investigating plaintiff's claims of misconduct. See Qvyjt, 932 F. Supp. at 1104-05. From November 1993 to at least July 1994, plaintiff was barred from using the laboratory, apparently without being given any option with respect to selecting a different advisor. Then, plaintiff's dissertation committee informed him that he must select a different advisor, and, for reasons which are unknown to the court, that he must also begin a new dissertation topic as well. Plaintiff requested to have an outside professor serve as his advisor, and for approximately four months, his requests were refused. Then, in November 1994, he was tossed a bone-- he could select an outside professor, but he must still begin a new dissertation topic. Drawing all reasonable inferences in favor of plaintiff, as the court has just done, the court finds that plaintiff has presented evidence from which a reasonable trier of fact could find that defendants retaliated against plaintiff for his accusations of misconduct against Dr. Lin.
It has been assumed in the discussion thus far that plaintiff's accusations constituted a "protected expression" under the First Amendment. Defendants still contest whether such accusations were a protected expression, and it is upon this basis that they seek to raise the defense of qualified immunity. That is, they contend that plaintiff did not engage in a protected expression, and, even if he did, it was not clearly established that it was a protected expression at the time of defendants' conduct. The court shall resolve both contentions in its discussion of the qualified immunity defense.
In considering the defense of qualified immunity, the court uses a two-step analysis: "(1) Does the alleged conduct set out a constitutional violation? and (2) Were the constitutional standards clearly established at the time in question?" Kernats v. O'Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994). Once the defense is raised, the plaintiff bears the burden of establishing the existence of a clearly established right. Id. To demonstrate that a right is "clearly established," a plaintiff need not show that the very action in question was previously held unlawful, or that a prior case is "on all fours" with the case and the law in his or her own case. Forman v. Richmond Police Dep't, 104 F.3d 950, 1997 WL 15243, at *6 (7th Cir. 1997). In fact, a plaintiff need not cite to any case at all if the constitutional violation is obvious. Kernats, 35 F.3d at 1176. In all but the obvious cases, however, it is usually necessary to cite to closely analogous cases, decided before the defendants acted or failed to act, delimiting the contours of the right with sufficient clarity such that a reasonable official would understand that what he is doing violates that right at the time of the incident. Id.
As to the first prong, the court has already found that plaintiff has presented evidence from which a reasonable trier of fact could conclude that defendants violated his First Amendment rights. That finding, however, was based on the assumption that plaintiff's accusations regarding Dr. Lin constituted a protected expression under the First Amendment. Defendants persist in arguing that plaintiff's complaints about Dr. Lin were not protected expressions under the First Amendment. This line of attack is based on arguments made in their prior motion for summary judgment-- that the speech must be a matter of public concern in order for it to be protected, premised on Pickering v. Board of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968) and Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). These arguments were rejected by this court in its opinion denying defendants' prior motion for summary judgment as to Counts II and III, see Qvyjt, 932 F. Supp. at 1109, and again in its opinion denying defendants' motion to reconsider, see Minute Order of September 20, 1996. The only aspect of their argument which may be new is their reliance on Brookins v. Kolb, 990 F.2d 308 (7th Cir. 1993), a case involving an inmate's First Amendment claims. Defendants argue that the Pickering and Connick analysis applied in that case, thus supporting their contention that such analysis is not limited to government employer-employee relationships.
As this court has previously held in this case, the governmental interests present in a governmental employer-employee relationship, which led the Supreme Court to extend Pickering and Connick to other situations, see Board of County Comm'rs, Wabaunsee County v. Umbehr, 135 L. Ed. 2d 843, 116 S. Ct. 2342, 2347 (1996) (extending Pickering to a government-independent contractor relationship), are simply not present in the state university-student relationship before this court. See Qvyjt, 932 F. Supp. at 1108-09. Moreover, the driving force behind the Seventh Circuit limiting a prisoner's First Amendment rights in Brookins was the fact of the prisoner's incarceration. See Brookins, 990 F.2d at 312. Thus, Brookins adds nothing to this discussion. Defendants' arguments boil down to one key question-- whether plaintiff's status as a graduate student, as opposed to an undergraduate or a secondary school student, removes this case from the panoply of cases involving a student's exercise of his or her First Amendment rights. This court holds now, as it has before, that it does not.
To find support for this conclusion, the court need not go any further than to consider Papish v. Board of Curators of the Univ. of Missouri, 410 U.S. 667, 35 L. Ed. 2d 618, 93 S. Ct. 1197 (1973) (per curiam). The plaintiff in that case was a graduate student (as opposed to a graduate student-employee) enrolled in the University of Missouri School of Journalism who was expelled for distributing on campus a newspaper containing forms of indecent speech. Id. at 667. In considering the plaintiff's claims, the Supreme Court applied the principles it previously established in student speech cases such as Healy v. James, 408 U.S. 169, 33 L. Ed. 2d 266, 92 S. Ct. 2338 (1972) and Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). The Court made it clear in Papish that a state university cannot punish a graduate student for the content of his or her speech. See Papish, 410 U.S. at 670-71. Application of the principles enumerated in Pickering did not enter into the Court's analysis, nor have the principles of Pickering and Connick ever been a part of the Court's analysis in student speech cases. Thus, whether the speech touches matters of private or public concern simply is not part of the proper analysis when considering a student's claim under the First Amendment.
Having concluded that plaintiff has rebutted the first prong of the qualified immunity defense, the court turns to the second prong-- whether the constitutional standards were clearly established at the time defendants acted. Plaintiff cites to Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) for his argument that it is obviously a violation of the Constitution for a governmental body to retaliate against a person for exercising his or her First Amendment rights. In response to this argument, defendants contend that plaintiff improperly frames the issue too broadly, relying on Mozzochi v. Borden, 959 F.2d 1174, 1178-79 (2d Cir. 1992). Framing the issue to be whether it is a violation of the First Amendment for university professors to retaliate against a graduate student for his complaining about private disputes with his professors, defendants contend that there is no case which even remotely reaches the required level of specificity.
For reasons already stated, Tinker, Healy and Papish provide for the rule of decision in this case, and these decisions were handed down by the Supreme Court over twenty years ago. Admittedly, this court has not found any case specifically addressing defendants' argument that a graduate student's First Amendment right to free expression is limited to matters of public concern. Defendants rely on Kelleher v. Flawn, 761 F.2d 1079 (5th Cir. 1985) and Siblerud v. Colorado State Bd. of Agric., 896 F. Supp. 1506 (D. Colo. 1995), but as this court observed in its prior opinion in this case, neither decision is directly on point. In Kelleher, the plaintiff was an assistant instructor, in addition to being a graduate student, at the state university and was reassigned to a different teaching assignment allegedly in retaliation for expressing certain political opinions in the courses she taught. Kelleher, 761 F.2d at 1082-83. Thus, unlike here, the First Amendment issue in that case arose in the context of an employment relationship. As to Siblerud, not only is it distinguishable, see Qvyjt, 932 F. Supp. at 1109, but it improperly applied First Amendment law. The court in Siblerud, without any rationale whatsoever, likened a graduate student-state university relationship to a state employer-employee relationship. The state employer-employee relationship is not an appropriate analogy. See Papish, 410 U.S. at 670; Qvyjt, 932 F. Supp. at 1108-09. In the court's opinion, the absence of a reported case directly on point demonstrates nothing more than widespread compliance with the well-recognized constitutional principles of Tinker, Healy, Papish and the like. See Eberhardt v. O'Malley, 17 F.3d 1023, 1028 (7th Cir. 1994) (widespread compliance with well-recognized constitutional principles can account for lack of reported decisions). Thus, the court finds that it was clearly established by no later than 1973, when the Supreme Court decided Papish, that state university officials cannot retaliate or punish a graduate student for the content of his speech, regardless of whether that speech touches matters of public or private concern. Defendants' defense of qualified immunity, therefore, must fail. Accordingly, for the foregoing reasons, defendants' renewed motion for summary judgment is denied.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: February 11, 1997