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RUBIN v. IKENBERRY

May 29, 1996

LOUIS RUBIN, PLAINTIFF,
v.
STANLEY O. IKENBERRY, MORTON WEIR, ROBERT BERDAHL, P. DAVID PEARSON, THEODORE MANOLAKES, AND BRIAN BRAUN, DEFENDANTS.



The opinion of the court was delivered by: Mihm, Chief Judge.

      ORDER

Before the Court is Defendants' Motion for Summary Judgment [# 19]. For the reasons set forth below, the Motion is GRANTED.

Background

The facts of this case are voluminous and will be summarized in their most skeletal form. Plaintiff, Louis Rubin ("Rubin"), is a tenured professor in the College of Education of the Urbana-Champaign campus of the University of Illinois ("University"). (Amended Complaint ("Complaint"), ¶ 3.) Defendants are Stanley O. Ikenberry (President of the University system), Morton Weir (Chancellor of the Urbana-Champaign campus of the University), Robert Berdahl (Vice Chancellor for Academic Affairs of the Urbana-Champaign campus of the University), P. David Pearson (Dean in the College of Education of the University), and Theodore Manolakes (Associate Dean in the College of Education and Acting Department Head of the Department of Instruction and Curriculum of the Urbana-Champaign campus of the University). Id., ¶¶ 4-8. Defendant Brian Braun, the husband of one of the grievants in the sexual harassment proceeding giving rise to this lawsuit, was dismissed with prejudice on November 24, 1993. (Minute Entry, 11/24/93, granting Motion to Voluntarily Dismiss.)

In January 1990, Rubin was teaching "Methods of Teaching Social Studies in the Elementary Schools," Elementary Education 345 (Complaint, ¶ 20.) The class consisted of 33 students, all of whom were female. Id., Exh. G. On January 29, 1990, two students, Terre Braun and Kathy Anderson, filed sexual harassment grievances against Rubin on account of his sexual commentary, inquiries, and jokes during class. Id., Exh. C.*fn* Rubin does not deny making the offending comments; rather, he maintains that when they are evaluated in the proper context, they are pedagogically correct. (Response to Reply, p. 3.)

Rubin was relieved from teaching Elementary Education 345 with two of four weeks of the course remaining. (Complaint, ¶ 57.) On January 31, 1990, Rubin thanked Berdahl and other university officers by letter for allowing him to explain his teaching approach and to express his regret over the problem he had caused. (Rubin Dep., Exh. 3.) He also wrote that the assignment of a different professor to the remainder of the course was most appropriate. Id.

On February 27, 1990, Manolakes communicated in writing to each grievant his conclusion that she had been sexually harassed and that her grievance was granted in accordance with the terms of his letter. (Rubin Dep., Exhs. 4, 5.) A February 27, 1990 letter from Pearson to Rubin gives no indication that there had been a ruling on the grievances, nor does the attached February 26, 1990 letter from Manolakes to Pearson. (Rubin Dep., Exh. 6.)

In a March 7, 1990 letter to Pearson, Rubin wrote that he had "learned today that the students' grievance was granted on February 27, or thereabouts." (Rubin Dep., Exh. 7.) On March 8, 1990, Rubin requested from Manolakes, among other items, a copy of the letter granting the grievances. (Rubin Dep., Exh. 8.) On March 27, 1990, Rubin wrote Manolakes that "in my March 8 correspondence, I requested copies of your letter to the student complainants acknowledging sexual harassment." (Def. Exh. 6, filed 11/3/92.) Rubin now alleges that "he did not know that [Manolakes' letters] included a finding that the grievants had been sexually harassed." (Complaint, ¶ 81.)

On March 12, 1990, Rubin signed a letter written by Manolakes incorporating some of the findings and recommendations of the University's team which had investigated the situation. (Complaint, Exh. I.) This letter does not mention the status of the grievances and specifically makes no reference to Manolakes' letters to the grievants. On March 30, 1990, Rubin's counsel wrote Manolakes that Rubin's "previous letters to you are to be taken as an appeal of [your] finding of sexual harassment." (Rubin Dep., Exh. 11.)

The University Handbook of Policies and Regulations contains a section entitled "University of Illinois Statement on Sexual Harassment" which defines sexual harassment as:

  [A]ny unwanted sexual gesture, physical contact, or
  statement that a reasonable person would find
  offensive, humiliating, or any interference with his
  or her required tasks or career opportunities at the
  University.

(Complaint, Exh. A.) This section also states that sexual harassment is not tolerated, sanctions will be imposed on a case-by-case basis, and the University will respond to every report of sexual harassment. Id.

According to the Complaint, the University of Illinois Statutes concerning academic freedom state that:

    a. It is the policy of the University to maintain
  and encourage full freedom, within the law, of
  inquiry, discourse, teaching, research, and
  publication and to protect any member of the academic
  staff against influences, from within or without the
  University, which would restrict him in the exercise
  of these freedoms in his area of scholarly interest.

(Emphasis added.) Id., ¶ 11.

According to the Complaint, the Academic Staff Handbook, in the section entitled "Academic Freedom and Faculty Responsibility," states that:

    Academic freedom is essential to the functioning of
  a university. It applies to its teaching, research
  and public service and involves both the faculty and
  students.
    Faculty are expected to teach their assigned
  courses in a manner consistent with the scheduled
  time, course content, and course credit as approved
  by the faculty. Within these constraints, they are
  entitled to freedom in the classroom in developing
  and discussing — according to their areas of
  competence — the subjects that they are assigned.

(Emphasis added.) Id., ¶ 12.

Discussion

Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "The moving party is entitled to a judgment as a matter of law [when] the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

As to the factual aspect, a defendant's motion for summary judgment must demonstrate, based on the record, an absence of evidence to support the plaintiff's case. Id. "[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(e). The Court draws all justifiable inferences in favor of the non-movant. Anderson, 477 U.S. at 253-55, 106 S.Ct. at 2513.

As a preliminary matter, two counts of the Complaint are no longer viable. Count IX is a federal claim alleging a First Amendment free speech violation. On August 6, 1993, the Court granted summary judgment as to Count IX, which was stricken with prejudice. (Order, 8/6/93, p. 1.)

Count XXVI is an intentional infliction of emotional distress claim against Defendant Braun. On November 24, 1993, Braun was dismissed with prejudice. (Minute Entry, 11/24/93, granting Motion to Voluntarily Dismiss.)

Rubin alleges jurisdiction based on 28 U.S.C. § 1331, 1343 "as the action is predicated on 42 U.S.C. § 1983 and § 1988" and on pendant jurisdiction for the state claims. (Complaint, ¶ 1.) The Court finds jurisdiction pursuant to 28 U.S.C. § 1331, 1367(a).

I. Counts of the Complaint

A. Substantive Due Process Counts

Nine counts of the Complaint allege violations of substantive due process. Each alleges a violation of substantive due process with respect to a liberty interest in some other alleged right.

Three of the nine, Counts IV, V, and VI, are federal claims. Count IV alleges a violation of substantive due process of Rubin's liberty interest in First Amendment free speech. Count V replaces free speech with academic freedom. Count VI alleges a liberty interest in academic freedom created by state law.

The remaining six substantive due process claims are state claims. Counts XIII, XIV, and XV allege liberty interests in free speech, academic freedom, and academic freedom created by state law. They request declaratory and injunctive relief. Counts XXI, XXII, and XXIII make corresponding claims to XIII, XIV, and XV, but they request damages.

B. Procedural Due Process Counts

Nine counts of the Complaint allege violations of procedural due process. Each alleges a violation of procedural due process with respect to a liberty interest in some other alleged right.

Three of the nine, Counts I, II, and III, are federal claims. Count I alleges a violation of procedural due process of Rubin's liberty interest in First Amendment free speech. Count II replaces free speech with academic freedom. Count III alleges a liberty interest in academic freedom created by state law.

The remaining six procedural due process counts are state claims. Counts X, XI, and XII allege liberty interests in free speech, academic freedom, and academic freedom created by state law. They seek declaratory and injunctive relief. Counts XVIII, XIX, and XIX make corresponding allegations but seek damages.

C. Non Due Process Counts

The six remaining counts do not allege any violation of due process. Two are federal claims. Count VII alleges a violation of Rubin's First Amendment rights, and Count VIII adds academic freedom to Count VII. Four are state claims. Counts XVI and XXIV allege a violation of Rubin's right to free speech, and Counts XVII and XXV allege a violation of Rubin's right to academic freedom. The lower-numbered count in each pair is a claim for declaratory and injunctive relief; the higher-numbered count is a claim for damages.

II. Substantive Due Process Counts

A. Federal Claims for Substantive Due Process Violations

Only laws affecting fundamental rights come within the scope of substantive due process. National Paint & Coatings Ass'n v. City of Chicago, 45 F.3d 1124, 1129 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2579, 132 L.Ed.2d 829 (1995). Fundamental rights are "among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." (Internal quotation marks omitted.) Kraushaar v. Flanigan, 45 F.3d 1040, 1047 (7th Cir. 1995). They are enumerated in the Constitution or are "so fundamental in our society that a state may not unjustly take them away." Taahira W. by McCord-Salley v. Travis, 908 F. Supp. 533, 537 (N.D.Ill. 1995); accord Kraushaar, 45 F.3d at 1047.

Substantive due process insulates these fundamental rights from unjustified governmental intrusions. Reno v. Flores, 507 U.S. 292, 301-03, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993); Kraushaar, 45 F.3d at 1047; Gosnell v. City of Troy, Ill., 59 F.3d 654, 657 (7th Cir. 1995). The government may not "infringe certain `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." (Emphasis in original.) Reno, 507 U.S. at 302, 113 S.Ct. at 1447. Therefore, substantive due process analysis begins with a careful description of the asserted right and an inquiry as to whether it is fundamental. Id.

The Supreme Court recently held that:

  Where a particular amendment [to the Constitution]
  provides an explicit textual source of constitutional
  protection against a particular sort of government
  behavior, that Amendment, not the more generalized
  notion of "substantive due process," must be the
  guide for analyzing these claims.

(Internal quotation marks omitted.) Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (plurality opinion). In other words, if a constitutional amendment exists to restrict the ability of the government to intrude upon personal liberties in an unjustified way, then that constitutional amendment provides the appropriate analytical framework for a complaint. Id.; National Paint, 45 F.3d at 1129. Substantive due process alone can offer a claimant no relief. Albright, 510 U.S. at 275-77, 114 S.Ct. at 814. Substantive due process is an inappropriate substitute for constitutional analysis where the Constitution directly addresses a subject. Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995).*fn1

In Albright, the petitioner argued that the respondent had "deprived him of substantive due process under the Fourteenth Amendment — his `liberty interest' — to be free from criminal prosecution except upon probable cause." Albright, 510 U.S. at 269, 114 S.Ct. at 810-11. The Supreme Court held that the petitioner's claim must be brought under the Fourth Amendment and not as a violation of substantive due process. Id., at 273-75, 114 S.Ct. at 813.

In the present case, Rubin argues that Defendants deprived him of substantive due process by violating his liberty interest in his First Amendment rights to free speech. (Complaint, Count IV.) The First Amendment confers fundamental rights. McIntyre v. Ohio Elections Com'n, ___ U.S. ___, ___ n. 1, 115 S.Ct. 1511, 1514 n. 1, 131 L.Ed.2d 426 (1995); Marshall v. Allen, 984 F.2d 787, 798 (7th Cir. 1993). Rubin's substantive due process violation allegation functions as a repeat claim of a First Amendment violation. The petitioner in Albright could not argue under the rubric of substantive due process instead of the applicable constitutional amendment. Rubin may not present a First Amendment argument as a substantive due process violation. Accordingly, Defendants' Motion for Summary Judgment is GRANTED as to Count IV.

Count V alleges a liberty interest in First Amendment academic freedom. Academic freedom falls within the parameters of the First Amendment and is a special concern of the First Amendment. University of Pa. v. E.E.O.C., 493 U.S. 182, 194-99, 110 S.Ct. 577, 585-87, 107 L.Ed.2d 571 (1990); Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226-27, 106 S.Ct. 507, 514, 88 L.Ed.2d 523 (1985); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 2759-60, (1978). Academic freedom does not tolerate that which "casts a pall of orthodoxy over the classroom" which is the "`marketplace of ideas.'" Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967).

Academic freedom is not an independent First Amendment right. Bishop v. Aronov, 926 F.2d 1066, 1075 (11th Cir. 1991), cert. denied, sub nom Bishop v. Delchamps, 505 U.S. 1218, 112 S.Ct. 3026, 120 L.Ed.2d 897 (1992). The term academic freedom is equivocal. Piarowski v. Illinois Community College Dist. 515, 759 F.2d 625, 629 (7th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). As a type of speech, academic freedom receives some protection from governmental abridgment by the First Amendment. Id. Deference to this right is appropriate. Knight v. State of Ala., 14 F.3d 1534, 1552 (11th Cir. 1994).

Academic freedom refers to the freedom of university professors and the university administrators to function autonomously, without interference from the government. Piarowski, 759 F.2d at 629; Osteen v. Henley, 13 F.3d 221, 225-26 (7th Cir. 1993); Ross v. Creighton Univ., 957 F.2d 410, 414-15 (7th Cir. 1992). It also refers to the freedom of individual teachers to not suffer interference by the administrators of the university. Piarowski, 759 F.2d at 629; Keen v. Penson, 970 F.2d 252, 257 (7th Cir. 1992). These two freedoms can come into conflict. Piarowski, 759 F.2d at 629; Keen, 970 F.2d at 257. The academic institution enjoys a position of supremacy in addressing curriculum content. Keen, 970 F.2d at 257. Academic freedom does not license uncontrolled expression which is detrimental to the institution's proper functioning. Id.

If Count V is a restated First Amendment claim, it fails as a matter of law under Albright, as Count IV did. If Count V is an academic freedom claim, it fails because academic freedom, while an extremely important right, is not a "fundamental right" as is required for a right to receive substantive due process protection. National Paint, 45 F.3d at 1129. Academic freedom is a "special concern" of the First Amendment. See Reno, 507 U.S. at 301-03, 113 S.Ct. at 1447; National Paint, 45 F.3d at 1129. By contrast, substantive due process protection is reserved for "matters relating to marriage, family, procreation, and the right to bodily integrity." Albright, 510 U.S. at 272, 114 S.Ct. at 812. Thus, Defendants' Motion for Summary Judgment is GRANTED as to Count V.

Count VI alleges a liberty interest in academic freedom as created by state law, specifically the Illinois Constitution. (Response to Reply, p. 3.) Substantive due process protects fundamental rights enumerated in the Constitution and other unenumerated "significant interests" that usually relate "to marriage, family, procreation, and the right to bodily integrity." Kraushaar, 45 F.3d at 1047; Albright, 510 U.S. at 272, 114 S.Ct. at 812. A liberty interest in a state-created right to academic freedom is neither an enumerated fundamental right nor anything like the other unenumerated significant interests which would indicate that it deserves substantive due process protection. See Kraushaar, 45 F.3d at 1047. Thus, academic freedom as created by state law is not protected under the substantive due process rubric.

Furthermore, "the Supreme Court has never held that such state-created interests constitute a fundamental liberty interest protected under a substantive due process theory. Rather, the Court has analyzed state-created liberties under a procedural due process theory." Id. (emphasis in original); accord Robinson v. Howell, 902 F. Supp. 836, 843 (S.D.Ind. 1995). State law is not a proper starting point from ...


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