# Appendix — Jeffries v. Harleston > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2033%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 516 U.S. 862 ## Text Supreme Court, U.g, (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 eo RR ee la Appendix B — Order of the Supreme Court of The United States Dated November 14, 1994............. l5a Appendix C — Plaintiff-Appellee’s Letter Brief es ek aan inig pp 'p'e.w 6b 0 4:8 6 die’ 16a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2033%3A2. Public record. Not legal advice.