Result of the district’s appeal re Bauer v. Sampson (1999), August 15,
2001
(You may wish to skip down to “conclusion,” 4/5 of the way down the
page. –RB)
BAUER v. SAMPSON
Nos. 99-56964, 00-55408
Argued and Submitted May 8,
2001 – August 15, 2001
Before:
RYMER, HAWKINS, and GOULD, Circuit Judges.
David
C. Larsen (argued) and Robert E. King, Rutan & Tucker, Costa Mesa,
California, for the defendant-appellant.Carol A. Sobel (argued), Law Office of
Carol A. Sobel, Santa Monica, California, for the plaintiff-appellee.
Cedric
Sampson, Chancellor of the South Orange County Community College District
(“SOCCCD” or “the District”), appeals a grant of summary judgment in favor of
Roy Bauer, a tenured professor of ethics and political philosophy, in Bauer's
42 U.S.C. § 1983 case. Sampson contends that: (1)
the District's policy against workplace violence is facially constitutional; (2)
the District's policy against workplace violence is constitutional as applied
to Bauer; (3) the District's policy against racial discrimination or harassment
is constitutional as applied to Bauer; and (4) Bauer is not entitled to
attorney's fees, neither as awarded nor at all.
FACTS
AND PROCEDURAL HISTORY
Bauer
is a tenured professor of ethics and political philosophy at Irvine Valley
College (“IVC”), one of two campuses comprising the District, which is located
in Orange County, California. As the District's Chancellor, Sampson oversees
IVC and its sister school, Saddleback College. Sampson, upset at writings and
illustrations prepared and circulated by Bauer, sought to discipline him, order
him not to make such writings or illustrations in the future, and force him to
undergo counseling.
The
writings and illustrations were prepared during a traumatic time for IVC and
the District. Evaluating the District, an independent team of investigators
from the Accrediting Commission for Community and Junior Colleges (“the
Accrediting Commission”), noted that “the college [IVC] and the district have
experienced much turmoil in the past several years.” The Accrediting Commission
attributed the turmoil partially to Orange County's financial troubles and
primarily to a four-to-three split on the District's Board of Trustees (“the
Board”). The report prepared by the Accrediting Commission characterized the
situation thus: “A high-profile, often controversial group of trustees [the
majority of four] felt obliged to involve itself actively in the day-to-day
operations of the district and of the colleges far beyond the traditional role
for trustees.” The Board's increased involvement allegedly resulted in the
retirement of a chancellor, the resignation of two college presidents, and
other attrition. Eventually, the Board appointed an acting President for IVC,
Raghu Mathur, in, according to the Accrediting Commission, “a manner viewed by
many as intrusive and by all as controversial.” Despite the controversy
surrounding his appointment, Mathur was made the permanent President of IVC.
Bauer
did not approve of Mathur's appointment and many of the Board's other actions. He
voiced his disapproval in a campus newspaper called “Dissent,” which he
published and circulated himself under fictitious by-lines. Four writings and
two illustrations from “Dissent” are at issue in this case:
Writing
1: (November 2, 1998 issue) “I, for one, have etched the name of Sherry
‘Realpolitik’ Miller-White and others of her ilk on my permanent shit list, a
two-ton slate of polished granite which I hope to someday drop in Raghu
Mathur's head.”
Writing
2: (November 9, 1998 issue) Commenting on a remark by someone at a public
meeting of the Board that those present were “the very best people in the
district,” stating, “In a room like that, no decent person could resist the
urge to go postal.”
Writing
3: (November 9, 1998 issue) A fantasy description of a funeral for a district
trustee, who was the subject of a heated recall campaign, at which the other
trustees and President Mathur are asphyxiated by “a lurid gas emanating from
the Great Man's gaping mouth.”
Writing
4: (November 16, 1998 issue) Satirizing President Mathur's policies by writing:
“[W]e at Dissent announce the founding of the Milosevich-Mathur Academic
Integrity Matrix. I couldn't think of a more annoying business ed sounding type
word than ‘matrix;’ besides, it permits a satisfying acronym: MAIM.”
Illustration
1: (November 16, 1998 issue) “Tales of the Backdoor Gooster.” Illustrates a
story of underhanded tactics used by President Mathur in creating an “enemies
list” and then beheading his enemies.
Illustration
2: (November 23, 1998 issue) “Quick the Downsizers are Coming Again!” Accompanies
an article on micromanagement, discussing the anticipated “downsizing” of IVC.
Shows three shrunken people assembling a rifle, with one pointing it outward.
Sampson
responded to these writings and illustrations by letter, claiming that they
violated the District's policies on workplace violence and racial
discrimination or harassment. Sampson “strongly urge[d]” Bauer to participate
in the District's Employee Assistance Program to “[deal] with [his] feelings of
anger,” told Bauer that he was expected to comply with the Board's workplace
violence and racial discrimination or harassment policies, and called Bauer in
for a meeting.
At
the meeting, Sampson told Bauer that the writings and illustrations violated
the Board policies on workplace violence and racial discrimination or
harassment and that a negative entry was being placed in his personnel file. This
meeting was memorialized in a letter, which directed Bauer to: (1) “avoid any
form of discrimination against or harassment of SOCCCD employees as described
in Board Policy 4000.5”; (2) “immediately cease all verbal threats and violent
behavior overtones as required in Administration Regulation 4000.3”; and (3)
“[s]chedule a minimum of two meetings with the employee assistance counselor
provided by the District, or make similar arrangements with another counselor
approved by the Vice Chancellor [of] Human Resources, and report, in writing,
that you have met the counselor. The confirming letter will become part of the
District's record and your personnel file.” The letter warned that failure to
comply with its terms “would be grounds for more severe discipline.”
Rather
than adhere to these terms, Bauer brought suit in the district court, seeking
declaratory and injunctive relief as well as damages based on four causes of
action: (1) abridgement of his free speech rights, in violation of First and
Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Article I, section 2 of the California
Constitution; (2) abridgement of his right to petition, in violation of the
First Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, section 3 of the California
Constitution; (3) abridgement of his right to equal protection, in violation of
the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, section 7 of the California Constitution;
and (4) violations of the whistle-blower protections of California Labor Code § 1102.5.
The
district court granted Bauer preliminary injunctive relief, ordering Sampson
(1) not to enforce the workplace violence and racial discrimination or harassment
policies against Bauer and (2) to withdraw the directive for Bauer to undergo
counseling.1
After
discovery, Bauer moved for full summary judgment, which the district court
granted as to his first two causes of action-the free speech and right to petition
abridgements premised on his federal constitutional rights enforced through § 1983. The claim based on his equal protection
rights was dismissed as surplusage, the claim based on California labor law
denied, and the request for declaratory judgment ruled moot. Sampson timely
appealed.2
Bauer
filed a motion to amend the judgment to include attorney's fees, which the
district court granted. The court determined the fee rate for Bauer's counsel
to be $375 per hour, for a total fee award of about $125,000. Plaintiff's costs
came to just under $1700. Sampson timely appealed the fee and cost award as
well. We have jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1).
STANDARDS
OF REVIEW
A grant of summary judgment is
reviewed de novo. Weiner v. San
Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). In the civil rights context,
attorney's fee awards made pursuant to 42 U.S.C. § 1988 are generally reviewed for an abuse of
discretion.3 See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933,
76 L.Ed.2d 40 (1983); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1160 (9th Cir.2000).
ANALYSIS
I. Facial Challenge
Board
Policy 4000.3 defines workplace violence as “verbal threats, violent behavior
or physical conduct which interferes with the employee's safety in the
workplace.” Administrative Regulation 4000.3 implements the policy “by defining
its components and assigning responsibilities for carrying out the policy.” Administrative
Regulation 4000.3(1) lists two definitions of “workplace violence”:
a. Workplace violence is defined as verbal threats,
violent behavior or physical conduct, which interferes with employee's safety
in the workplace.
b. Workplace violence includes, but is not limited to,
making written, physical, or visual contact with verbal threats or violent
behavior overtones.
In Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71
L.Ed.2d 362 (1982), the Supreme Court articulated a standard for First
Amendment facial overbreadth and vagueness challenges:
In
a facial challenge to the overbreadth and vagueness of a law, a court's first
task is to determine whether the enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then the overbreadth
challenge must fail. The court should then examine the facial vagueness
challenge and, assuming the enactment implicates no constitutionally protected
conduct, should uphold the challenge only if the enactment is impermissibly
vague in all of its applications.
Sampson argues that the District's
workplace violence policy does not reach constitutionally protected conduct
because it only prohibits “threats” of violence. However Administrative
Regulation 4000.3(1)(b) extends past “threats” to also proscribe expression
with violent “overtones.”
“In general, threats are not
protected by the First Amendment.” Lovell v. Poway Unified Sch. Dist., 90 F.3d
367, 371 (9th Cir.1996). As Lovell explains:
We
have set forth an objective test for determining whether a threat is a “true
threat” and, thus, falls outside the protection of the First Amendment: “whether
a reasonable person would foresee that the statement would be interpreted by
those to whom the maker communicates the statement as a serious expression of
intent to harm or assault.”
90
F.3d at 372 (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265
(9th Cir.1990)).
Because
some expression with violent “overtones” would not offend this reasonable
person standard (i.e., would not be a “true threat”), Administrative Regulation
4000.3(1)(b)'s proscription violates the First Amendment under Village of
Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. 1186. Simply put, a substantial
amount of “overtones” are not “threats.” Therefore, the second definition of
workplace violence facially violates the First Amendment. Since Board Policy
4000.3 and Administrative Regulation 4000.3(1)(a) prohibit only “verbal threats
․ which interfere[ ] with
employee's safety in the workplace,” these definitions are facially
constitutional.
II. “As Applied” Analysis
Sampson's
admonitory letter to Bauer directed him to “avoid any form of discrimination
against or harassment of SOCCCD employees as described in Board Policy 4000.5”
and “immediately cease all verbal threats and violent behavior overtones as
required in Administrative Regulation 4000.3.” As explained above, it was
unconstitutional for Sampson to attempt to forbid expression with “violent
behavior overtones” that fell short of being a “true threat” (Administrative
Regulation 4000.3(1)(b)). However, it is facially constitutional to regulate
“true threats” as do Board Policy 4000.3 and Administrative Regulation 4000.3(1)(a).
Additionally, Bauer concedes that the discrimination and harassment regulation
is facially constitutional.4 Therefore, we next consider whether the
prohibitions on racial discrimination or harassment and violent threats were
applied to Bauer in a constitutional manner.
Sampson
based his racial discrimination or harassment charge on Bauer's use of the name
“Mr. Goo” for IVC President Raghu Mathur. In a letter, Sampson told Bauer that
his “misuse” of Mathur's first name was “dehumanizing and insulting.” Sampson
contends that the name is a play on the pejorative term “gook” and the fact
that “goo” means “excrement” in Hindi. Bauer claims that the name is simply a
play on the similarity between Mathur's first name, Raghu, and that of a cartoon
character, Mr. Magoo. Sampson based his workplace violence charge on Bauer's
“verbal threats and violent behavior overtones.”
We
agree with the district court's analysis that the policies were
unconstitutionally applied to Bauer because “though at times adolescent,
insulting, crude and uncivil, Bauer's publication focuses directly on issues of
public interest and importance.” We also agree with the district court that
Bauer's statements were not “true threats” and that the District's rights as an
employer were not impermissibly burdened by Bauer's expression.
A. Protected Expression
Expression involving a matter of
public concern enjoys robust First Amendment protection. “Whether a public employee's speech
involves a matter of public concern depends upon ‘the content, form, and
context of a given statement, as revealed by the whole record.’ ” Cochran
v. City of Los Angeles, 222 F.3d 1195, 1200 (9th Cir.2000) (quoting Connick v.
Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). “A public employee's speech or
expressive conduct deals with a matter of public concern when it ‘can be fairly
considered as relating to a matter of political, social, or other concern to
the community.’ ” Id. (quoting Voigt v. Savell, 70 F.3d 1552, 1559 (9th
Cir.1995)). Sampson concedes that Bauer's expression dealt with matters of
public concern, arguing not that the expression is unprotected, but rather that
either (1) the expression loses its protected status because it constitutes
“true threats” or (2) the District's interests as an employer in regulating the
expression outweigh Bauer's First Amendment rights as an employee.
B. “True Threat” Analysis
“[T]he constitutional guarantee of
free speech ․ does not permit a State to forbid
or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action that is
likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444,
446, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). “Whether a particular statement may properly be considered
to be a threat is governed by an objective standard-whether a reasonable person
would foresee that the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression of intent of harm or
assault.” United States v.
Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990). “Alleged threats should be considered in light of their
entire factual context, including the surrounding events and reaction of the
listeners.” Id.
We agree with the district court's
holding that although Bauer's writings have some violent content, they “are
hyperbole of the sort found in non-mainstream political invective and in
context ․ are patently not true threats.” (Emphasis in original). Under the
reasonable speaker test, these writings would not be perceived as “true
threats.” They were made in an underground campus newspaper in the broader
context of especially contentious campus politics.
Sampson
argues that the expression takes on a more insidious tenor when considered in
the overall context of Bauer's other behavior on campus. Sampson alleges that
Bauer: (1) had verbal run-ins with his supervisor and other District employees
more sympathetic to the administration; (2) told his supervisor, “You and
Mathur are going down”; (3) told a co-worker, “Your day has come,” after the
co-worker mocked a friend; and (4) referred to Mathur and an African-American
Trustee as “the dark side.” Sampson has not, however, alleged that Bauer has
ever been physically abusive or violent on or off campus. Nor did Sampson base
his disciplinary action on any of these incidents; it was based on the six
writings found in “Dissent.”
Within
the larger context of the turbulent IVC campus community, the conduct alleged
by Sampson does not transform Bauer's expression into “true threats.” We agree
with the district court that there is simply no way a reasonable reader would
have construed the writings and illustrations to be “true threats,” even if
that reader were aware of all of the other conduct alleged by Sampson.
C. The District's Interests as an Employer
[T]he State has interests as an
employer in regulating the speech of its employees that differ significantly
from those it possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case [alleging First Amendment
infringement] is to arrive at a balance between the interests of the teacher,
as a citizen, in commenting upon matters of public concern and the interest of
the State, as an employer, in promoting the efficiency of the public services
it performs through its employees.
Pickering
v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In
order to prevail, a public employee must first show that his statements are
constitutionally protected. Johnson
v. Multnomah County, 48 F.3d 420, 422 (9th Cir.1995). Once a plaintiff shows
that his statements were of public concern and that the statements were a
substantial motivating factor for the disciplinary action taken against him,
the burden shifts to the defendant to show that its legitimate administrative
interests outweigh the plaintiff's First Amendment rights. Gilbrook v. City of Westminster, 177
F.3d 839, 866-67 (9th Cir.1999). “This
issue is one of law and a determination is to be made by the court.” Cochran, 222 F.3d at 1200 (citing
Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708
(1983)).5
As
discussed above, Sampson concedes on appeal that Bauer's expression was about a
matter of public concern. Sampson also concedes that the expression was a
substantial factor in causing the discipline upon which Bauer's suit is based. Therefore,
the only issue is whether the District's interests as an employer outweigh
Bauer's First Amendment rights.
Pickering “requires full
consideration of the government's interest in the effective and efficient
fulfillment of its responsibilities to the public.” Voigt, 70 F.3d at 1561. In Brewster v. Bd. of Educ., 149
F.3d 971, 980-81 (9th Cir.1998), we listed five factors for use in the
Pickering balancing analysis: (1) whether the employee's speech disrupted
harmony among co-workers; (2) whether the relationship between the employee and
the employer was a close working relationship with frequent contact which
required trust and respect in order to be successful; (3) whether the
employee's speech interfered with performance of his duties; (4) whether the
employee's speech was directed to the public or the media or to a governmental
colleague; and (5) whether the employee's statements were ultimately determined
to be false. “Because the
Pickering balance necessarily involves a fact-sensitive inquiry involving the
totality of the circumstances, no single factor is dispositive.” Gilbrook, 177 F.3d at 868.
Under the Pickering balancing
analysis, as elucidated by Brewster, the District's interests as an employer do
not outweigh Bauer's First Amendment rights. First, Bauer's expression no doubt
created some disharmony among his colleagues, especially those more sympathetic
to the administration. In light of the Accrediting Commission's report,
however, it can hardly be said that Bauer was the source of the disharmony on
IVC's campus. IVC and the District were going through a contentious
period-Bauer's commentary on these troubles may have raised awareness, but the
expression certainly did not cause them. Second, given the nature of academic
life, especially at the college level, it was not necessary that Bauer and the
administration enjoy a close working relationship requiring trust and
respect-indeed anyone who has spent time on college campuses knows that the
vigorous exchange of ideas and resulting tension between an administration and
its faculty is as much a part of college life as homecoming and final exams. Third,
Sampson has not shown that Bauer's speech had any negative impact on Bauer's
teaching or other professional responsibilities. Fourth, Bauer's expression was
disseminated through “The Dissent,” which was distributed exclusively to the
District community. Finally, fifth, Bauer's expression was clearly opinion, not
factual assertions that could be proven false.
The
district court properly conducted its Pickering balancing analysis. We agree
that Bauer's First Amendment rights clearly outweigh the District's interests
as an employer in silencing his expression.
III. Attorney's Fees
Sampson
challenges both Bauer's entitlement to fees under 42 U.S.C. § 1988 and the amount awarded by the district court.
A. “Special Circumstances”
Plaintiffs in § 1983 actions “should ordinarily recover an
attorney's fee unless special circumstances could render such an award unjust.” Newman v. Piggie Park Enters., Inc.,
390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). We have a two-prong
test for determining such special circumstances, “(1) whether allowing
attorney's fees would further the purposes of § 1988 and (2) whether the balance of the equities favors or disfavors
the denial of fees.” Gilbrook, 177
F.3d at 878.
Sampson argues that three “special
circumstances” warrant a departure from the usual fee award rule in this case: (1)
this is a case of first impression, so the public benefits from full
litigation; (2) Bauer could have found a lawyer without the fee award
inducement because of the beneficial publicity generated by the case; and (3)
Sampson litigated in good faith. All three arguments fail to rise to the level
of a “special circumstance.”
We
need not decide whether the first two of these grounds would qualify as a
“special circumstance” because they lack a factual basis in any event.
This
is not a case of first impression. Both the Supreme Court and this circuit have
published widely on the free speech rights of academics, the requirements for a
statement to be a “true threat,” and the invalidity of proscriptions on
potentially violent expression that falls short of being a “true threat.” Though
these particular facts have not been litigated, the legal principles which
govern this case were extant at its inception.
It
also seems unlikely that Bauer could have gotten a lawyer to represent him on
his own. The attorney's fees in this case totaled over $100,000-an attorney
would be hard-pressed to provide that magnitude of representation just for
beneficial publicity. The purpose of § 1988,
allowing citizens to present constitutional claims when they have been wronged
by governmental actors, would be frustrated by forcing a plaintiff such as
Bauer to find an attorney willing to take on a decidedly local § 1983 case at a cost to himself of over $100,000.
Finally, good faith litigation is
not enough, on its own, to warrant a finding of “special circumstances.” Williams v. Hanover Hous. Auth., 113
F.3d 1294, 1301-02 (1st Cir.1997) (“The circuits are in agreement ․ that defendants' good faith reliance on settled
law ․ is not a ‘special circumstance’
warranting a denial of attorney's fees under § 1988.”).
The
district court was correct in ruling that this case does not present “special
circumstances” justifying a decision not to award attorney's fees to Bauer.
B. Hourly Rate
Sampson argues that the hourly
rate determined by the district court for Bauer's counsel, $375 per hour, is
excessive. The district court followed the proper procedure for such a
determination under Davis v. City and County of San Francisco, 976 F.2d 1536,
1545-46 (9th Cir.1992), vacated in part 984 F.2d 345 (1993), considering
declarations filed by local attorneys on behalf of both Sampson and Bauer. Reviewing
these declarations, we cannot say that the district court abused its discretion
in determining the hourly rate.
C. Number of Hours
Sampson argues that Bauer was not
sufficiently successful under Sablan v. Dept. of Fin. of Commonwealth of N.
Mariana Islands, 856 F.2d 1317, 1325 (9th Cir.1988), and Hensley to merit a
full fee award. Sampson argues that because Bauer filed five claims and only
received relief from the district court as to two, his suit was only forty
percent successful.
Such
reasoning cannot stand under Sablan, which teaches that courts “must determine
what [the plaintiff] sought to accomplish in bringing his lawsuit and then
determine whether the lawsuit was causally linked to the relief actually
obtained.” 856 F.2d at 1325. Here,
Bauer asked that the two Board policies not be applied to his expression, that
Sampson's reprimanding letter be removed from his personnel file, and that he
not undergo counseling. His suit accomplished all of these goals, a result
preserved in this appeal. It simply is not material under Sablan or Hensley
that Bauer alleged additional causes of action which were dismissed on the
merits or as surplusage or mooted by his victory.
Sampson
also quibbles with the district court's calculation of Bauer's counsel's total
hours. However, Sampson has not presented us with concrete evidence of which
hours were overbilled, resulting in an abuse of discretion by the district
court. We note that Bauer's attorney agreed to a voluntary twenty-hour
reduction before the district court even addressed the issue. The district
court did not abuse its discretion in calculating Bauer's attorney's hours.
CONCLUSION
The
district court correctly ruled that Administrative Regulation 4000.3(1)(b) is
unconstitutional on its face because it prohibits speech with violent
“overtones” that falls short of being threatening. However, the district court
erred in holding that the entire workplace violence policy is facially
unconstitutional: both Board Policy 4000.3 and Administrative Regulation
4000.3(1)(a) pass facial analysis.
The
district court correctly ruled that the Board's policies on racial
discrimination or harassment and workplace violence are unconstitutional as
applied to Bauer. The district court did not abuse its discretion in deciding
to award Bauer's attorney's fees, setting the rate for those fees, or in calculating
the number of attorney hours to be paid.
AFFIRMED
IN PART; REVERSED IN PART. Appellee is awarded costs on appeal.
I
concur in sections II.A, II.B, and III of the majority's analysis.
I
respectfully dissent from section I because, in my view, Administrative
Regulation 4000.3(1)(b) is not facially unconstitutional. I agree that,
standing alone, the prohibition on expression with “violent behavior overtones”
is unconstitutionally overbroad. However, this prohibition cannot sustain an
overbreadth challenge because it does not reach a “substantial amount of
constitutionally protected conduct.” See Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362
(1982).
I
also respectfully dissent from section II.C and decline to walk in the path of
error taken by the majority. These are hard cases because of the great weight
and respect that properly must be given the dictates of the First Amendment. Nevertheless,
the United States Supreme Court has pointed to some limits in the context of
employment. See Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20
L.Ed.2d 811 (1968).
As
I see it, the evidence that Sampson submitted in opposition to Bauer's motion
for summary judgment raised genuine issues of material fact concerning the ways
in which Bauer's writings and illustrations, tinged with violence, affected the
campus community, the peace of mind of administrators, faculty, and students,
and the overall well-being of the college.1 The district
court disregarded these issues, giving greater weight to the values underlying
free speech. Yet, under Pickering the Supreme Court requires a balancing of
facts relating to disruption in the employment context; a more fact-intensive
inquiry was appropriate in light of the evidence submitted opposing summary
judgment. In my view, the district court should have addressed the competing
interests of Sampson and Bauer in a trial or at least in an evidentiary hearing
where some factual determinations could be made, before conducting its analysis
under Pickering and concluding that Bauer's free speech interests outweighed
Sampson's legitimate administrative interests in restricting such speech.
The
Pickering balancing analysis requires a factual inquiry into factors
concerning: (1) whether the speech at issue disrupts harmony among co-workers; (2)
the nature of the relationship between the employer and employee; (3) whether
the speech inhibits the speaker's job performance; (4) to whom the speech was
directed; and (5) the accuracy of the speech. Brewster v. Bd. of Educ., 149
F.3d 971, 980-81 (9th Cir.1998) (setting forth five factors for use in the
Pickering balancing analysis). Here, viewing the evidence in the light most
favorable to Sampson and drawing all permissible inferences in his favor, there
are serious fact issues concerning the extent and impact of the disruption
resulting from Bauer's writings and illustrations.
We
should consider declarations submitted in support of Sampson. For example, an
economics professor declared that he had been “discouraged from pursuing
administrative jobs because of Mr. Bauer and his disruptive presence.” Another
professor declared that she “felt physically threatened by the violent
newsletter sequence which underlies this litigation, some of which target[ed]
[her] personally.” Sampson declared that he placed restrictions on the
“Dissent” only when “the publication became increasingly violent, suggesting
physical harm to various employees, including Dr. Raghu Mathur, the College
President.”
For
me, the most significant declaration is from Dr. Lipian, a forensic
psychiatrist who, based in part upon a review of the “Dissent,” concluded that:
(1) “the District has a legitimate concern that Mr. Bauer has the potential, if
not evaluated and possibly treated, of engaging in increasing forms of violent
speech, and possibly violent conduct”; (2) “[i]n the absence of evaluation and
treatment, [Mr. Bauer's] escalating interest in, discussion of, and threat to
employ violent actions and violent tools ․
is likely to worsen”; and (3) “Mr. Bauer's anger is likely to intensify․ [And]
[a]ction upon unambiguously stated fantasies of revenge and destruction becomes
an increasingly ominous risk.” This declaration of a qualified forensic psychiatrist
was given weight by the college and warrants more consideration than it
received from the district court.
In
an era when a wave of seemingly random, but frequent, violence has engulfed
schools across our country, the district court gave too little attention to
risks of ripening violence that may reasonably be inferred from the expert's
submission. For Dr. Lipian to note an “increasingly ominous risk” of action
based on “unambiguously stated fantasies of revenge and destruction” is no
small matter, though one finds no mention of it in the district court opinion,
or for that matter, in the majority's analysis. Accepting Dr. Lipian's
statement as true for purposes of summary judgment, the college's response to
this risk was moderate, reasonable, and restrained. The college did not censor
Bauer, nor terminate him, but only sought to require that he submit to
psychological counseling. Such a course was recommended by Dr. Lipian. Giving
all inferences to Sampson, I decline to accept the views of the district court
that risks of violence or other disruption must be disregarded without a trial
or an evidentiary hearing to permit the district court to assess the evidence
after determining credibility of witnesses.
I
recognize that the college and the school district were experiencing
difficulties when Bauer published the writings and illustrations at issue. But,
I believe that, if Sampson's evidence is credited, the evidence supports the
conclusion that Bauer did more than raise awareness of pre-existing problems. Rather,
giving all reasonable inferences to Sampson, a trier of fact might conclude
that Bauer was responsible for more than his share of the tension on campus.
Pickering
“requires full consideration of the government's interest in effective and
efficient fulfillment of its responsibilities to the public.” Voigt v. Savell,
70 F.3d 1552, 1561 (9th Cir.1995). The college owed a duty to faculty and
students to exercise the utmost care to avoid the possibility of violence and
irreparable harm. Cf. LaVine, 257 F.3d 981. We cannot from this record say
whether there was, as Dr. Lipian explicitly said, an “increasingly ominous
risk” of violence that outweighed Bauer's free speech interests. Summary
judgment was premature and inappropriate.
FOOTNOTES
1. The district court also ordered that
Bauer be excused from posting a bond or other security to obtain the
preliminary injunction.
2. The district court did not award Bauer
any damages and he has filed no cross-appeal, so damages have dropped out of
the case.
3. Section 1988 is the statutory provision
governing fee awards for successful § 1983
plaintiffs.
4. Board Policy 4000.5 prohibits
discrimination or harassment on the basis of certain listed characteristics
“pursuant to applicable federal and state statutes, guidelines, and
regulations, and district policies and regulations” in any District employment
process, position, program, service, or activity. The district court rejected a
facial challenge to this policy, a decision Bauer does not appeal.
5. We note the dissent's concern that the
district court did not draw “all permissible inferences” in Sampson's favor in
conducting its Pickering analysis at summary judgment. Under the plurality
opinion in Waters v. Churchill, 511 U.S. 661, 677, 114 S.Ct. 1878, 128 L.Ed.2d
686 (1994), when conducting Pickering balancing, “courts look to the facts as
the employer reasonably found them to be.” (Emphasis in original). Unlike Waters, the facts of this
case are not in dispute. Here the parties agree precisely on the expression at
issue-the six writings. Connick
and Waters teach that in such a circumstance the application of Pickering to
settled facts is the province and duty of the court. We are not to defer to the
governmental employer's analysis of the facts, just the governmental employer's
reasonable determination of the facts. In any event, Dr. Lipian's declaration
is largely conclusory and is not based on any personal interview or examination
of Bauer.
1. Although the majority urges in its
footnote 5 that the “parties agree precisely on the expression at issue-the six
writings,” the majority fails to address evidence in the record about the
consequence of those writings for the campus. The majority does not even
mention the government employer's submission of its expert psychiatrist's view
that Bauer had an escalating interest in “violent actions and violent tools”
and was sufficiently disturbed to require counseling. Recognizing that schools
must have leeway to take protective or precautionary steps to counter risks of
violence, we have recently upheld, against First Amendment challenge, a high
school's suspension of a student who submitted a violent poem with descriptions
of classroom shooting. LaVine v.
Blaine Sch. Dist., 257 F.3d 981 (9th Cir.2001). We should show similar
tolerance here of the interests of the college, which at least warrant a trial
or evidentiary hearing on issues of risks of violence and consequent
disruption.
MICHAEL
DALY HAWKINS, Circuit Judge:
A number of teachers went to the leaders of the faculty association before the 1996 election and asked that the union not endorse Frogue because he already had a reputation as a nut. The union ignored them and instead hired an outside consultant to help direct the campaign of its slate of candidates: Frogue, Fortune, Williams and Don Davis.
