Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
RUBIN v. IKENBERRY
May 29, 1996
LOUIS RUBIN, PLAINTIFF,
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.
Before the Court is Defendants' Motion for Summary Judgment [#
19]. For the reasons set forth below, the Motion is GRANTED.
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.)
A copy of Braun's grievance is attached to the Complaint, which
alleges that Anderson's
grievance is "substantially similar." (Complaint, ¶ 39.) Rubin
received a copy of the grievances the same day. Id., ¶ 37, Exh.
C; Rubin Dep., p. 51. He also received notice of a January 30,
1990 meeting to which he was invited to bring counsel.
(Complaint, ¶ 42; Rubin Dep., Exh. 1.) He attended without
counsel. (Complaint, ¶ 46.) Present at that meeting were
Defendants Pearson and Manolakes and Steven Veasie, University
legal counsel at the Champaign-Urbana campus of the University.
Id., ¶ 49. The parties dispute the extent to which Rubin had
the opportunity to explain himself at that time. Id., ¶¶ 50-51;
Memo. in Opp., p. 4 (stating that Rubin was given only "an
opportunity to give brief reasons for having made the statements"
that he made); contra Manolakes Dep., pp. 132-34; Ken Anderson
Dep., p. 57; Veasie Dep., pp. 78-80.
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
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
(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
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.
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.
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.
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
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
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 ...