendants.
15a
APPENDIX B
SUPREME COURT OF THE UNITED STATES
No. 94-112
BERNARD HARLESTON, PRESIDENT,
CITY COLLEGE OF NEW YORK, ET AL.,
Petitioners
v.
LEONARD JEFFRIES
ON WRIT OF CERTIORARI to the United States
Court of Appeals for the Second Circuit.
THIS CAUSE having been submitted on the petition
for a writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and
adjudged by this Court that the judgment of the above
court in this cause is vacated and the case is remanded to
the United States Court of Appeals for the Second Cir-
cuit for further consideration in light of Waters v. Chur-
chill, 511 U.S. __ (1994),
IT IS FURTHER ORDERED that the petitioners,
Bernard Harleston, President, City College of New York,
et al. recover from Leonard Jeffries Three Hundred
Dollars ($300.00) for their costs herein expended.
November 14, 1994
Clerk’s costs: $300.00
16a
APPENDIX C
Law Offices of Joseph Fleming
59 John Street, 8th Floor
New York, New York 10038
Telephone Facsimile
(212) 385-8036 (212) 406-2045
By Hand
January 13, 1995
George Lange, III
Clerk
United States Court of Appeals
for the Second Circuit
Foley Square
New York, New York 10007
Re: Jeffries v. Harleston
93-7876
Dear Mr. Lange:
I represent Dr. Leonard Jeffries, Jr. (“‘Jeffries’”), the
Plaintiff-Appellee in the subject appeal.
The parties have been directed to submit a letter brief,
limited to the applicability of Waters v. Churchill, 114
S.Ct. 1878 (1994), to the issues presented by the appeal
of the Defendants-Appellants (hereinafter referred to as
“CUNY’’). The following is submitted in accordance with
the Court’s directive.
The Supreme Court has asked this Court to reconsider
this matter in light of the Waters decision. A proper
reconsideration must be supported by the facts that con-
17a
stitute the true parameters of the events and circum-
stances that have shaped this case. This will not be pos-
sible if the Court allows itself to be unduly influenced by
CUNY’s creative and subtle misinterpretation of those
events and circumstances. In its Petition for a Writ,
CUNY has described one of the questions presented as:
1. Whether the First Amendment requires adminis-
trators to retain, in a position of leadership, a person
who has engaged in a speech containing hateful,
poisonous and reprehensible comments, reasonably
believed by the administrators to be potentially
harmful to the university, as well as thuggish con-
duct.
For the reasons discussed below, this statement of the
question presented on appeal twists the facts as found by
the jury, confirmed by the trial court after trial, and,
thereafter, affirmed by this Court of Appeals. We are
compelled, therefore, to first address CUNY’s efforts to
reshape the facts.
CUNY saw Waters as its last best hope, and now utilizes
Waters as the bedrock of its argument. The true and
relevant facts in Waters, that Waters is clearly distinguish-
able. It was thus necessary for CUNY to create a new set
of facts, only loosely related to reality, and present them
as if they were proven at trial. Specifically, in CUNY’s
effort to conform to the parameters of Waters it used the
term “leadership position” to describe Jeffries’ role as
Chairman of the Black Studies Department (the “Depart-
ment”’). This intended to define Jeffries’ role as one that
encompasses a University wide or College wide respon-
sibility. This is misleading and inaccurate. CUNY has
constructed an argument that depends on the Court’s
acceptance of the premise that Jeffries, as Chair, occupies
a position of responsibility and authority, outside of the
18a
Department, to the extent that he is a representative and
a spokesperson for the University. The simple fact is that
neither Jeffries nor any of the other Chairpersons within
the CUNY system are managerial employees, they are not
spokespersons for CUNY or the City College of New
York (“CCNY’’), and they exercise no authority what-
soever on a college wide or university wide basis. The
language of the CUNY By-Laws clearly and simply
describes a Chairpersons role as that of leader, spokes-
person and advocate for the University or the College.
(By-Laws, Article IX, Section 9.3.) Accordingly, Jeffries’
duty and function is to represent the interests of the
Department. In a CUNY system containing 21 cclleges,
with more than 208,000 students (from every existing
ethnic background culture and political thought), 596
managerial administrators and 9,100 faculty members,
Jeffries is one of approximately 595 Chairpersons,' the
vast majority of whom toil in relative but honorable
obscurity because their positions are ministerial and do
not require public interaction beyond the internal CUNY
community.
Unlike most of his colleagues, Jeffries has public recog-
nition, not because of his position as Chair of the Depart-
ment, but rather because of his independent work in the
field of public education and Black and Africana Studies.
This work was done outside of and apart from his minis-
terial duties as Chair of the Department. His public
personae, therefore, is not a result of or related to his
association with CUNY or even the Department. As a
private citizen Jeffries has been a prominent figure and
voice in the very heated national debate over curriculum
reform. That debate has pitted different groups against
| Source: Peterson’s College Guide,
19a
each other, including Blacks and Jews. As unpleasant and
as undesirable as the topic of conflict between Blacks
and Jews may be, it is a fixture in our national landscape
of debate. According to the First Amendment, Jeffries
has every right as a citizen of this country to address the
issue of curriculum as it relates to the various conflicts
surrounding curriculum reform and to express his views
on the roles various people have played in the history of
the world and how that relates to teaching and instruc-
tion. CUNY is asking this Court to use Waters to remove
that right from Jeffries.
As this Court reconsiders CUNY’s appeal in light of
Waters, it must be conscious of the essential facts, not as
designed and presented by CUNY to suit its needs, but
as presented and accepted at the trial of this matter, and
as can be reasonably inferred therefrom. The essential
facts are:
1. That the speech in question (the “Speech”) was
delivered by Jeffries outside of the scope of his employ-
ment, and contained no criticism of CUNY or CUNY’s
policies or practices related to its public function;
2. That Jeffries made the Speech in his capacity as a
scholar and a private citizen;
3. That the Speech was made during Jeffries’ summer
vacation, in no way associated with any function or
activity of the Department, CCNY or the University ;
4. That the location of the Speech was more than
one hundred fifty miles from his place of employment;
5. That the Speech was made before a group of
American citizens who were intensely interested in
everything Jeffries had to say and who gave him an ova-
tion upon the completion of the Speech.
-
20a
6. That notwithstanding the concern of some other
Americans who found the Speech offensive, the Ameri-
can citizens to whom Jeffries spoke, and many other
Americans who heard or read the Speech thereafter,
were not offended.
The latter fact demonstrates the reason the First Amend-
ment is such an important part of our constitutional
rights. Here, we are confronted with competing idealo-
gies, interests and sensibilities. We are also confronted
with different interpretations of the validity and even
the intent of the words spoken by Jeffries. What is
important here is that Jeffries spoke as a private citizen/
scholar, on issues that are at the center of an academic
maelstrom, espousing and interpreting years of research
and experience. As a Professor of Black and Africana
History and a proponent of theories, visions and conclu-
sions not popular with the political and academic main-
stream, Jeffries is the very person the Constitution and
the laws of this nation are intended to protect.
With the foregoing in mind, an examination of Waters
must lead this Court to the conclusion that Waters is
not applicable to this case and should not lead this Court
to any conclusion except to re-affirm its prior decision.
While Waters has opened the exit door a little wider for
public employees, it is still consistent with its predeces-
sors including Connick v. Meyers, 461 U.S. 138 (1983);
Hall v. Ford, 856 F.2nd 255 (D.C. Circuit 1988); McMul-
len v. Carson, 754 F.2nd 936 (11th Circuit 1985); Dart-
land v. Metropolitan Dade County, 866 F.2nd 1321
(11th Cir. 1989); and, Mings v. Department of Justice,
813 F.2nd 384 (Fed. Cir. 1987), to name but a few. In
each of these cases, as in Waters, the speech in question
was either a direct criticism of the employer or a practice
or policy of the employer. In each of these cases, the
2la
Court found that the speech had an impact on the effec-
tive and efficient operation of the employer or the con-
fidence or morale of other employees to the extent that
it affected their ability or willingness to work, or, as in
McMullen, which involves a law enforcement employee
who announced his active membership in the Ku Klux
Klan, that the speech in question created a situation
directly and negatively impacting the ability of the
employer to effectively perform the public service it
was responsible for providing.
What Waters did, through a deeply divided court, was to
expand the concept of reasonable expectation, and pro-
vide a means by which the Government, as employer,
could protect the workplace from disruption when the
speech of an employee contains utterances that threaten,
or can reasonably be expected to threaten, the ability
of the Government, as employer, to properly function.
In the wake of the Speech, only the constant effort on the
part of CUNY to appease a hungry press and oppor-
tunistic politicians, troubled the other wise firm current
that always flows through an academic environment.
The Speech itself, while it certainly generated heated,
sometimes rowdy, sometimes caustic debate across
college campuses and talk show stages around the coun-
try, did not disrupt or threaten to disrupt CUNY’s
ability to perform its public function. (Notwithstanding
CUNY’s effort to impose its political and social idealogy
as its public function, its true function is to provide an
education which includes an examination of all views and
ideas, and requires frequent shopping trips to what
should be a very hectic market place of ideas. This func-
tion was not hampered by the Speech.) Nor did the
Speech harm CUNY in any way. No evidence was pre-
sented at the trial, which took place almost two years
22a
after the Speech, of any refusal or failure of any student,
faculty member or administrator to work with Jeffries
or to work with or within CUNY, as a result of the
Speech. Nor was there any evidence of any reduction in
enrollment. In fact, enrollment has steadily increased in
the Department, in the College and throughout the
University since the Speech. University-wide, student
enrollment has gone from 199,554 during the 1991-92
academic year (the year the Speech became a public
issue) to 202,531 during the 1992-1993 academic year.
Student enrollment for the 1993-94 academic year, the
year following Jeffries’ highly publicized and successful
litigation against CUNY, and his subsequent reinstate-
ment as Chair of his Department, jumped to 208,000.”
When we examine Waters, we find no relation to the
facts underlying the case before this Court for recon-
sideration. In Waters, a nurse is alleged to have spoken
ill of her employer, a public hospital, and its programs.
As a consequence of her speech, the nurse was termin-
ated from her employment. The Supreme Court upheld
her firing in the face of her argument that she was being
punished by the government because of her speech,
concluding that the employee was properly discharged
because the discharge was based on that part of her
speech that was disruptive and not on a matter of public
concern. (By contrast, the parts of the Speech causing
the most uproar related to Jeffries’ statements about the
roles of Jews in the slave trade and Hollywood. These
subjects were found, as a matter of law, to be clearly
matters of public concern by the trial court.
Based on the Court’s rationale in deciding Waters as it
did, we must ask how far Waters should reach? Should
2 Source: City University of New York, as reported by the
New York Times, January 9, 1994.
23a
it relate to speech that does not involve or affect the
function of the employer or the duties of the employee?
Should it be permitted to allow a dormant institution to
reach one hundred and fifty miles into the private life of
an employee whose speech happened to be recorded and
then given public life by a press with an agenda? We
should not be prepared to apply Waters to this case, to
do so would dampen the spirit and the intent of the
First Amendment, and threaten the right of every public
employee who has an opinion that may be unpopular, to
express that opinion free from fear of reprisal. To apply
Waters to this case would permit the Government as
employer to censor millions of American citizens whose
speech is viewed as unpopular but which speech has not
been proven to be disruptive to the work place and which
cannot reasonably be expected to be disruptive. Waters
involved speech that directly affected the function of the
employer, and related to the duties of the employee. It
should not be expanded to cover speech, such as the
Speech, that is unrelated to the function of the employer,
and in no way connected to the duties of the employee.
The factual distinctions are many, and they are stark. The
leap this Court is being asked to make between Waters
and Jeffries is dangerous and will have a chilling effect
on public employees everywhere. With the few excep-
tions enunciated in the cases previously cited herein,
individuals, even those employed by the government,
have a right to speak their minds on matters of public
concern. This is especially so when the issue is, as it
really is in this case, a matter of political and cultural
disagreement. In reality, there is no disruption as a
consequence of the Speech, there is no threat of disrup-
tion. There is no argument, as there was in Waters, about
what Jeffries said or whether he said it. There is really
~
24a
no question as to whether there existed, at the time
CUNY acted against Jeffries, violating his First Amend-
ment rights, any reasonable expectation of harm. In
Waters, as in Connick, the Court determined that a rea-
sonable expectation is a sufficient basis for termination
of an employee, even where no actual disruption has been
or can be shown. Waters requires, however, that the
government act in good faith and that when judging the
employer’s acts the Court “should look to the facts as |
the employer reasonably found them to be,” Waters,
114 S.Ct. at 1889.
In Jeffries, the facts as CUNY reasonably found them to
be at the time it took action to strip Jeffries of his Chair-
manship, were, that he had, for eight months following
the Speech, performed his duties as chair unaffected by
the Speech, and that the Department, the College and
the University had not been harmed in any way as a
result of the Speech. It was also a fact that whatever
expectation CUNY had of harm or disruption, reasonable
or otherwise, had long since given way to reality. That
reality was that there was no harm and no threat of harm.
Most importantly, it must be noted, that notwithstanding
the non-existence of that harm or the threat of harm,
CUNY pushed forward with its plan to oust Jeffries.
CUNY acted in bad faith, ignoring the facts as it reason-
ably found them to be and punished Jeffries for his
speech simply because those in power disagreed with
him. These individuals, exercising their power as public
officials, were engaged in an ideological and political
response to Jeffries speech. They used their power and
authority as government officials to impose their ideolog-
ical and political preferences upon Jeffries and to serve
chilling notice upon others that if they expressed their
views they too could be punished.
~~ a ee eS ee eee Oe
;
25a
We should not be fooled by CUNY’s pious reliance upon
its defined “‘mission.”’ It should be noted that a recent
appearance by Professor Michael Levin, a City College
professor and employee of CUNY, on a nationally syndi-
cated talk show during which he freely espoused his
racist views about the criminality and inferiority of
Blacks, was not met by even a whimper from the Uni-
versity, the College, the press, or the politicians. This is
so because the Americans most offended by Levin’s
statements are without the power and the access to the
media to express their outrage. The relative ability to -
register your disagreement with the speech of another
should not be the measure of the Court’s intervention in
the free exercise of one’s Constitutional rights. In Levin’s
case, his recent speech was not attacked by CUNY even
though it was contrary to CUNY’s “mission” as presented
to this Court in defense of CUNY’s actions against
Jeffries. As this Court is aware, CUNY has a history
with Levin based on its unsuccessful attempt to take
action against him because of statements he made some
years ago. It is interesting to note that CUNY did not
appeal this Court’s decision to affirm Levin’s rights as
determined by the District Court. It is of further interest
to note that CUNY has taken no steps to counter Levin’s
continued statements against Blacks following the pro-
ceedings in this Court. Levin v. Harleston, 770 F.Supp.
895 (S.D.N.Y. 1991) aff’d in part and vacated in part,
966 F.2d 85 (2d Cir. 1992). It would appear, therefore,
that Levin’s speech is protected and unabridged because
he does not offend to the extent Dr. Jeffries does, those
who happen to be in power at this point in time. This
Court should not ebb and flow with shifts and changes in
power, philosophy, and ideology, but should stand
steadfast in protecting the First Amendment freedoms
of all of our citizens.
26a
Waters does not stand for the philosophy CUNY would
have this Court impose upon this case. Waters did not
contemplate intruding in the realm of academic freedom.
Yes, there is a clear and distinct element of academic
freedom running through the heart of this matter. More
than simply an employer, CUNY is an academic institu-
tion of higher learning. The debate in which Jeffries was
engaged as he gave the Speech, was one that is at the
center of academic circles throughout America. He spoke
as one sharing and reacting to historical information and
its impact on the poltical, economic and social well
being of a large segment of the population of the United
States. It is well established, that academic freedom is a
special concern of the First Amendment. Keyishian v.
Board of Regents of University of New York, 385 U.S.
589, 87 S.Ct. 675 (1967). By applying Waters to Jeffries,
the Court would be ignoring Keyishian and its progeny.
We cannot, if we truly wish to preserve the freedoms
available in our society emasculate the very document
that protects those freedoms. Sometimes, the only thing
that stands between all of us and anarchy are the ideals
embodied in our Constitution and its Amendments.
Waters may have opened the door a little wider to allow
the government to act against employees for their speech.
We do not believe, however, that it was the intention of
the Justices of the Supreme Court who participated in
one part or another of the Waters decision, to open the
door so wide that every case should go rushing in.
Certainly there is no room in Waters for this case, and
accordingly, on reconsideration, the judgment of the
District Court should remain affirmed.
27a
Respectfully Submitted,
/s/Joseph Fleming, Esq.
Joseph Fleming, Esq.
Attorney for Dr. Leonard Jeffries, Jx.
Plaintiff-Appellee
JF-9542
cc: Attorney General of the
State of New York
Attorney for Defendants-Appellants
28a
APPENDIX D
State of New York
Department of Law
120 Broadway
New York, N.Y. 10271
(212) 416-8601
Dennis C. Vacco
Attorney General
Kathie Ann Whipple
Acting Bureau Chief
Litigation Bureau January 13, 1995
Hon. Ellsworth A. Van Graafeiland, Circuit Judge
Hon. Joseph M. McLaughlin, Circuit Judge
Hon. Ellen B. Burns, District Judge
United States Court of Appeals
United States Courthouse
Foley Square
New York, New York 10007
Re: Jeffries v. Harleston
Dkt. No. 93-7876
Honorable Judges:
This letter responds to the Court’s Order, dated
December 23, 1994, directing the parties to address the
applicability of the Supreme Court’s decision in Waters
v. Churchill, 511 U.S. _, 114 S.Ct. 1878 (1994), to
the instant appeal. For the reasons set forth below,
Waters requires an outright reversal of the district court’s
decision. Even if the Court concludes that a new trial is
ites a enthiiinia
29a
necessary, however, Waters requires, at a minimum, a
reversal of the district court’s decision denying defen-
dants qualified immunity from liability in damages and
a remand with appropriate instructions concerning the
applicable legal principles.
Waters Requires A Reversal Here
In Waters, the Supreme Court consciously and deliber-
ately rearticulated the principles which control when
action taken by a public employer with respect to one
of its employees is alleged to implicate First Amendment
considerations. The Court started from the premise that
“the government as employer . . . has far broader powers
than does the government as sovereign.” 114 S.Ct. at
1886. Although the Court acknowledge, quoting Cohen
v. California, 403 U.S. 15, 24-25 (1971), a decision over-
turning a conviction for wearing a jacket bearing a
scatological slogan in a courthouse, that “[t]he First
Amendment demands a tolerance of ‘verbal tumult,
discord, and even offensive utterance,’ as ‘necessary side
effects of . . . the process of open debate,’” the Court
also observed, as one of several examples, that it had
“never expressed doubt that a government employer may
bar its employees from using Mr. Cohen’s offensive
utterance to members of the public, or to people with
whom they work.” 114 S.Ct. at 1886. Similarly, the
Court observed that “a public employer may, consis-
tently with the First Amendment, prohibit its employees
from being ‘rude to customers,’ a standard almost cer-
tainly too vague when applied to the public at large.”
Id. at 1886-87.
In addressing the nature of the showing the public
employer is required to make, in order to avoid liability,
the Court observed that it has:
30a
consistently given greater deference to government
predictions of harm used to justify restriction of
employee speech than to predictions of harm used
to justify restrictions on the speech of the public
at large. Few of the examples we have discussed
involve tangible, present interference with the
agency’s operation. The danger in them is mostly
speculative.
Id. at 1887. The Court further noted that it has given
“substantial weight to government employers’ reasonable
predictions of disruption, even when the speech involved
is on a matter of public concern, and even though when
the government is acting as sovereign our review of
legislative predictions of harm is considerably less defer-
ential.”” Jd. Indeed, the Court instructed that, even when
speech touches substantially on matters of public con-
cern, the employer need only make “a substantial show-
ing that the speech is, in fact, #kely to be disruptive
before it may be punished.” Jd. (emphasis supplied).
la plurality of the Court concluded that if the supervisors
reasonably believe that the employee’s speech, as reported to them,
would be disruptive, then they were entitled to prevail in the Pick-
ering balancing process (see Pickering v. Board of Education, 391
U.S. 563 [1968]), even if the employer was mistaken as to the
true facts. Waters, 114 S.Ct. at 1890. Although the four justices
who joined in the plurality opinion constituted less than a majority,
the plurality opinion will govern future cases, because three con-
curring justices concluded that the defendants’ actual beliefs
should be dispositive, regardless of the “reasonableness’”’ of such
beliefs. Jd. at 1895. Thus, as Justice Souter explained, in a separate
concurring opinion, “A majority of the Court agrees that employ-
ers whose conduct survives the plurality’s reasonableness test
cannot be held constitutionally liable (assuming the absence of
pretext)... .” Jd. at 1893.
The Court remanded in Waters, despite the majority’s conclu-
sion that the defendants could legally have terminated the plaintiff,
[footnote continued]
2 ee ee ee ee ee ee ae ee a ee Pe,
3la
It is clear, given Waters, that the legal conclusions
underlying the result here, that “First Amendment pro-
tection . . . extends to all speech on public matters, no
matter how vulgar or misguided,” Jeffries v. Harleston,
21 F.3d 1238, 1245-46 (2d Cir. 1994), and that the
defendants bore a burden of persuading the jury not
merely that they were reasonably concerned about the
impact of the speech but that the speech in question
actually ‘‘caused substantial disruption,” id. at 1246, are
now untenable. Even assuming, arguendo, that this Court,
and the court below, were correct in concluding that
Jeffries’ speech touched substantially on matters of
public concern (see infra), defendants were required only
to make a substantial showing that harm as a result of
that speech was likely, not a showing of actual harm, or
“substantial disruption,” as this Circuit held.
The Waters standard was clearly met here. The jury
found that defendants reasonably believed that Jeffries’
speech would be disruptive to the University. (A 130)
The fact that the jury did not also find that the predicted
harm actually occurred is irrelevant. The court below
should have “look[ed] to the facts as [defendants] rea-
sonably found them to be,” at the time of their actions,
Waters, 114 S.Ct. at 1889, not as the jury ultimately
found them to be, more than a year later, and should
based on her remarks as reported to them, for a determination as
to whether the plaintiff was “actually fired because of [her]
statements, or because of something else,” id. at 1891, a finding
the district court had never made. Here, in contrast, the jury has
found both that the defendants were actually motivated by con-
cerns about the impact of the speech and that these concerns
were reasonable. (A 130) Plaintiff never cross-appealed or other-
wise questioned this finding, and is therefore bound by it, insofar
as it is relevant to liability. Accordingly, this Court should not
remand for new fact-finding in the district court.
32a
have given substantial weight to defendants‘ reasonable
predictions of disruption. Otherwise, “[t] he government
manager would have to ask not what conclusions she, as
an experienced professional, can draw from the circum-
stances, but rather what conclusions a jury would later
draw,” Waters, 114 S.Ct. at 1888, which could often
turn out (and here turned out) to be two different
things.
At trial, defendants introduced uncontroverted evi-
dence of the adverse reactions to Jeffries’ speech. For
example, defendants established that various of the
colleagues with whom he could be expected to interact
at The City College were offended by the speech (EA
19, 22, 46), that various of his supervisors lost con-
fidence in his ability to act as Chair and serve as a spokes-
person for University interests (A 442-43, 485-86, 510-
11, 541-43, 618-27, 633-35, 74344; EA 132, 142,
181-82), and that defendants received negative communi-
cations from alumni and others as a result of the speech
(A 442-43, 499, 633-34, 743-44). The district court
itself found that Jeffries’ ethnic slurs “provoked a media
uproar” (A 180), were “egregiously offensive and destruc-
tive” (A 219), and evoked “widespread dismay and
alarm” (id.). Thus, any reasonable jury would have been
required to conclude that defendants had made a sub-
stantial showing that harm to the University was likely
here.
Moreover, the district court found that Jeffries engaged
in several episodes of “‘thuggish” conduct during the
review period (A 214-15). This conduct, combined with
the adverse reactions to the speech observed by defen-
dants, further indicated that reappointing Jeffries as
Chair would be likely to produce disruption. Given all of
these considerations, and the clarification provided by
33a
Waters, it is evident that it was error to conclude that
Jeffries’ interest outweighed the defendants’ in the instant
case. That holding should now be reversed and Jeffries’
claims for declaratory relief, punitive damages, and
reinstatement dismissed.
At A Minimum, Waters Requires A New Trial
At the commencement of trial in the instant case,
defendants argued that some portions of plaintiff’s July
20, 1991 speech, i.e., Jeffries’ personal attacks on col-
leagues, including other City University professors, and
his derisive references to Jews, Italians, and Caucasians
in general, were not matters of public concern and that
a finding of reliance solely upon such remarks could
not trigger constitutional liability. The district court,
however, ruled that because Jeffries’ speech was pre-
dominantly on matters of public concern, it was irrele-
vant whether defendants’ actions were caused solely by
particular parts of his remarks, even if those parts, stand-
ing alone, would not have constituted protected speech.
(A 85-86)
Waters flatly repudiates that view. In Waters, the
Supreme Court explicitly observed that:
So long as Davis and Waters discharged Churchill
only for the part of the speech that was either not
on a matter of public concern, or on a matter of
public concern but disruptive, it is irrelevant whether
the rest of the speech was, unbeknownst to them,
both on a matter of public concern and nondisrup-
tive. The Connick test [see Connick v. Myers, 461
U.S. 138 (1983)] is to be applied to the speech for
which Churchill was fired. [Citations.] An employee
who makes an unprotected statement is not im-
~
34a
munized from discipline by the fact that this state-
ment is surrounded by protected statements.
114 S.Ct. at 1891 (emphasis supplied).
As noted above, Waters establishes that a government
employer may discipline or terminate an employee for
speech that would otherwise have the fullest protection
under the First Amendment, and may do so using stand-
ards, such as rudeness or offensiveness, that would be
inappropriate in other contexts. The remarks at issue
here contain precisely the sort of rude and offensive
utterances to which the Supreme Court referred. A find-
ing by the jury below that the defendants who relied on
the speech had been motivated solely by Jeffries’ per-
sonal attacks or ethnic slurs would have been dispositive
in defendants’ favor, even without Pickering balancing.
Thus, defendants are, at the least, entitled to a fair oppor-
tunity to establish that it was Jeffries’ invective, and not
his substantive comments about the multicultural curricu-
lum, which caused the review resulting in the rejection
of his reappointment to a three-year term as Chair of the
Black Studies Department.
Waters Requires A Grant Of Qualified Immunity
If this Court concludes that a new trial is necessary, it
must nevertheless reverse the decision below on the issue
of defendants’ entitlement to qualified immunity, in light
of Waters. In denying qualified immunity on the original
appeal, this Court held that it was clearly established
that, absent a showing of actual disruption, “a public
employer may not sanction an employee for speaking
on issues of social or political concern.” Jeffries v.
Harleston, 21 F.3d at 1248. Waters establishes that the
articulation of the law was erroneous. Now that it is clear
ae ae —_s<
35a
that a finding of actual harm is not required, and given
the particularized balancing which the Court has said, in
Connick and Waters, is required, qualified immunity is
completely appropriate here. Defendants should not be
held liable in damages, on the ground that the applicable
principle was clearly established in this Circuit, at the
time of defendants’ actions, where the Circuit’s formula-
tion of that principle has itself been rejected. Moreover,
defendants cannot fairly be expected to have applied
Pickering principles to the facts of this case, and known
the correct outcome, where the Circuit Courts of Appeals
have themselves encountered difficulties interpreting
and applying Pickering principles.
Accordingly, given Waters, defendants respectfully
request that the Court reverse the decision below in its
entirety. In the alternative, the Court should grant defen-
dants qualified immunity and remand for a new trial,
solely on declaratory and injunctive relief, and with
appropriate instructions concerning the application of
the principles articulated in Waters.
Respectfully submitted,
/s/Kathie Ann Whipple
Kathie Ann Whipple
cc: Joseph Fleming, Esq.
Kenneth S. Stern, Esq.
Sheldon D. Camhy, Esq.
36a
APPENDIX E
Law Offices of Joseph Fleming
59 John Street, 8th Floor
New York, New York 10038
Telephone Facsimile
(212) 385-8036 (212) 406-2045
BY HAND
January 17, 1995
George Lange, III
Clerk
United States Court of Appeals
for the Second Circuit
Foley Square, Room 1702
New York, New York 10007
Re: Jeffries v. Harleston
93-7876
Dear Mr. Lange:
This letter is respectfully submitted in reply to the Letter
Brief submitted by the Defendants (“CUNY”) regarding
the applicability of Waters to the instant appeal.
CUNY argues first, that Waters requires a reversal because
CUNY acted based on a reasonable fear of disruption.
CUNY cites, in initial support of its argument, the Court’s
reference to Cohen v. California, 403 U.S. 15 (1971).
Although the Court in Cohen protected the right of an
individual to engage in speech through the wearing of a
jacket bearing a scatological slogan in a courthouse,
CUNY finds comfort in the Court’s expression of the
87a
observation that notwithstanding the Court’s finding in
Cohen ‘“‘a government employer may bar its employees
from using Mr. Cohen’s offensive utterance to members
of the public, or to people with whom they work.” The
philosophy of the Court creating parameters for excep-
tions to the protection afforded to Cohen, should not
be applied to cases where a government employee’s
statements are not directed at the public in the course of
the employee’s employment. If we were to allow this,
the application would be dangerous, giving government
the ability to act against anyone whose utterance comes
to light and offends someone’s sensibilities. Are we to
remove Newt Gingrich, as House Speaker, because,
through the magic and intrusiveness of television, we
know that he is guilty of offensive utterances with
respect to the First Lady, and by reason of the nature of
the utterance, with respect to all women?
CUNY goes on to argue that its reasonable predictions of
disruption are its saving grace, and implies that it made a
substantial showing (a conclusion not supported by the
trial record), that it reasonably believed that the Speech
would be disruptive, and that it acted on that reasonable
belief. The key word here is “‘reasonable.” According to
Waters, reasonableness is measured as of the time of the
employer’s actions, based on what the employer knew,
in good faith, the facts to be at the time it acted. In
response to the Speech, if CUNY had taken immediate
steps to remove Jeffries from his . osition as Chair, during
the height of the onslaught from the media and poli-
ticians, and prior to the commencement of the fall
semester, it would be able to intelligently argue that it
acted based on an expectation of disrupticn. Under that
set of facts we would be confronted with a final outcome
resting only on a Pickering balancing test. This was not
the case, however, and we are left instead with a curious
38a
effort to place fiction over reality and allow CUNY’s
imagination to prevail over the facts as it knew them to
be at the time it acted against Jeffries. If this is so, we
must ask ourselves to define what the Court really means
when it speaks of expectations and predictions.
CUNY would have us define expectations and predictions
in perpetual terms, unconcerned with intervening reality.
CUNY, would have this Court ignore the fact that CUNY
conducted an investigation of the impact and the effect
of the Speech on Jeffries’ ability to perform his duties,
and on the impact of the Speech on the operation of the
Department, the College, and the University. Over an
eight (8) month period of time, CUNY found that the
Speech had not adversely affected any aspect of Jeffries’
ability to do his job, nor had it, in any adverse way,
affected the function of the Department, the College or
the University. Yet, CUNY stripped Jeffries of his
chairmanship, and it did so simply because its officers
and trustees, officials of the State of New York, dis-
agreed with the content of the Speech. This is the real
issue here, it’s personal. There is no noble effort on the
part of CUNY officials to protect the University from
the effects of disruptive utterances, but rather, there is
an effort to censor speech with which these government
officials do not agree. The issue of disruption and reason-
able expectation of disruption are simply a pretext for
the real motivation, to punish Jeffries because of the con-
tent of his Speech.
CUNY’s argument is replete with references to its expec-
tations, and refers to personal reactions to the Speech,
rather than its impact. These personal reactions, CUNY
argues, would lead any reasonable jury to conclude that
CUNY made a substantial showing that harm to the
University was likely. Certainly, the Speech was the
39a
subject of a media uproar or more appropriately, a media
frenzy, and, it had all of the ingredients of an open
debate (heaven forbid that this would exist on a college
campus), including, verbal tumult, discord, and utter-
ances from both sides of the issue, that were from time
to time considered offensive to one or the other. CUNY
believes that Waters is intended to restrict and limit the
debate, to have at least one side of the debate quieted,
if not silenced altogether. CUNY believes that Waters is
intended to snatch the voice of dissent from the throat
of the dissenter no matter where he speaks, be it within
or outside of the scope of his employment, especially if
that voice speaks with anger or passion, and certainly if
that voice dares to criticize those who have the power,
the resources and the vehicles to mount and sustain an
effort to punish the offending speaker.
All of CUNY’s arguments about disruption and likelihood
of disruption are without merit. What is important, in
the context of any comparison of the fundamentals of
Waters with Jeffries, is to determine to what extent
the Speech was related to or did in fact affect, any
aspect of Jeffries’ duties as an employee of CUNY.
The political differences at the center of the debate
between Jeffries and those who were angered by his
Speech existed between Jeffries and CUNY officials and
some of the CUNY staff, before the Speech. There was
no change in the way these people dealt with and felt
about Jeffries and his ideas after the Speech, and no real
disruptive change in the way in which Jeffries performed
his tasks or affected the Department, the College or the
University.
CUNY is without the honest ability to argue that it was,
at the time it acted against Jeffries, reasonably concerned
that Jeffries’ continued presence as chair or the fallout
40a
from his Speech, might cause disruption in the Depart-
ment, at the College or at the University. It must be
remembered that the Faculty of the Department clearly
expressed its support for Jeffries following the Speech.
Moreover, the Faculty Senate at the College took the
stance that Jeffries should not be punished for his Speech.
They voted this way because they realized that in their
world, ideas and controversy go hand in hand, and that
the result of mixing the two should be debate, protected
by the First Amendment and the concept of Academic
Freedom. They knew that if Jeffries can be punished
today they could be punished tomorrow. Similarly, the
American Association of University Professors has
expressed concern over the direction CUNY would have
this Court go in applying Waters in disposing of the
instant appeal. While within these groups, the Faculty
Senate and the Association of University Professors, there
is disagreement, even anger over some aspects of Jeffries’
speech, there is no desire on their part, to see the Con-
stitution trashed in an effort to punish him.
As to CUNY’s argument that the jury found that CUNY
“reasonably believed that Jeffries’ Speech would be dis-
ruptive to the University,” there is an over reliance upon
this aspect of the jury’s findings as CUNY ignores the rest
of the jury’s conclusions. What is relevant is that the jury
found that CUNY acted with malice and reckless dis-
regard for Jeffries’ First Amendment rights. These facts
struck this Court as inconsistent and led to the decision
to remand for a new trial on the issue of damages. We
would argue that it was not really inconsistent, as the
jury determined that CUNY’s initial response to the
Speech—the public condemnation, the investigation and
the temporary limitation on Jeffries’ term while the
investigation continued, was a reasonable response to a
4la
fear of disruption. When all of the facts were at the Jury’s
disposal, it was able to conclude that at the time CUNY
removed Jeffries as chair, the facts as CUNY reasonably
found them to be, eliminated any concern of disruption
and could not justify the action CUNY took.
With respect to the balance of CUNY’s arguments, we
would argue that Pickering is still good law and that when
applied to this case it requires a finding in favor of
Jeffries. The interest of the government as employer and
operator of an academic institution, whether measured
through the weight of disruption, or the weight of expec-
tation, does not outweigh the interest of the individual
academician in being able to freely express his ideas,
especially when those ideas are expressed as a private
citizen, outside of the scope of the individuals employ-
ment.
CUNY is content with establishing that it had a reason-
able fear of disruption based on its argument now
advanced, but not championed at trial, that certain of
Jeffries’ utterances were personal attacks or ethnic slurs.
There are many who did not find those remarks offen-
sive. (Certainly none of them were as mean spirited as
Newt Gingrich’s remark about Mrs. Clinton.) All of the
comments were made in the context of a free wheeling
discussion about issues of importance to a large segment
of our society, including a discussion about those in our
society who represent vocal and organized opposition to
that interest.
The debate in which Jeffries was engaged had always
been a caustic one, with barbs flying from both sides.
The tone and tenor of the debate, one in which Jeffries
was engaged as a private citizen and scholar, had been
set by the opposition when they began a relentless attack
on Jeffries following his involvement with the New York
42a
State Task Force on Excellence and Equity in Educa-
tion, through which he strongly criticized the bias in the
public school curriculum, thus, making him an instant
enemy of all who had a vested interest in maintaining
the status quo of that curriculum. Jeffries had no prob-
lem being anyone’s enemy, or engaging in raucous debate.
He does have a problem, as well all should, when the
government enters that debate and seeks to silence one
of the participants.
All that CUNY can truthfully argue is that its officials
were offended by the Speech and that rather than allow
free enterprise in the market place of ideas, they wanted
Jeffries punished as a consequence of the Speech. The
so-called ‘‘adverse reactions’ to the Speech are not in
themselves sufficient reason for Jeffries’ removal, even
under the liberal application of the rules enunciated in
Waters. They are merely the natural and probable conse-
quence of strong reaction to the expression of strong
opinions, i.e., lively, adamant and sometimes raucous and
caustic debate. CUNY is arguing that Waters be applied
here because there are groups within our society that
disagreed with Jeffries, and that there were individuals
within the University who disagreed with him. The
measuring stick that Waters requires this Court to use, is
not defined by whether or not some disagreed with Jef-
fries. If simple disagreement, no matter how vehement,
were sufficient to punish an employee who speaks his
or her mind while engaged in speech as a private citizen,
at a function wholly unrelated to his employment and
his duties and responsibilities to his employer, then,
eventually, no one employed by the government will be
safe, no one will find protection in the First Amend-
ment. If adverse reaction is the measure and if this case
ultimately stands for the ability of the government as
43a
employer to punish an employee when his speech has
had no effect, and will have no effect, on the govern-
ment’s function as employer, then every public em-
ployee who harbors and then expresses an idea that
evokes a strong reaction, would be subject to punish-
ment, and our First Amendment would be a shambles.
Under the argument advanced by CUNY, Martin Luther
King, Jr., as a government employee would be subject
to punishment because his ideas were initially unpopular
and provoked adverse reactions. So, too, would other
great Americans whose courage and conviction caused
them to speak out before their ideas were recognized
for their true value and relationship to the American
dream. On the other side, if they were all public em-
ployees, the likes of Strom Thurman, John Stennis,
George Wallace, Bob Grant, Rush Limbaugh, Newt
Gingrich, and, of course, CCNY Professor Michael Levin,
all of whom have offended, or do offend significant
portions of the American people, would, under the
precedent CUNY is asking be set in. this case, be subject
to punishment if those in power at the time of any of
their utterances, were offended by or disagreed with
their speech.
We must understand that while the point now is to get
Dr. Leonard Jeffries, Jr., at all costs, the price our society
will pay will be heavy. The blind rush to apply Waters
to Jeffries, is an emotional, political, and in some quarters,
a purely race-based response to something that our Con-
stitution tells us should be met with debate. (Jeffries is
an African American). We see the response in some
quarters as race based because African Americans have
long been subjected to racial slurs and derogatory state-
ments ‘rom public officials and government employees
in utterances that have no connection whatsoever to
44a
legitimate matters of public concern. Never, never have
we seen the type of intense, prolonged, concerted and
mean spirited response in any of those instances as we
see here. We have not seen this response at any time in
the past and we don’t see it today (i.e., as in the case of
Michael Levin, a Jewish professor at City College, who
appears on nationally syndicated talk shows, expousing
a philosophy of Black criminality and inferiority).
Years from now Jeffries will be the precedent to which
government as employer and individuals as government
employees will look for guidance. Will Jeffries stand for
the proposition that government, as employer, through
individuals acting under the color of their authority as
government officials can follow their employees into
their private lives and punish them if their speech falls
outside of certain boundaries of the employer’s sensi-
bilities? Will it stand for the proposition that academic
freedom no longer enjoys a special relationship to the
First Amendment? Or, will it stand for the proposition
that the First Amendment is not subject to the whims of
the politics and the emotions of the day. Only the latter
proposition will preserve and protect the First Amend-
ment. Any other response will begin an erosion that will
ultimately destroy it.
Respectfully submitted,
/s/ Joseph Fleming
Joseph Fleming
Attorney for Plaintiff-Appellee
Dr. Leonard Jeffries, Jr.
JF-9542
JF :tjh
cc: Attorney General of the
State of New York
45a
APPENDIX F
State of New York
Department of Law
120 Broadway
New York, N.Y. 10271
(212) 416-8601
Dennis C. Vacco
Attorney General
Kathie Ann Whipple
Acting Bureau Chief
Litigation Bureau
January 17, 1995
Hon. Ellsworth A. Van Graafeiland, Circuit Judge
Hon. Joseph M. McLaughlin, Circuit Judge
Hon. Ellen B. Burns, District Judge
United States Court of Appeals
United States Courthouse be ae
Foley Square
New York, New York 10007
Re: Jeffries v. Harleston
Dkt. No. 93-7876
Honorable Judges:
In his January 13, 1995 letter-brief (“Pitf. Let. Br.’’),
plaintiff has largely ignored this Court’s request that the
parties address the applicability of Waters to the instant
appeal, choosing instead to rehash arguments presented
on the original appeal and in his memorandum in, opposi-
46a
tion to defendants’ petition for a writ of certiorari.’ When
plaintiff finally addresses Waters, he asserts that the
facts there are different and that the holding of Waters
is thus distinguishable (Pltf. Let. Br. at 5), thereby imply-
ing that the balance of the Supreme Court’s opinion is
mere surplusage.
The short answer to plaintiff’s argument is that the
Supreme Court could easily have discerned distinguish-
ability itself. Had the Court believed that the distinctions
between the cases precluded the fruitful application of
the ideas expressed in Waters to the instant case, it would
presumably have simply denied the petition. By granting
the petition, vacating this Court’s decision, and remand-
ing the matter to this Court, with explicit instructions
to consider Waters, the Supreme Court signaled its desire
to have this Court reflect upon the principles articulated
therein and apply them in the instant appeal. Plaintiff’s
assertion that “‘[t]he leap this Court is being asked to
make between Waters and Jeffries is dangerous and will
have a chilling effect on public employees everywhere,”
Pitf. Let. Br. at 6, is similarly unavailing, where the
Supreme Court has directed this Court to reconsider its
decision in light of new authority.
! Plaintiff appears to suggest that the remand from the
Supreme Court was merely the result of some trickery on defen-
dants’ part, and not the product of reasoned analysis (Pitf. Let. Br.
at 1-4). The primary obstacle to this argument, apart from its
untruthfulness, is that plaintiff responded at length to defendants’
petition. Thus, this Court may safely assume that the Supreme
Court operated on the basis of full knowledge of the relevant
facts and law. In any event, the examples plaintiff cites do not
support his thesis. As plaintiff in Waters did not hold a “leader-
ship position,’ for example, it is clear that defendants did not
“use[ ] the term ‘leadership position’ to describe Jeffries’ role”
in an “effort to conform to the parameters of Waters,” as plaintiff
asserts (Pitf. Let. Br. at 2).
ee
47a
Plaintiff attempts to minimize Waters by referring to
the Supreme Court as “‘deeply divided.” (Pit{f. Let. Br.
at 4) Contrary to the impression left by plaintiff, how-
ever, and as noted in defendants’ main letter-brief, the
Waters court favored the defendant-supervisors by a
margin of seven to two. In addition to the four justices
who wrote the plurality opinion, three concurring jus-
tices would have gone further in recognizing a public
employer’s prerogatives by eliminating the requirement
that a defendant’s belief about the likelihood of harm be
reasonable.
Significantly, even plaintiff ultimately concedes that,
“*li]n Waters, as in Connick, the Court determined that
a reasonable expectation is a sufficient basis for termi-
nation of an employee, even where no actual disruption
has been or can be shown.” Pitf. Let. Br. at 6. Plaintiff
then goes on to say that “Waters requires, however, that
the government act in good faith and that when judging
the employer’s acts the Court ‘should look to the facts
as the employer reasonably found them to be,’ Waters,
114 S.Ct, 15 1889.” Pitf. Let. Br. at 6. Plaintiff appears
to have forgotten that this issue was resolved against
him. The six defendants held liable here were found by
the jury to have reasonably believed that Jeffries’ speech
would harm the University. Having failed to seek to
vacate that finding, either at the trial level or on appellate
review, plaintiff may not now recast to his own liking
“the facts as CUNY reasonably found them to be at the
time it took action” (Pitf. Let. Br. at 6-7) or seek to have
this Court recast those facts itself. Accordingly, plaintiff’s
assertions that defendants could not possibly have held
a reasonable belief that the speech would affect the Uni-
48a
versity (Pitf. Let. Br. at 4, 6) are simply not cognizable
by this Court at this juncture.
Plaintiff’s attempt to distinguish the instant case from
Waters and the cases cited in defendants’ main brief on
appeal, as not involving “‘a direct criticism of the employer
or a practice or policy of the empioyer” (Pitf. Let. Br.
at 4), also fails. First, nothing in Waters, or any of its
predecessors, suggests that only speech focused upon
criticism of supervisors can justify employment action.®
The test is whether the speech can reasonably be believed
by the employer to be likely to be disruptive. Speech
which, as here, brought discredit upon an institution and
seemed likely to make it more difficult to recruit stu-
dents and faculty, or maintain good working relation-
ships among existing students and faculty, is actionable
regardless of its target. In any event, Jeffries’ admitted
references to “the head Jew at City College” and “my
Jews at City College,” could readily be interpreted as
criticism.
Similarly, there is nothing in Waters, Hall v. Ford,
856 F.2d 255 (D.C. Cir. 1988), or any of the other
precedents cited by plaintiff to suggest that public uni-
versities are to be treated differently from other public
employers for the purposes of Pickering analysis. Key-
ishian v. Board of Regents, 385 U.S. 589 (1967), dealt
2 Plaintiff’s assertion that his speech did not have an actual
impact is irrelevant. As plaintiff himself admits, and as defendants
established in their main ietter-brief, Waters holds that a demon-
stration of actual impact is not a prerequisite to action against a
public employee on the basis of his speech.
3 McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985), which
was cited with approval in Rankin v. McPherson, 483 U.S. 378,
391 n.18 (1987), clearly did not involve criticism of supervisors.
49a
with the constitutionality of a State requirement that
faculty at a State university disclose whether they had
ever been members of a communist organization, not
Pickering balancing.*
Plaintiff’s letter contains a multitude of other inac-
curacies, which cannot all be addressed here.> Nowhere,
however, does plaintiff provide this Court with any basis
for avoiding the clear import of Waters, that defendants’
reasonable predictions of harm entitled them to a reversal
of the decision below or, at a minimum, a new trial,
with appropriate instructions, and qualified immunity.
Respectfully submitted,
/s/ Kathie Ann Whipple »
KATHIE ANN WHIPPLE
cc: Joseph Fleming, Esq.
Kenneth S. Stern, Esq.
Sheldon D. Camhy, Esq.
* Plaintiff's extra-legal arguments concerning Levin v. Harle-
ston, 770 F.Supp. 895 (S.D.N.Y. 1991), aff'd in part and vacated
in part, 966 F.2d 85 (2d Cir. 1992) (Pitf. Let. Br. at 7), should be
ignored. Levin involved a faculty member, not a chair, and was
decided on different facts, long before Waters.
*Plaintiff’s discussion of Jeffries’ role as Chair, for example
(Pitf. Let. Br. at 2), omits any reference to section 9.1c of the
Bylaws, the operative provision in a reappointment decision.
(EA151) Section 9.1c, contrary to plaintiff's representation,
explicitly contemplates a ‘‘college-wide”’ role for chairs.
50a
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 1993
No. 953
(Argued: January 21, 1994
Decided: April 18 1994)
Docket No. 93-7876
LEONARD JEFFRIES,
Plaintiff-Appellee,
BERNARD HARLESTON, individually and in
his official capacity as president of City College of
New York, W. ANN REYNOLDS, individually
and in her official capacity as Chancellor of
City University of New York, JAMES P. MURPHY,
EDITH B. EVERETT, HERMAN BADILLO,
SYLVIA BLOOM, GLADYS CARRION, LOUIS
C. CENCI, MICHAEL J. DEL GUIDICE, STANLEY
FINK, WILLIAM R. HOWARD, HAROLD M.
JACOBS, SUSAN MOORE MOUNE®., CALVIN
O. PRESSLEY, and THOMAS TAM, individually and
in their official capacities as Trustees of
City University of New York,
Defendants-Appellants,
:
5la
BLANCHE BERNSTEIN,
Defendant.
Before: VAN GRAAFEILAND and McLAUGHLIN,
Circuit Judges, and BURNS, District Judge. *
Appeal from a judgment of the United States District
Court for the Southern District of New York (Conboy,
J.). Following a jury verdict in favor of a controversial
professor at City College of New York, the district court
found that defendant university officials violated his First
Amendment rights by limiting his term as Black Studies
department chairman, and that defendants’ acts were
unprotected by qualified immunity. The district court
ordered defendants to reinstate the professor as depart-
ment chairman, and awarded punitive damages against six
defendants.
Held: defendants did violate the professor’s First
Amendment rights; defendants were not shielded by im-
munity; and reinstatement was an appropriate remedy.
We find inconsistencies in the jury’s special verdict
responses and we vacate the punitive damage awards and
remand for new trial solely on that issue.
AFFIRMED in part, VACATED in part, and RE-
MANDED.
KATHIE ANN WHIPPLE, Deputy
Bureau Chief, Office of the Attorney
General of the State of New York,
(Robert Abrams, Attorney General
of the State of New York, Jerry
*Honorable Ellen Bree Burns, of the United States District
Court for the District of Connecticut, sitting by designation.
52a
Boone, Solicitor General of the State
of New York, Clement Colucci,
Assistant Attorney General, Roy P.
Moskowitz, Assistant General Coun-
sel to the City University of New
York, of counsel) for
Defendants-Appellants.
JOSEPH FLEMING, New York, NY
(Melinda E. Weekes, Debra Ann
Galloway, New York, NY, of coun-
sel) for Plaintiff-Appellee.
Sheldon D. Camhy, Adrian Zucker-
man, Lawrence A. Steckman, Camhy
Karlinsky & Stein, New York, NY,
Robert A. Machleder, New York
Regional Board of the Anti-Defama-
tion League, New York, NY, for
amicus curiae Anti-Defamation
League.
Kenneth S. Stern, Samuel Rabinove,
Wendy Lecker, Penina Goldstein,
New York, NY for amicus cure
Amencan Jewish Committee.
McLAUGHLIN, Circuit Judge:
In the summer of 1991, Leonard Jeffries was the
Black Studies department chairman at City College of
New York (“City College’), and he was the keynote
speaker at an off-campus symposium on black culture. He
spoke predominantly on the bias he perceived in New
York State’s public school curriculum. During the speech,
Jeffries made several derogatory statements, particularly
about Jews. The speech ignited a firestorm of contro-
versy, the upshot being the decision by university offi-
53a
cials to reduce Jeffries’ upcoming term as department
chairman from three years to one.
Jeffries sued the university officials in the United States
District Court for the Southern District of New York
(Kenneth C. Conboy, Judge), alleging that they reduced
his term because of the content of his speech, in violation
of the First Amendment. After a jury trial, the district
court found six of the 14 defendant officials liable for
violating Jeffries’ rights. The court reinstated Jeffries as
department chair, and awarded him $360,000 in punitive
damages.
The defendants appeal, arguing that: (1) they did not
abridge Jeffries’ free speech rights; (2) they are protected
from damage awards by the doctrine of qualified immun-
ity; (3) reinstatement was improper; and (4) the punitive
damage awards should be vacated as inconsistent with the
Jury’s special verdict findings.
We hold that defendants violated Jeffries’ right to free
speech, and that the defendants are not shielded by quali-
fied immunity. We also affirm the reinstatement order
because it was an appropriate equitable remedy given the
nature of the harm suffered. Because we find that the
jury’s responses were inconsistent with an award of puni-
tive damages, however, we vacate these awards and
remand for new trial on punitive damages.
BACKGROUND
The facts are largely undisputed.
A. The Parties
Jeffries is a professor at City College, and the chairman
of the Black Studies department there. Bernard Harleston
is the President of City College, which is part of the City
University of New York (“CUNY”) system. Ann Reyn-
54a
olds is the Chancellor of CUNY. James Murphy is the
Chairman of CUNY’s Board of Trustees; Edith Everett is
Vice-Chair. The remaining defendants are CUNY Trustees.
Jeffries has chaired the Black Studies department since
its creation in 1972. The CUNY by-laws state that a
chairman’s term lasts three years. Jeffries’ sixth consecu-
tive term was due to expire June 30, 1991, and on June
5, the Black Studies professors nominated him to another
term as chairman.
At CUNY, faculty nominations for department chairs
are subject to the approval of the City College President
and the CUNY Board of Trustees. Because Jeffries’ term
was up at the end of June 1991, the Board should have
voted on Jeffries at its June meeting. Due to an admini-
strative error, however, the Board did not act on Jeffries’
reappointment at that meeting. Despite the absence of
formal Board action, Harleston sent Jeffries a letter on
July 1 congratulating him on his reappointment. The
letter did not mention that the Board had yet to approve
his selection.
B. The Speech
On July 20, Jeffries delivered his now notorious speech
in Albany, at the Empire State Black Arts and Culture
Festival. Jeffries was introduced to the audience as the
chairman of City College’s Black Studies department, and
as a former member of a committee organized to review
the New York public school curriculum’s treatment of
minorities. The Festival was not affiliated with CUNY in
any way.
Jeffries spoke for more than an hour, primarily criticiz-
ing the racial and ethnic biases he perceived in the public
school curriculum. During the speach, Jeffries made sev-
eral comments about Jews that were hateful and repug-
55a
nant. For example, Jeffries launched several ad hominem
invectives at specific state and federal officials who sup-
ported the curriculum, calling one an “ultimate, supreme,
sophisticated debonair racist,” and a “sophisticated,
Texas Jew.” Jeffries also told his audience that Jews had
a history of oppressing blacks. He said that “rich Jews”
had financed the slave trade, and that Jews and Mafia fig-
ures in Hollywood had conspired to “put together a sys-
tem of destruction of black people” by portraying them
negatively in films.
C. The Aftermath
Jeffries’ speech, which was initially broadcast on an
Albany television station, received extensive media atten-
tion in the New York City area. On August 8, Harleston
released a statement condemning Jeffries tur undermining
CUNY’s policy of striving toward racial, ethnic and reli-
gious harmony, and indicating that he would “initiate a
thorough review of this situation.” Reynolds, Murphy,
and Everett issued a press release the same day, saying
that CUNY would “examine Professor Jeffries’ actions
and statements and, if warranted, . . . pursue vigorously
with City College the remedies that may be appropriate
bP]
and available. ...
Over the next few weeks, Reynolds and Harleston dis-
cussed with other CUNY administrators the possibility of
removing Jeffries as department chairman. Harleston
asked the City College Provost and the Dean of the Sociai
Sciences division to review Jeffries’ performance as
department chair since July 1 to determine whether the
publicity surrounding the speech hampered his ability to
run the department.
One week later, the Social Sciences Dean sent Harles-
ton a memorandum concluding that Jeffries had met his
56a
“ordinary administrative responsibilities . . . during an
extraordinary period of time.” The Dean also cautioned,
however, that his review was perfunctory, and that he
would submit a follow-up report.
The Provost subsequently reported to Harleston that
he had interviewed several people within and without the
Black Studies department; according to the Provost, all of
those interviewed stated that Jeffries was carrying out his
duties adequately. The Provost told Harleston that Jeff-
ries was scheduling courses, running department meet-
ings, recruiting faculty, keeping records, and representing
the department at meetings.
Harleston was not satisfied by these two reports on
Jeffries’ performance. He decided to recommend to the
Board of Trustees that they reappoint Jeffries to only a
one-year term—instead of the customary three-year term
—as department chairman. Reynolds endorsed this planned
recommendation. Neither Harleston nor Reynolds investi-
gated whether the Albany speech would impair Jeffries’
interaction with Jewish faculty, stigmatize the depart-
ment or university; or dissuade benefactors from provid-
ing financial support.
D. The Board Meetings
The Board of Trustees met in late October, with Jeff-
ries’ reappointment on the agenda. Harleston recom-
mended that the Board limit Jeffries’ term to one year.
The Vice-Chancellor for Legal Affairs, an attorney,
warned the Trustees that they could not sanction Jeffries
based on the content of his speech. Despite the Vice-
Chancellor’s admonition, Trustees Edith Everett, Herman
Badillo, Blanche Bernstein, and Harold Jacobs voted to
reject Jeffries’ nomination outright, candidly explaining
that their decision rested on the content of his speech.
57a
Nine other Trustees voted for Harleston’s recommenda-
tion, however, and approved a one-year term for Jeffries,
to expire at the end of June, 1992. (Trustee Sylvia Bloom
abstained from the vote because she had made statements
earlier criticizing Jeffries’ views.)
Harleston wrote Jeffries of the Board’s vote. In his
letter, Harleston said that the speech threatened recruit-
ment, fundraising, and CUNY’s relationship with the
community.
The Provost and Social Sciences Dean made oral fol-
low-up reports to Harleston on Jeffries’ performance.
They recounted angry exchanges that Jeffries initiated
with faculty and administrators regarding his limited term,
as well as a bizarre tantrum that Jeffries threw during
an interview with a student reporter from Harvard. In
December, Harleston decided to replace Jeffries as chair-
man.
On March 20, 1992, three days before the next Board
of Trustees meeting, Harleston announced to the Black
Studies department that he planned to recommend that
the Board approve Professor Edmund Gordon, retired
chairman of Yale University’s African-American studies
department, to succeed Jeffries in July. Although CUNY
by-laws state that the President should confer with the
department faculty when choosing a replacement chair-
man, Harleston had not done so. The faculty opposed
Gordon as a candidate, and chastised Harleston for select-
ing a department chair without consultation.
At the Board meeting, the Trustees voted unanimously
to replace Jeffries with Gordon. The defendants gave con-
flicting testimony about whether, at this meeting, the
Trustees discussed Jeffries’ performance.
58a
E. The Proceedings Below
In June 1992, Jeffries sued Harleston, Reynolds, and
the 14 Trustees under 42 U.S.C. §1983, alleging that he
was removed from the department chair in violation of
his First Amendment right to free speech. Jeffries sought
reinstatement and punitive damages.
At trial, Jeffries introduced a CUNY by-law provision
outlining the responsibilities of a department chairman.
The by-laws state that the chairman is charged with carry-
ing out the policies of the department, faculty, and Board
of Trustees. They list the chairman’s duties to include
department recordkeeping, assigning courses to depart-
ment faculty, representing the department at internal
CUNY. meetings, presiding over department meetings,
helping to draft department budget proposals, and evalu-
ating department professors who are up for tenure review.
Jeffries also introduced a summary of the district
court opinion in Levin v. Harleston, 770 F.Supp. 895
(S.D.N.Y. 1991), aff'd in part, vacated in part, 966 F.2d
85 (2d Cir. 1992). In Levin, another controversial CUNY
professor had sued Harleston and other CUNY officials
for retaliating against him because of his disparaging off-
campus statements about blacks. There, the district court
ruled that CUNY had violated the professor’s First
Amendment rights.
The defendants objected that the Levin summary was
inadmissible because its probative value was substantially
outweighed by its prejudicial effect. Judge Conboy
admitted the summary, however, because it was probative
of defendants’ knowledge and state of mind when they
limited Jeffries’ term.
For their part, the defendants offered evidence that
Jeffries was an ineffective chairman, and that they would
59a
have denied him a three-year term even if he had not
given the speech.
To focus the jury’s attention on the proper issues,
Judge Conboy submitted four specific questions for the
jury to answer. The jury returned the following responses:
1. Has the plaintiff proven by a preponderance of the
evidence that Leonard Jeffries’ July 20, 1991 speech in
Albany was a substantial or motivating factor in the
denial of plaintiff’s three-year term as Chairman of the
Black Studies Department? “YES.”
2. Have the defendants shown by a preponderance of
the evidence that Leonard Jeffries would have been
denied a full three-year term as Chairman of the Black
Studies Department even had Jeffries not made his
July 20, 1991 speech? “NO.”
3. Have the defendants proven by a preponderance of
the evidence that Leonard Jeffries’ July 20, 1991
speech hampered the effective and efficient operation
of the Black Studies Department, the College, or the
University? “NO.”
4. If the answer to question #3 was no, have the
defendants proven by a preponderance of the evidence
that the defendants were motivated in their actions by
a reasonable expectation that the plaintiff’s July 20,
1991 speech would cause the disruption of the effec-
tive and efficient operation of the Black Studies
Department, the College, or the University? “YES.”
With this special verdict in hand, Judge Conboy bal-
anced Jeffries’ speech interest against the defendants’
interest in running CUNY efficiently. He found that the
subject of Jeffries’ speech—the state public school curri-
culum—substantially involved a matter of public concern.
Judge Conboy then noted that the jury had found that
60a
Jeffries’ speech did not interfere with CUNY operations.
Based on these findings, he concluded that Jeffries’ inter-
ests were greater, and, accordingly, that the defendants
had violated his First Amendment rights.
Judge Conboy then submitted to the jury a second
verdict sheet, requiring a specific determination as to
each defendant’s individual liability. The jury responded
that Jeffries had proven by a preponderance of the evi-
dence that six defendants (Harleston, Reynolds, Everett,
Badillo, Bloom, and Jacobs) took action against Jeffries
because of his speech, and that these defendants would
not have limited Jeffries’ term had he not given the
speech. The jury found that Jeffries had failed to make
this showing as to the other defendants, however. !
On a third verdict sheet, the jury was asked to deter-
mine whether any of the six liable defendants had “acted
with malicious intent to violate the plaintiff’s rights
under the First Amendment. . . or with malicious intent
to unlawfully injure him, or... with a callous or reckless
disregard of the plaintiff’s First Amendment rights.” If
any defendants were found to have such an intent, the
jury was required to decide whether, and how much, to
award in punitive damages against the culpable parties.
The jury found that all six defendants were liable for
punitive damages, apportioned as follows: Harleston—
$30,000, Reynolds—$50,000, and Badillo, Bloom, Ever-
ett, and Jacobs—$80,000 each. The district judge reduced
Harleston’s amount to $15,000, and Reynolds’ to
$25,000.
Jeffries then petitioned the court for a permanent
injunction to reinstate him as chairman. The defendants
1 Bernstein died before trial and was not included in this ver-
dict sheet.
6la
opposed the injunction, and moved to overturn the jury’s
verdict on the grounds that the evidence was insufficient
and that they were shielded by qualified immunity. The
defendants also moved that the court vacate the punitive
damage awards as inconsistent with the jury’s response to
question four in the first special verdict.
In a published opinion, Judge Conboy denied the
defendants’ motion and ordered Jeffries reinstated as
department chairman. See Jeffries v. Harleston, 828 F.
Supp. 1066 (S.D.N.Y. 1993). He noted that there was
substantial evidence that Jeffries’ speech motivated the
defendants to act, and that defendants had offered little
credible evidence that they had limited his term for other
legitimate reasons. Judge Conboy also ruled that the
defendants were not protected by qualified immunity
because, in light of the Levis decision, they should have
known that they could not retaliate against an employee
for speech on matters of public concern.
In addition, Judge Conboy rejected the defendants’
argument that the special verdict findings were inconsis-
tent with the punitive damage awards:
the jury could have reasonably found that while a
majority of the defendants had a reasonable expec-
tation that the plaintiff's July 20, 1991 speech
would cause hampering of the efficient and effective
operation of the University, the six defendants
found liable did not have this reasonable expecta-
tion.
Finally, finding that the balance of equities weighed in
Jeffries’ favor, Judge Conboy ordered the defendants to
reinstate Jeffries as department chairman for two years.
62a
DISCUSSION
On appeal, the defendants argue that the district court
erred because: (1) the defendants did not violate Jeffries’
First Amendment rights; (2) they were shielded from lia-
bility by qualified immunity; (3) reinstatement was im-
proper; and (4) the punitive damage awards were incon-
sistent with the special verdict findings. We address these
arguments in turn.
I. The First Amendment
Central to our constitutional democracy is the right to
speak on political or social matters without fear of retri-
bution by the government. See generally Palko v. Con-
necticut, 302 U.S. 319, 327 (1937) (Cardozo, /.) (free-
dom of speech is “the indispensable condition of nearly
every other form of freedom’’). This freedom does not
vanish when the views expressed jar majoritarian sensibili-
ties. As Justice Holmes observed 75 years ago:
[W] e should be eternaily vigilant against attempts to
check the expression of opinions that we loathe and
believe to be fraught with death, unless they so
imminently threaten immediate interference with
the lawful and pressing purposes of the law that an
Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting). More recently, Justice Harlan has
added: “That the air may at times seem filled with verbal
cacophony is, in this sense not a sign of weakness but of
strength.” Cohen v. Caltfornia, 403 U.S. 15, 25 (1971).
This protection against government retaliation for
speech extends also to the government’s own employees,
although the need for an efficiently functioning govern-
ment must be factored into the balance. See Rankin v.
McPherson, 483 U.S. 378, 384 (1987). Accordingly,
when a public employee expresses an opinion on a matter
63a
of social or political concern, even if critical of the very
government that employs him, his employer cannot sanc-
tion him unless his speech has impaired the efficiency of
government operations. See id. at 379-80, 383 (data
entry clerk in sheriff’s office may not be fired for express-
ing to co-workers her hope that next attempt on Presi-
dent Reagan’s life succeeds); Piesco v. City of New York,
933 F.2d 1149, 1159-60 (2d Cir. 1991) (city official
cannot be fired for publicly criticizing her own depart-
ment where there is no evidence that her statements actu-
ally hampered the department’s functioning), cert.
dented, 112 S.Ct. 331 (1992). Compare Dambrot v. Cen-
tral Michigan Univ., 839 F.Supp. 477, 487 (E.D. Mich.
Nov. 23, 1993) (university could fire coach for racial
remarks to players in locker room during halftime pep
talk because the players’ poor performance was “not the
kind of question that is fairly cast as a ‘public’ issue”).
To determine whether the government violated an
employee’s free speech rights, the employee’s interest
in speaking on matters of public concern must be bal-
anced against the government’s interest in rendering pub-
lic services efficiently. Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968). We review de novo the district
court’s balancing of interests. See Connick v. Myers, 461
U.S. 138, 150 n.10 (1923).
To establish a prima facie case that the government
fired an employee in violation of his free speech rights,
the employee must demonstrate that the speech: (1)
involved a matter of public concern; and (2) was a sub-
stantial or motivating factor in the government’s decision
to fire him. See Frank v. Relin, 1 F.3d 1317, 1328-29 (2d
Cir.), cert. denied, 114 S.Ct. 604 (1993). The former is a
question of law; the latter, of fact. Jd. at 1329.
64a
Jeffries’ speech unquestionably involved public issues.
The speech criticized the public school curriculum (and
its supporters) for reflecting bias against minorities, and
discussed the history of black oppression. These issues
are suffused with social and political hues. True, the
tenor of Jeffries’ speech was less than ingratiating, and,
as evidenced by the ensuing uproar, its content affronted
many who heard it or, at least, heard about it. But First
Amendment protection does not hinge on the palatability
of the presentation; it extends to all speech on public
matters, no matter how vulgar or misguided. See Organ:-
zation for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971) (“[{S]o long as the means are peaceful, the com-
munication need not meet standards of acceptability.’’).
Jeffries also satisfied the second Pickering prong. The
evidence substantially supported the jury’s finding that
defendants’ decision to remove Jeffries was motivated by
the content of the Albany speech. Before the speech,
Harleston was eager to send premature congratulations to
Jeffries on his reappointment. After the speech, Harles-
ton asked two administrators to determine whether Jeff-
ries was performing his duties as chairman adequately.
Even though both reported favorably on Jeffries’ perfor-
mance, Harleston proceeded to recommend that the
Board reappoint Jeffries for only a one-year term.
Then, the Board, with no evidence that Jeffries’ per-
formance was deficient or that the speech threatened to
harm CUNY, voted to limit Jeffries’ term. Four Trustees
voted against reappointment outright, candidly conced-
ing that they did so because of the content of Jeffries’
speech. Likewise, at the next Board meeting, where the
Board approved Gordon as the new department chair-
man, several Trustees admitted at trial that Jeffries’ per-
formance was not discussed at all.
65a
The jury, therefore, had ample basis to find that the
speech was the impetus for the defendants’ action. Thus,
Jeffries’ speech was a substantial or motivating factor
behind the vote to limit his term, and Jeffries has made
out a prima facie case.
Even though the employee makes out a prima facie
case that the defendants sanctioned him for his speech,
the defendants may still escape liability by showing either
that: (1) they would have fired the employee regardless
of the speech; or (2) the employee’s conduct interfered
with the “effective and efficient fulfillment of [defen-
dants’] responsibilities to the public.” Frank, 1 F.3d at
1329 (quoting Connick, 461 U.S. at 150).
Having carefully reviewed the record, we agree with
the district court that the jury could reasonably have con-
cluded that the defendants would not have removed Jeff-
ries but for the speech. It was only after the speech that
Harleston began expressing concerns about Jeffries’ per-
formance; not three weeks before, he had congratulated
Jeffries on his reappointment. While the defendants
offered evidence that Jeffries had exchanged heated
words with other CUNY personnel regarding CUNY’s
reaction to his speech and had berated a student reporter
from Harvard, there was no evidence that these incidents
were ever considered by the Board as a reason to deny
reappointment. The record shows that the Trustees did
not remove Jeffries for any reason other than his speech.
Nor have the defendants shown that Jeffries’ speech
interfered with CUNY’s operation. See Frank, 1 F.3d at
1329. Generally, interference in this context entails
impairing employer discipline, causing disharmony among
co-workers, disrupting close working relationships where
loyalty and confidence are essential, failing to perform
one’s duties, or frustrating the regular operation of the
66a
government enterprise in question. See Pickering, 391
U.S. at 570-73.
How much interference the government must show to
justify sanctioning an employee for his speech will vary,
depending on the degree that the speech involved matters
of public concern. See Connick, 461 U.S. at 146-47. If
the speech only tangentially touched on public issues, the
government need not wait until “the disruption of the
office and the destruction of working relationships is
manifest” before taking action. Jd., 461 U.S. at 152. If,
alternatively, the speech substantially addressed public
issues, the government must show the statements “actu-
ally undermined the effective and efficient operation” of
the employee’s department. Piesco, 933 F.2d at 1159.
Because, as we held above, Jeffries’ speech substantially
concerned public issues, the defendants shoulder the
weightier burden of showing that the speech caused sub-
stantial disruption at CUNY.
Endeavoring to lighten their burden, the defendants
argue that they need only demonstrate a reasonable
expection that Jeffries’ speech would eventually cause
disruption because Jeffries held a highly visible, policy-
making position. True, the government generally has
more discretion to sanction an employee who serves in a
“confidential, policymaking, or public contact role” than
one who performs ministerial functions, Rankin, 483
U.S. at 390-91 (1987) (the employee’s responsibilities
determine whether his statement “somehow undermines
the mission of the public employer”); Piesco, 933 F.2d
at 1157 (a high-ranking public official must act w'th cau-
tion when commenting on matters integral to . .at per-
son’s official responsibilities); Hall v. Ford, 856 F.2d
255, 261 (D.C. Cir. 1988) (government’s burden of prov-
ing interference is less stringent when the employee holds
67a
a position for which loyalty is essential). The defendants,
however, have not shown how Jeffries, by virtue of his
position as department chair, could undermine CUNY’s
mission with his speech. See Rankin, 483 U.S. at 390.
The CUNY by-laws charge the department chairman with
carrying out the policies of the department, faculty, and
Board of Trustees. They do not vest him with the power
to make policy. Further, the department chairman per-
forms an essentially ministerial role: He keeps depart-
ment records, assigns courses to teachers, represents the
department at internal CUNY meetings, drafts depart-
ment budget proposals, leads departmental meetings, and
makes departmental tenure evaluations.
In addition, the evidence suggests that, within CUNY,
department chairs are perceived as ministerial positions.
When Harleston asked the Provost to evaluate Jeffries’
performance, the Provost focused sole'y on whether Jeff-
ries had completed the ministerial tasks listed in the by-
laws. He did not examine Jeffries’ interpretations of
CUNY policy, his contact with the public, or the like.
Nor did the defendants introduce any other evidence at
trial to show that department chairmen have special
duties of loyalty or confidentiality, or that they have
more public contact than an ordinary professor. While a
department chair may be a position of prestige, it does
not call for the level of institutional fidelity that would
justify the lesser interference burden.
In short, to rebut Jeffries’ prima facie case, the defen-
dants must show substantial interference. We find that
the defendants have provided meager evidence at best
that Jeffries’ speech had any real disruptive effect on
CUNY operations, and thus, have fallen short of their
burden.
68a
Finally, the defendants argue that Jeffries failed to
show that they caused his deprivation, as required by sec-
tion 1983. Monell v. Department of Social Servs., 436
U.S. 658, 692 (1978). The defendants reason that: (1)
only four of the 13 voting Trustee defendants were found
liable for retaliating against Jeffries because of his speech
(Harleston and Reynolds were not Trustees); (2) these
four could not have caused Jeffries’ deprivation because
the other nine Trustees voted to limit Jeffries’ term for
constitutionally permissible reasons. We disagree.
A plaintiff -may establish causation under section 1983
if he shows that the defendants participated in, or were
“moving forces” behind, the deprivation. See City of
Oklahoma v. Tuttle, 471 U.S. 808, 819-20 (1985); Gutz-
errez-Rodriguez v. Cartagena, 882 F.2d 553, 560-61 (1st
Cir. 1989) (causation includes participating in an affirma-
tive act, or “setting in motion a series of acts by others
which the actor knows or reasonably should know would
cause others to inflict the constitutional injury.’’).
Under this standard, all six defendants found liable
have “‘caused”’ Jeffries’ deprivation. Defendants Harleston
and Reynolds, while not Trustees, appear, nevertheless,
to have been prime movers behind CUNY’s effort to take
action against Jeffries; Harleston himself was singularly
responsible for proposing that the Board of Trustees
approve Jeffries for only a one-year term. Thus, they
were “moving forces” behind the vote. In addition, by
voting at another meeting to replace Jeffries with Gor-
don, Trustees Badillo, Bloom, Everett and Jacobs parti-
cipated in the act (voting) that caused Jeffries’ depriva-
tion (removal from the department chair).
Accordingly, we affirm the district court’s finding that
the defendants violated Jeffries’ First Amendment rights.
69a
II. Qualified Immunity
The defendants contend that even if they did violate
Jeffries’ rights, the damage awards should be vacated
because the defendants, as government officials, enjoy
qualified immunity.
The doctrine of qualified immunity balances society’s
need to allow public officials to discharge their duties
without fear of litigation against the individual’s interest
in being safe from official abuse. See generally Harlow v.
Fitzgerald, 457 U.S. 800, 813-15 (1982); Zinker v. Doty,
907 F.2d 357, 359 (2d Cir. 1990), cert. denied, 498 U.S.
1041 (1991). Thus, qualified immunity shields state
actors from liability for their official acts unless they vio-
lated “clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow, 457 U.S. at 818. See White Plains Towing Corp.
v. Patterson, 991 F.2d 1049, 1063-64 (2d Cir.), cert.
dented, 114 S.Ct. 185 (1993).
A right is “clearly established” if it meets one of three
tests: (1) it is defined with reasonable clarity; or (2) the
Supreme Court or this Circuit has affirmed its existence;
or (3) a reasonable defendant would understand from
existing law that his acts were unlawful. White Plains
Towing, 991 F.2d at 1064. See generally Malley v. Briggs,
475 U.S. 335, 341 (1986) (the doctrine does not shield
“the plainly incompetent or those who knowingly violate
the law’’).
The defendants should have known from existing law
that they could not remove Jeffries from the department
chair on the basis of his speech. By July 20, 1991, both
the Supreme Court and the Second Circuit had held
repeatedly that, absent a disruption of government opera-
‘ions, a public employer may not sanction an employee
70a
for speaking on issues of social or political concern. See,
e.g., Rankin, 483 U.S. at 379-80, 383 (1987) (clerk in
sheriff’s office wrongfully fired for saying that she hoped
next assassination attempt on President Reagan was suc-
cessful); Pickering, 391 U.S. at 574 (teacher could not
be fired for publicly criticizing school’s athletic budget or
for questioning character of school administrators);
Piesco, 933 F.2d at 1159-60 (high-ranking city adminis-
trator wrongfully fired for telling a legislative committee
that a “moron” could pass the police entrance exam)
(decided June 3, 1991); Dube v. State Unw. of New
York, 900 F.2d 587, 598 (2d Cir. 1990) (it is “objec-
tively unreasonable” for university administrators to
retaliate against professor solely because of his public
speech).
In the face of this overwhelming precedent, the defen-
dants argue that the right was not clearly established
because no court had specifically addressed whether a
public university might limit a department chairman’s
term on the basis of his speech. The defendants, in effect,
believe they can act as they choose until there is a case on
all fours. We reject such jural insouciance. The defendants
should have known their actions were illegal from the
decisions reproving closely analogous conduct. See Selzer
v. Flewsher, 629 F.2d 809, 812 (2d Cir. 1980) (“A prior
judicial decision holding conduct such as appellants’ to be
a basis for suit was not necessary to apprise them of a
rule which should come as no surprise ... .”), cert.
denied, 451 U.S. 970 (1981). See also Vasbinder v. Am-
bach, 926 F.2d 1333, 1341 (2d Cir. 1991). Indeed, two
of those decisions, Pickering and Dube, specifically
involved public school teachers.
This abundance of precedent alone would justify our
rejection of defendants’ qualified immunity defense.
7la
Here, however, the defendants had further notice that
their actions were illegal. One month before the first
Board meeting, Harleston and other CUNY officials lost a
lawsuit in which a professor claimed that CUNY stigma-
tized him on the basis of statements he made outside the
classroom. See Levin v. Harleston, 770 F.Supp. 895 (S.D.
N.Y. September 4, 1991), aff'd in part, vacated in part,
966 F.2d 85 (2d Cir. 1992). The Levin district court
opinion was a clarion call to the defendants that sanction-
ing Jeffries for his speech was unconstitutional.2
Finally, we note that the Trustees were advised at the
first Board meeting by CUNY’s own Vice Chancellor of
Legal Affairs that they could not act against Jeffries
based on his speech.
For these reasons, we hold that the defendants were
not shielded by qualified immunity.
Ill. Reinstatement
The defendants also argue that the district court should
not have ordered them to reinstate Jeffries as department
chairman. Essentially, their position is that the injunction
would have unduly harsh public consequences because
Gordon, the replacement chosen by the Board, is a more
effective department chairman.
2The defendants argue that the district court improperly
allowed the jury to see a summary of the district court’s opinion
in Levin because it suggested to the jury that the defendants had a
propensity to commit first amendment violations.
While evidence of prior bad acts may not be admitted to show
propensity, it may come in for other purposes, such as to show
state of mind. Fed. R. Evid. 404(b). Here, the summary of the
Levin opinion was highly probative to show that the defendants
knew that they were not allowed to punish faculty members for
extracurricular expression. The Levin summary was relevant on the
issues of liability and punitive damages, and thus was properly
admitted.
72a
An injunction is proper when the plaintiff has suffered
a constitutional violation that causes continuing irrepara-
ble injury for which the law provides no adequate rem-
edy. See New York State Nat’l Org’n for Women v.
Terry, 886 F.2d 1339, 1362 (2d Cir. 1989), cert dented,
495 U.S. 947 (1990). In determining whether to issue an
injunction, the court should balance the relative injuries
to the parties and should consider the public conse-
quences. Weinberger v. Romero-Barcelo, 456 U.S. 305,
312 (1982).
We find that reinstatment was well within the district
court’s discretion. The defendants violated Jeffries’ right
to free speech by limiting his term as department chair-
man. And, as the district court noted, the department
chair is a position of prestige, both inside and outside
CUNY. Unremedied, the violation constitutes a continu-
ing loss of that prestige, further aggravated by the cloak
of disgrace that surrounded Jeffries’ removal. Further,
he has no remedy at law for this injury. See Jackson
Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72
(2d Cir. 1979) (“[I]rreparable injury means injury for
which a monetary award cannot be adequate compensa-
tion. . .”’).
On balance, we find that Jeffries’ injury outweighs any
detriment to the public from having Jeffries as depart-
ment chairman for two more years. We affirm the rein-
statement order.
IV. Punitive Damages
Punitive damages may be awarded for a constitutional
violation where the defendant’s conduct was driven “by
evil motive or intent, or when it involves reckless or cal-
lous indifference to the federally protected rights of
others.” Smith v. Wade, 461 U.S. 30, 56 (1983). They
73a
are imposed to “punish the person doing the wrongful act
and to discourage him and others from similar conduct
in the future.” Restatement (Second) on Torts §908
cmt. a (1979). Accordingly, punitive damages should be
reserved for a case where the defendant acted with a
degree of malice akin to the mens rea required for most
crimes. See Pactfic Mutual Life Ins. Co. v. Haslip, 499
U.S. 1 (1991). See also William L. Prosser, Handbook of
the Law of Torts 9 (4th ed. 1971).
The defendants argue that we should vacate the puni-
tive damage awards against Harleston, Reynolds, Everett,
Badillo, Bloom and Jacobs because they are inconsistent
with an earlier jury finding. Specifically, they note that,
in response to question four on the first special verdict
form, the jury found that the defendants were motivated
in their actions by a “reasonable expectation” that Jeff-
ries’ speech would disrupt the effective and efficient
operation of CUNY. The defendants regard this finding
as inconsistent with the jury’s subsequent finding that six
of the defendants acted with malicious intent or reckless
indifference. We agree.
The Seventh Amendment’s right to trial by jury will
not tolerate a judgment based on a material inconsis-
tency in the jury’s verdict. Finnegan v. Fountain, 915
F.2d 817, 820 (2d Cir. 1990). On the other hand, respect
for the right to trial by jury counsels that in reviewing a
jury’s special verdict responses, we prefer a reading that
reconciles apparent inconsistencies. See Brooks v. Brattle-
boro Mem. Hosp., 958 F.2d 525, 529 (2d Cir. 1992).
Where we cannot harmonize the jury’s responses ration-
ally, however, the Seventh Amendment requires that we
vacate the judgment and order a new trial. See id. at 529-
30; Finnegan, 915 F.2d at 820; Auwood v. Harry Brandt
Booking Office, Inc., 850 F.2d 884, 891 (2d Cir. 1988);
74a
Bernardini v. Rederi A/B Saturnus, 512 F.2d 660, 662
(2d.Cir. 1975).
In Finnegan, for example, the plaintiff sued a police
officer under section 1983 for using excessive force when
arresting her. The jury was given two special verdict
sheets. On the first, it found that the officer acted in the
good faith belief that he was using reasonable force; on
the second, the jury found he acted maliciously, wan-
tonly, and oppressively. Finnegan held that these verdicts
flatly contradicted each other, and, accordingly, that the
judgment could not stand. Jd. at 821. See Bates v. Jean,
745 F.2d 1146, 1152 (7th Cir. 1984) (jury finding that
officer did not know actions were illegal contradicts find-
ing that his actions were shocking, callous, and brutal).
We believe the jury responses here, like those in Fin-
negan, are hopelessly irreconcilable. The defendants
could not have acted with a reasonable expectation that
Jeffries’ speech would harm CUNY, and also with malice
or reckless indifference. If defendants’ actions were moti-
vated by a reasonable expectation of harm to CUNY, the
court could not award punitive damages; if they acted
maliciously or with reckless indifference, such awards
would be proper. See Restatement (Second) on Torts
§908 cmt. b (“[P]unitive damages may be awarded
because of . . . wrongful purpose or intent. . . . Punitive
damages are not awarded for mere inadvertence, mistake,
errors of judgment and the like... .’”’).
The district court—understandably, given the time and
resources it had invested in this prickly litigation—sought
to harmonize the jury’s responses by interpreting the first
response to mean only that “a majority of the defen-
dants” reasonably expected the speech would harm
CUNY, and the second response to declare which defen-
dants did not act with such a reasonable expectation. We
75a
find this interpretation more ingenious than ingenuous.
There is no fair way to read the first verdict response so
narrowly. There is a threshold of clarity that a jury ver-
dict should cross, particularly when it awards punitive
damages based on a finding of malice or recklessness. The
legal and moral consequences of such a finding are too
serious to leave the finding to conjecture and surmise.
Accordingly, we vacate the punitive damage awards
against Harleston, Reynolds, Everett, Badillo, Bloom, and
Jacobs, and remand for a new trial to decide whether
Jeffries should recover punitive damages from these six
defendants.
CONCLUSION
In sum: We affirm the district court’s holding that the
defendants violated Jeffries’ First Amendment rights; we
affirm that defendants were not shielded by qualified
immunity; and we affirm the order reinstating Jeffries to
his department chair for two years; however, we vacate
the award of punitive damages and remand for a new trial
solely on that issue.
AFFIRMED in part, VACATED in part, and RE-
MANDED.
76a
APPENDIX H
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
92 Civ. 4180 (KC)
LEONARD JEFFRIES,
Plaintiff,
v.
BERNARD HARLESTON, et al,
Defendants.
ORDER
KENNETH CONBOY, DISTRICT JUDGE:
This trial commenced on April 22, 1993, and the jury
submitted its initial verdict on May 10, 1993. There were
five questions on the First Verdict Form, which the jury
answered as follows:
1. Has the plaintiff proven by a preponderance of the evi-
dence that Leonard Jeffries’ July 20, 1991 speech in
Albany was a substantial or motivating factor in the denial
of plaintiff’s three-year term as Chairman of the Black
Studies Department? “Yes.”
2. Have the defendants shown by a preponderance of the
evidence that Leonard Jeffries would have been denied a
full three-year term as Chairman of the Black Studies
Department even had Jeffries not made his July 20, 1991
speech? “No.”
77a
3. Have the defendants proven by a preponderance of the
evidence that Leonard Jeffries’ July 20, 1991 speech
hampered the effective and efficient operation of the
Black Studies Department, the College, or the Univer-
sity? “No.”
4. If the answer to question #3 was “no,” have the defen-
dants proven by a preponderance of the evidence that the
defendants were motivated in their actions by a reason-
able expectation that the plaintiff’s July 20, 1991 speech
would cause the disruption of the effective and efficient
operation of the Black Studies Department, the College,
or the University? “Yes.”
5. Has the plaintiff proven by a preponderance of the evi-
dence that the defendants deprived him of property
without due process of law? “Yes.”
_ To begin, the Court notes that the jury found that the
defendants violated the plaintiff’s rights under the four-
teenth amendment, in that they deprived the plaintiff of
property without due process of law.
Having received the determinations of the jury with
respect to the factual issues underlying the first amend-
ment allegations, the Court must now balance the inter-
ests of the plaintiff Leonard Jeffries “in commenting
upon matters of public concern,” against the interests of
his employer, City University, “in promoting the effi-
ciency of the public services it performs through its
employees.” Pickering v. Board of Ed. of Tp. H. S. Dist.
205, Ill., 391 U.S. 563, 568 (1968).
In performing this balancing test, the Court must
determine the degree to which Professor Jeffries’ July 20,
1991 speech involved matters of public concern. In mak-
ing this determination, the Court looks to the “content,
form, and context of a given statement as revealed by the
78a
whole record.” Connick v. Myers, 461 U.S. 138, 147-48
(1983). Professor Jeffries made his speech at the Empire
State Black Arts and Cultural Festival in Albany, New
York, in a function that was wholly unconnected with
City University. The speech was made in response to and
as part of an ongoing debate concerning the importance
of teaching different perspectives in the classrooms of
this country. The subject of the debate and the content
of the speech concerned the reform of the educational
curriculum to reflect the multicultural values and exper-
iences of different minorities in the United States. In
fact, Professor Jeffries had been retained by the State of
New York to advise a task force appointed by New York
State Education Commissioner, Thomas Sobol, to study
the status of the curriculum in the state’s public schools
and the treatment of people of color in that curriculum
(See Plaintiff’s “Affidavit in Support of Plaintiff’s Motion
for Summary Judgment,” para. 7). Professor Jeffries was
given the task of researching the impact of the public
school curriculum on African Americans. Following pub-
lication of the task force’s findings, a storm of contro-
versy broke over the participants, who then proceeded
to attack each other. The ensuing debate absorbed the
energies of the press and commentators on the American
scene, across the nation. Indeed, in his speech, Professor
Jeffries responds to criticisms that had been leveled at
him and his ideas by others in both academic and politi-
cal life.
Reviewing the record with respect to Professor Jeffries’
July 20, 1991 speech, the Court finds that the speech
substantially involved matters of public concern and
“should be accorded significant weight in the Pickering
balance.” Piesco v. City of New York, Dept. of Personnel,
933 F.2d 1149, 1157 (2d Cir.), cert. denied, 112 S.Ct.
79a
331 (1991). The speech was part of a debate that has
broad and extremely significant implications for Ameri-
can society. Possible reform of the educational curricu-
lum, and the introduction of multicultural perspectives in
the classroom, to whatever degree thought prudent, rep-
resent a critical dialogue that reaches the deepest political
and social values of the United States. While it is quite
understandable that some may consider certain state-
ments in Professor Jeffries’ speech to be offensive, these
statements do not dilute the high degree of public con-
cern that is at the core of the speech.
On the other side of the scale, the Court must weigh
the right of the University to function effectively and
efficiently. In weighing this right, the Court defers to the
jury’s factual findings. The jury found that Professor Jeff-
ries’ July 20, 1991 speech did not hamper the effective
and efficient operation of the Black Studies Department,
the College, or the University. However, the jury also
found that the defendants were motivated in their actions
by a reasonable expectation that the plaintiff's speech
would cause the disruption of the effective and efficient
operation of the Black Studies Department, the College,
or the University.!
The question facing the Court is whether the defen-
dants, in order to outweigh the free speech rights of the
lWe observe that at least one Circuit court has held that in
performing the balancing test required by Pickering a “‘court must
defer to [the jury’s] factual findings, unless the [ ] [findings] are
totally unsupported by the record.” Lewis v. Harrison School Dis-
trict No. 1, 805 F.2d 310 (8th Cir. 1986), cert. denied, 482 U.S.
905 (1987). However, the authority is unclear in this Circuit as to
the obligation of trial courts to make factual determinations when
balancing the Pickering factors. Accordingly, we have made an
independent review of the evidence in this case, and we agree with
the jury’s factual findings.
80a
plaintiff, must show actual hampering of the effective
and efficient operation of the Black Studies Department,
the College, or the University, or whether the “reasonable
expectation” that the plaintiff’s speech would cause dis-
ruption is enough to overcome the plaintiff's first amend-
ment rights. We recognize that in Connick the Supreme
Court stated that it did “not see the necessity for an
employer to allow events to unfold to the extent that the
disruption of the office and the destruction of working
relationships is manifest before taking action.” Connick,
461 U.S. at 152. However, the Supreme Court cautioned
“that a stronger showing may be necessary if the employ-
ee’s speech more substantially involved matters of public
concern.” Id.
Many courts since Connick have held that where a
public employee’s speech substantially involves matters
of public concern, the defendants must show actual ham-
pering of the effective and efficient operation of the
governmental services in order to outweigh the employ-
ee’s first amendment rights. A showing that the defen-
dants were motivated in their actions by a “reasonable
expectation” that the employee’s speech would cause the
disruption of the effective and efficient operation of the
government office is insufficient. See, e.g., Piesco, 933
F.2d at 1159-60; Melton v. City of Oklahoma City, 879
F.2d 706, 715-16 (10th Cir. 1989); Roth v. Veteran’s
Admin. of Government of United States, 856 F.2d 1401,
1407 (9th Cir. 1988); Matherne v. Wilson, 851 F.2d 752,
761 n.53 (5th Cir. 1988); Zamboni v. Stamler, 847 F.2d
73, 78 (3rd Cir.), cert. denied, 488 U.S. 899 (1988).
Because the jury found no actual hampering and
because we have found that the plaintiff’s speech substan-
tially involved matters of public concern, we hold that
the plaintiff’s interest in making his speech outweighs
8la
the University’s interest in the effective and efficient
operation of its services. Accordingly, the Court finds
that the University’s denial to Professor Jeffries of a full
three-year term as Chairman of the Black Studies Depart-
ment constitutes a violation of plaintiff’s first amend-
ment rights.
We will, therefore, submit the first amendment claim
with the fourteenth amendment claim to the jury for
further deliberations on the questions of individual lia-
bility and punitive damages.
SO ORDERED
/s/ Kenneth Conboy
KENNETH CONBOY, U.S.D.J.
Dated: New York, New York
May 11, 1993
82a
APPENDIX I
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
92 CIV 4180 (KC)
LEONARD JEFFRIES,
Plaintiff,
BERNARD HARLESTON, et al.,
Defendant.
Kenneth Conboy, District Judge:
As a preliminary matter, the Court must determine
whether the speech at issue in this case, Professor Jef-
fries’ July 20, 1991 speech at the Empire State Black
Arts and Cultural Festival, is constitutionally protected.
Speech is constitutionally protected if its content is a
matter of public concern. Speech touches upon matters
of public concern when it can “be fairly considered as
relating to any matter of political, social, or other con-
cern to the community.” Connick v. Myers, 103 S.Ct. at
1690. See also Johnson v. Lincoln Univ. of Com., 776
F.2d 443, 452 (3rd Cir. 1985). “Whether an employee’s
speech addresses a matter of public concern must be
determined by the content, form, and context of a given
statement as revealed by the whole record.” Connick,
103 S.Ct. at 1690.
Both sides agree that Professor Jeffries’ speech, taken
in its entirety, touches upon matters of public concern.
See Transcript of Hearing, April 20, 1993. The Attorney
83a
General contends, however, that particular sections of
the speech, the sections that allegedly motivated the
defendants’ actions, do not touch upon matters of public
concern and, therefore, do not deserve constitutional
protection.
We reject the Attorney General’s contention that the
Court can dissect a speech, which both sides concede is
constitutionally protected in its entirety, so as to elimi-
nate constitutional protection for particular shards or
phrases that might be considered offensive. In Rankin v.
McPherson, 107 S.Ct. 2891 (1987), the plaintiff, a cleri-
cal employee in a county Constable’s office, and a co-
worker were discussing the policies of the President of
the United States. At the conclusion of the discussion,
the plaintiff commented upon an assassination attempt
against the President, stating, “if they go for him again,
I hope they get him.” 107 S.Ct. at 2895. Plaintiff's last
remark was overheard by another employee, who reported
the statement to the Constable. As a result, plaintiff was
fired. The Supreme Court found that plaintiff could not
be fired for the last remark, because the remark was in
the context of a conversation discussing the President
and his policies and was, therefore, constitutionally
protected. Similarly, in this case, the Court must look to
the entire context of the speech to determine whether
particular sections touch upon matters of public con-
cern.' Because the statements upon which the Attorney
The Rankin Court stated that the “{t] he inappropriate or
controversial character of a statement is irrelevant to the question
whether it deals with a public concern. ‘[D] ebate on public issues
should be uninhibited, robust, vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials.’ ”
107 S.Ct. at 2898, quoting, New York Times Co. v. Sullivan, 84
S.Ct. 710, 721 (1964).
84a
General seeks to rely were made in the context of and
were part of a speech concerning a matter of public con-
cern, we find that these statements are constitutionally
protected.
Having found that Jeffries’ speech touches upon
matters of public concern, the Court will not allow the
Attorney General to splice and fragment the accompany-
ing constitutional protection in a manner that would
severely weaken the constitutional safeguard and might
well distort the full, contextual meaning of the speech.
Accordingly, the Court finds that Jeffries’ whole speech,
each and every sentence, is constitutionally protected.
See Eiland v. City of Montgomery, 797 F.2d 953 (11th
Cir. 1986), cert. denied, 107 S.Ct. 3263 (1987) (‘‘The
task under Pickering is to balance those competing inter-
ests and to determine whether the employee’s interests
in the speech as a whole outweigh the public employer’s
interests.” Jd. at 957 n.6) (emphasis added); Moore v.
City of Kilgore, Tex., 877 F.2d 364 (5th Cir.), cert.
denied, 110 S.Ct. 562 (1989) (“Finally, we turn to an
analysis of the form of Moore’s comments. They do
involve a hint of personal ‘employee’ considerations. .. .
However, mixed motivations are involved in most actions
we perform everyday; we will not hold Moore to hercul-
ean standards of purity of thought and speech, ever
assuming Moore’s motivations were mixed. Taking
Moore’s speech as a whole, and considering the content,
context, and form together, we hold that Moore’s speech
does involve a matter of public concern—the effectiveness
of the Fire Department in fighting fires.” Jd. at 371-72)
(emphasis added); Martin v. Parrish, 805 F.2d 583 (5th
Cir. 1986) (“The use of profane words by themselves,
in my opinion, does not preclude a finding that an
employee’s speech addresses a matter of public concern.
85a
Instead, as Connick indicates, the record as a whole must
be examined. Martin v. Parrish, 805 F.2d at 587 (Concur-
rence)) (emphasis in original).
The Attorney General next urges that the defendants
be permitted to offer testimony to the jury that they
were in fact motivated in the actions they took only by
the assertedly antisemitic portions of the speech. We
observe parenthetically that in taking this position the
defendants may be conceding a part of the plaintiff’s
burden of proof—specifically, that the protected speech
was a substantial or motivating factor in the defendants’
actions:-See Johnson v. Lincoln Univ. of Com., 776
F.2d 443, 452 (3rd Cir. 1985).
The Court will allow the admission of evidence con-
cerning the particular sections of the speech that moti-
vated defendants’ actions. However, both sides should be
aware that the fact that the defendants were motivated
by only particular sections of the speech is in no way a
defense to the civil allegations. It is our present intent to
instruct the jury accordingly.
SO ORDERED.
/s/ Kenneth Conboy
Kenneth Conboy, U.S.D.J.
Dated: New York, New York
April 21, 1993
86a
APPENDIX J
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
92 CIV 4180 (KC)
LEONARD JEFFRIES,
Plaintiff,
Vv.
BERNARD HARLESTON, et al.,
Defendant.
ORDER
Kenneth Conboy, District Judge:
Plaintiff, a tenured professor at the City College of the
City University of the City of New York, has filed a
complaint against officials and trustees of the College and
the University asserting, in substance, that his position
as Chairman of the Black Studies Department, which he
had held for twenty years, was terminated as a result of
a speech he gave in Albany, New York on July 20, 1991.
This speech was widely reported in the media and char-
acterized by some commentators as being anti-semitic
and denounced by numerous officials and faculty mem-
bers of the College and University. Professor Jeffries
seeks an order declaring that his first amendment right
to free speech has been abridged and that his civil rights
have been violated by the defendants, and directing the
defendants to restore him to the chairmanship.
87a
‘All parties apparently are in agreement that Professor
Jeffries’ Albany speech was in content and substance a
form of expression wholly protected by the First and
Fourteenth Amendments of the Constitution. The
defendants assert that the speech, and by implication, the
widespread criticism of the speech, the speaker and the
College and University officials who tolerated the con-
tinuing presence of Professor Jeffries on the faculty,
played no role in the termination of his chairmanship.
Professor Jeffries’ stewardship of his chairmanship pro-
vided a basis for his dismissal as chairman, according to
the defendants, and they point to a post-speech investi-
gation conducted by the Provost and Dean of the College
to support this finding. The plaintiff asserts that the
speech was the sole, or at least, the principle motivating
factor behind the action of the College and University
officials that caused the loss of his chairmanship.
Professor Jeffries points to the following sequence of
events in urging the Court to grant him summary judg-
ment:
a) plaintiff's re-election to the Chairmanship of his
Department by the faculty thereof;
b) acceptance of plaintiff’s re-election, without reserva-
tion or stipulation, as of July 1, 1991, by President
Harleston with the concurrence of Dean Rosen and
Provost Pfeffer;
c) plaintiff’s July 20, 1991 Speech;
d) defendants immediate condemnation of plaintiff
because of his Speech;
¢) President Harleston’s appointment of Provost Pfeffer
to review the plaintiff’s performance as Chair as a
result of the Speech;
88a
f) Faculty Senate rejection of any punitive action against
plaintiff at its September 19, 1991 meeting;
g) Provost Pfeffer’s October 4, 1991 Report to Harle-
ston, supported by Dean Rosen’s review, confirming
that plaintiff was functioning well as Chairman;
h) President Harleston’s direction to Provost Pfeffer and
Dean Rosen that they continue to review plaintiff’s
Chairmanship;
i) Board of Trustees October 28, 1991 vote limiting
plaintiff’s appointment as Chair to one (1) year rather
than customary three year term;
j) November decision by defendants to remove plaintiff;
k) March 1992 vote by Board of Trustees removing plain-
tiff as Chair, effective July 1, 1992.
In suport of his motion for summary judgment, plain-
tiff submits an affidavit, dated February 24, 1993, in
which he notes the report of Provost Pfeffer, dated Octo-
ber 4, 1991, to President Harleston of the College. There,
the Provost stated that “although you and others in the
administration might have had questions concerning
Professor Jeffries’ performance as Chair prior to July,
1991, Presidential approval of his re-election as Chair-
person (without any stipulations), appears to negate the
relevancy of any previous information concerning his
performance.” Professor Jeffries further cites the Sep-
tember 19, 1991 Memo of Dean Rosen to Provost Pfeffer,
specifically, the following passage: “I have decided to
limit my observations to Professor Jeffries actions as
Chair since his re-election to that post last spring: a
re-election which was, as you know, accepted by Presi-
dent Harleston. I must assume that the acceptance of
the outcome of that election implies that neither the
words or deeds of Professor Jeffries prior to last spring
89a
provided sufficient reason to over-ride the vote of the
department at that time.”
In light of these statements about Professor Jeffries’
performance before the speech, he argues that defen-
dants’ are limited to a review of his performance after
the speech, and that defendants can point to no mis-
conduct or deficiency after the date of the speech that
could serve as a justification for the termination of his
chairmanship.
Accordingly, plaintiff points out, and defendants do
not dispute, that the post-speech inquiry by Provost
Pfeffer and Dean Rosen was ordered by President Harle-
ston, to explore the effect of the speech on the ability
of Professor Jeffries to effectively perform his duties
as chairman. Notwithstanding the fact that the inquiry
by Provost Pfeffer and Dean Rosen found no basis to
conclude that the speech had impeded Dr. Jeffries in the
carrying out of his duties, defendant Harleston’s letter to
the plaintiff, dated October 29, 1991, stated that he was
still concerned about the speech and would continue to
monitor the professor’s actions.
For purposes of the motion before us, plaintiff urges
that he is entitled to summary judgment because it is
undisputed that as of July 1, 1991 there existed no rea-
son to deny Professor Jeffries his duly elected three
year term as Chairman of the Black Studies Department,
that the cause of the reviews and other actions taken
by the College leadership and University Trustees against
Professor Jeffries was his speech of July 20, 1991 and
that the justification offered by the defendants for the
dismissal of Professor Jeffries, that “black scholars ix the
field” had criticized plaintiffs stewardship of his depart-
ment, is not supported by the record. See, affidavit of
Joseph Fleming, dated February 24, 1993, 2-3.
90a
Defendants insist that they are entitled to summary
judgment, principally upon the grounds that, following
the July 20, 1991 speech “Dean Rosen and Provost
Pfeffer came to the conclusion that plaintiff’s perform-
ance as chair had deteriorated in a variety of respects.
They became aware of a confrontation with another
member of the faculty, delays in an important faculty
search, deficiencies concerning the monitoring of grading,
teaching of classes, and maintenance of records, failure
to attend meetings, and other problems. During the same
period, plaintiff confronted Harleston in a manner Harle-
stone deemed inappropriate. He and the chancellor also
became aware of allegations of inappropriate conduct by
plaintiff at City College, one by a reporter, one by a
student.” Defendants’ Statement Pursuant to Local Rule
3(g) dated February 11, 1991, 417.
It is apparent from an examination of the records and
documents submitted by the Attorney General on behalf
of the defendants to support the aforementioned claims,
that these materials could be found by a jury to have
been assembled selectively for the self-serving purpose of
creating an after the speech justification for removing
Professor Jeffries from his chairmanship. This is so
because much of what is relied upon to justify removal
of Professor Jeffries occurred before the Speech, and did
not impede his reappointment to the chairmanship three
weeks before the speech. We also observe that ritualistic
incantation of the business records exception to the
hearsay rule does not meet problems oi multi-tiered
hearsay in such documents.
The central issue in this case, as the Attorney General
concedes, is the defendants’ motives. Memorandum of
Law in Opposition to Plaintiff’s Motion For Summary
Judgment and in Support of Defendants’ Cross-Motion
9la
For Summary Judgment, dated February 11, 1993, 10-11
(“Defendants’ Memo”’).
Claims involving First Amendment rights of public
employees are governed by Pickering v. Board of Educa-
tion, 391 U.S. 563 (1968), and its progeny, which require
first, that the speech at issue “be fairly characterized as
constituting speech on a matter of public concern.”
Connick v. Myers, 461 U.S. 138, 145 (1983); Ezekwo v.
New York City Health and Hospitals Corp., 940 F.2d
775, 781 (2d Cir. 1991).
Second, the employee must prove that the speech was
a substantial or motivating factor in the adverse employ-
ment decision. Mount Healthy City Board of Education
v. Doyle, 429 U.S. at 287; Ollman v. Toll, 518 F.Supp.
1196 (D. Md. i981), aff'd, 704 F.2d 139 (4th Cir.
1983).
Third, the court must balance the interests of the
employee, “as a citizen, in commenting upon matters
of public interest and the interest of the State, as an
employer, in promoting the efficiency of the public
services it performs through its employees.” Pickering,
Supra, 391 U.S. at 568. See also Rankin v. McPherson,
483 U.S. 378, 388 (1987); Ezekwo, supra, 940 F.2d at
780.
Fourth, the government employer must be given an
Opportunity to prove that it would have reached the
same decision even without considering the protected
conduct. Jd.
Cases requiring a Pickering analysis are, as the Attor-
ney General concedes, ill-suited for summary judgment.
Defendants’ Memo, 1. See, Albisher v. Ryan, 622 F.2d
651, 654-55 (2d Cir. 1980). Furthermore, as the under-
lying facts are quite unsettled and even contradictory
92a
in the Attorney General’s own submission, we are not
satisfied that a showing that defendants’ are entitled to
a finding of qualified immunity at this stage of the pro-
ceedings has been made.
Nor are we satisfied that the record supports Plain-
tiff’s motion for summary judgment, given the factual
dispute over motive that is at the heart of the case.
Accordingly, the cross-motions for summary judgment
are in all respects denied. The case will proceed to trial
on April 20, 1993. This is a final and irrevocable trial
date, and no adjournment will be granted.
SO ORDERED.
Dated: New York, New York
March 31, 1993
/s/ Kenneth Conboy
KENNETH CONBOY, U.S.D.J.
93a
APPENDIX K
VERDICT FORM #3—PUNITIVE DAMAGES
Jeffries v. Harleston, Et Al, 92 Civ. 4180 (KC)
1. Do you find that the plaintiff has proven by a pre-
ponderance of the evidence that BERNARD W. HARLE-
STON acted with malicious intent to violate the plain-
tiff’s rights under the first amendment of the United
States Constitution or with malicious intent to unlaw-
fully injure him or that BERNARD W. HARLESTON
acted with a callous or reckless disregard of the plain-
tiff’s first amendment rights?
yes _x no
2. Do you find that the plaintiff has proven by pre-
donderance of the evidence that BERNARD W. HARLE-
STON acted with malicious intent to deprive the plaintiff
of property without due process of law or with malicious
intent to unlawfully injure him or that BERNARD W.
HARLESTON acted with a callous or reckless disregard
of the plaintiff’s right not to be deprived of property
without due process of law?
yes _x% no
3. If the answer to question #1 or #2 is “yes,” you may
decide to award punitive damages, or you may decide not
to award them. If you decide to award punitive damages
against BERNARD W. HARLESTON, what is the appro-
priate amount?
$30,000.00
4. Do you find that the plaintiff has proven by a pre-
ponderance of the evidence that W. ANN REYNOLDS
94a
acted with malicious intent to violate the plaintiff’s rights
under the first amendment of the United States Consti-
tution or with malicious intent to unlawfully injure him
or that W. ANN REYNOLDS acted with a callous or
reckless disregard of the plaintiff's first amendment
rights?
yes _x no
5. Do you find that the plaintiff has proven by a pre-
ponderance of the evidence that W. ANN REYNOLDS
acted with malicious intent to deprive the plaintiff of
property without due process of law or with malicious
intent to unlawfully injure him or that W. ANN REY-
NOLDS acted with a callous or reckless disregard of the
plaintiff’s right not to be deprived of property without
due process of law?
yes _% no
6. If the answer to question #4 or #5 is “yes,” you may
decide to award punitive damages, or you may decide not
to award them. If you decide to award punitive damages
against W. ANN REYNOLDS, what is the appropriate
amount?
$50,000.00
7. Do you find that the plaintiff has proven by a pre-
ponderance of the evidence that EDITH B. EVERETT
acted with malicious intent to violate the plaintiff’s rights
under the first amendment of the United States Constitu-
tion or with malicious intent to unlawfully injure him or
that EDITH B. EVERETT acted with a callous or reckless
disregard of the plaintiff's first amendment rights?
yes _xX no
8. If the answer to question #7 is “‘yes,”” you may decide
to award punitive damages, or you may decide not to
95a
award them. If you decide to award punitive damages
against EDITH B. EVERETT, what is the appropriate
amount?
$80,000.00
9. Do you find that the plaintiff has proven by a pre-
ponderance of the evidence that HERMAN BADILLO
acted with malicious intent to violate the plaintiff’s
rights under the first amendment of the United States
Constitution or with malicious intent to unlawfully injure
him or that HERMAN BADILLO acted with a callous
or reckless disregard of the plaintiff’s first amendment
rights?
yes _ no
10. If the answer to question #9 is “yes,” you may
decide to award punitive damages, or you may decide not
to award them. If you decide to award punitive damages
against HERMAN BADILLO, what is the appropriate
amount?
$80,000.00
11. Do you find that the plaintiff has proven by a pre-
ponderance of the evidence that SYLVIA BLOOM acted
with malicious intent to violate the plaintiff’s rights
under the first amendment of the United States Constitu-
tion or with malicious intent to unlawfully injure him or
that SYLVIA BLOOM acted with a callous or reckless
disregard of the plaintiff's first amendment rights?
yes _xX no
12. If the answer to question #11 is “yes,”” you may
decide to award punitive damages, or you may decide not
to award them. If you decide tc award punitive damages
against SYLVIA BLOOM, what is the appropriate
amount?
$80,000.00
96a
13. Do you find that the plaintiff has proven by a pre-
ponderance of the evidence that HAROLD M. JACOBS
acted with malicious intent to violate the plaintiff’s rights
under the first amendment of the United States Constitu-
tion or with malicious intent to unlawfully injure him or
that HAROLD M. JACOBS acted with a callous or reck-
less disregard of the plaintiff’s first amendment rights?
yes _x% no
14. If the answer to question #13 is “yes,’”” you may
decide to award punitive damages, or you may decide not
to award them. If you decide to award punitive damages
against HAROLD M. JACOBS, what is the appropriate
amount?
$80,000.00
97a
APPENDIX L
The City University of New York
University Faculty Senate
535 East 80th Street
New York, N.Y. 10021
Telephone - 212-794-5538
February 1, 1995
Honorable Judges of the United States
Court of Appeals for the Second Circuit
United States Courthouse
Foley Square
New York, New York 10007
Re: Jeffries v. Harleston
Docket No. 93-7876
Honorable Judges:
This letter brief is submitted in behalf of the Univers-
ity of New York as amicus curiae in the above-captioned
case. For the reasons set forth below, we believe that the
Supreme Court’s holding and reasoning in Waters v.
Churchill, 511 U.S. __, 114 S.Ct. 1878 (1994), is
inapplicable and should not be extended to the unique
“marketplace of ideas” that defines the university. To
apply Waters v. Churchill to the educational setting
would place at serious risk that exchange of viewpoints
and open dialogue which form a cornerstone for intellec-
tual pursuit, learning and academic freedom.
taininaineinneniinnn nani eue
98a
The University Faculty Senate
The University Faculty Senate exists pursuant to
Section 8.14 of the by-laws of the Board of Trustees of
the City University of New York (hereinafter the
“Board’’), as implemented by the Charter of the Uni-
versity Faculty Senate of the City University of New
York (hereinafter the “University”). In pertinent part,
these by-laws establish that the University Faculty
Senate (hereinafter the “‘Senate”’) is “responsible, subject
to the board, for the formulation of policy relating to
the academic status, role, rights and freedoms of the
faculty.”” The Senate is a self-governing body comprised
of delegates from all of the units of the University.
Given its charge and composition, the Senate is a unique
body which seeks to express the collective opinion of the
academic community which is most vitally affected by
the outcome of this case.!
The Academic Setting
In reaching its decision in this case, the court must be
mindful of the academic context in which it is cast. Over
the years the United States Supreme Court has addressed
itself to situations directly or indirectly related to aca-
demic communities. As a consequence, a body of law has
developed in recognition of the right of academics to
teach without hindrance. This basic protection has
broadened over the years to embrace extra mural utter-
ances, and even utterances critical of the emp
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