are not necessarily co-extensive with the rights of adults in other settings, their expressions will generally be protected as long as they do not "materially and substantially interfere with the requirements of appropriate discipline" or collide with the rights of others. Tinker, 393 U.S. at 513.
Here, plaintiff lodged allegations of misconduct against his doctoral advisor. Defendants would have this type of speech protected only if it was a matter of public concern. It would be incredulous to think that the university has carte blanche to retaliate against any student as long as the speech was of a private concern or was made to vindicate the student's private interest. Defendants' position, if adopted, would have a significant chilling effect upon students' ability to express their opinions, beliefs and ideas. Defendants have not submitted, nor is this court aware of, any controlling authority which would limit students' protected speech to matters of public concern. The governmental interests present in an employer-employee relationship, which led the Supreme Court to extend Pickering and Connick to independent contractors, are not present in a student-university relationship.
The court is not persuaded by defendants' reliance on Kelleher and Siblerud. In Kelleher, the plaintiff was an assistant instructor in addition to being a graduate student and was reassigned to a different teaching assignment allegedly in retaliation for expressing political opinions in the courses she was teaching. Kelleher, 761 F.2d at 1082-83. Thus, the retaliation arose from her activities as an employee of the university making the court's application of government employment precedents appropriate. No similar facts are present here, as plaintiff engaged in his expression as a student and his status as a student allegedly suffered as a result. Similarly, Siblerud involved a student who misrepresented his association with the university after being warned not to do so. Siblerud, 896 F. Supp. at 1509. The court distinguished Tinker, stating that his expression did not involve the expression of opinions, beliefs or values. Id. at 1518. Instead, the speech at issue in Siblerud was in direct violation of a valid disciplinary measure due to his suspended academic standing, id. at 1519, and it is on this basis that the court finds Siblerud distinguishable. Accordingly, the court declines to apply Connick to plaintiff's speech in this case and therefore rejects it as a basis for granting defendants' motion on Counts II and III.
Defendants also contend that plaintiff did not engage in protected expression because plaintiff's speech was false and made with actual malice, relying on the principle that government employees' speech is not protected if it is false and made with actual malice even if it involves a matter of public concern. Brenner v. Brown, 36 F.3d 18, 20 (7th Cir. 1994). Plaintiff contends that his speech was protected because it was true and involved a matter of public concern.
Generally, the inquiry into the protected status of speech is one of law, not fact. Connick, 461 U.S. at 148 n.7. In defamation cases, however, the determination of whether the speaker acted with actual malice is made by the trier of fact. See, e.g., Libbra v. City of Litchfield, 893 F. Supp. 1370, 1378 (C.D. Ill. 1995). Although defendants rely on Libbra for the proposition that the inquiry into the existence of actual malice is subsumed in this court's inquiry into the protected status of plaintiff's speech, making the issue of actual malice an issue of law, Libbra did not so find; rather, the court in Libbra avoided resolution of this legal dilemma by finding actual malice as a matter of law (i.e., no rational trier of fact could find otherwise). See id. at 1378. Like the district court in Libbra, this court need not resolve this issue, as the facts presented by defendants do not support a finding of actual malice.
A statement is made with actual malice if it is made with knowledge of falsity or reckless disregard for the truth. Brenner, 36 F.3d at 20. Defendants present uncontradicted evidence that Pin Lin, under the direction of Dr. Lin, developed a formulation essentially similar in nature to plaintiff's P69 formulation at least three months prior to plaintiff's development of P69. While this evidence, assumed to be true for purposes of this motion, might support the conclusion that Dr. Lin did not misappropriate plaintiff's formula,
it does not show plaintiff was aware of Pin Lin's prior development of this formula or that he knew Dr. Lin based the patent application on Pin Lin's research. The evidence simply does not show plaintiff acted with either knowledge of falsity or reckless disregard for the truth. Thus, even if it was the duty of this court to resolve the issue of actual malice, it could not resolve it in favor of defendants on the record before it. Accordingly, defendants' motion is denied with respect to Counts II and III.
For the foregoing reasons, defendants' motion for summary judgment is granted with respect to Count I and denied with respect to Counts II and III.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: July 23, 1996