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Gerian Steven Moore, and George Providence Ii v. Wayne Watson

March 13, 2012

GERIAN STEVEN MOORE, AND GEORGE PROVIDENCE II, PLAINTIFFS,
v.
WAYNE WATSON, PRESIDENT OF CHICAGO STATE UNIVERSITY, AND ERMA BROOKS WILLIAMS, ASSOCIATE TO PRESIDENT FOR COMMUNICATIONS AND EXTERNAL RELATIONS, IN THEIR OFFICIAL CAPACITIES DEFENDANTS.



The opinion of the court was delivered by: Hon. Rebecca R. Pallmeyer

MEMORANDUM OPNION AND ORDER

This suit was brought to challenge the alleged efforts of administrators at Chicago State University to control the content of Tempo, the University's student newspaper. Plaintiffs are George Providence II, the former student editor of the newspaper, and Dr. Gerian Steven Moore, who acted as faculty advisor for the paper until October 2008, when he was terminated from his position in the University's public relations office. Providence and Moore claim that the University terminated Moore in retaliation for a series of news stories critical of University administration and then took action to undermine the newspaper's publication and cause its ultimate demise. Specifically, Plaintiffs allege that officials required Providence to submit newspaper copy for pre-publication review, delayed the paper's publication, imposed restrictions on interviews with University staff, withdrew funding for the paper, and locked Providence out of the newspaper office. Publication of Tempo ended after Spring 2009, when Providence withdrew from the University. In this lawsuit, tried to the bench in April 2011, Plaintiffs assert claims under the First Amendment and the Illinois College Campus Press Act, 110 ILCS 13/1 et seq.,*fn1 against Defendants, administrators of the University named in their official capacities, seeking declaratory and injunctive relief.*fn2

As explained below, the court concludes that Plaintiffs have proven their case in part and grants limited relief. The court directs that Plaintiff Moore be reinstated and that Defendants purge any negative references in his personnel records. Plaintiffs' request for additional declaratory and equitable relief is denied.

FACTUAL FINDINGS*fn3

I. Parties

Plaintiff Gerian Steven Moore is a former employee of Chicago State University ("the University" or "CSU"), a state educational institution located on Chicago's south side. (UF ¶ 4.) Moore earned his Ph.D. in American Culture at the University of Michigan and had taught at several other colleges before coming to CSU. (Moore CV, Pls.' Ex. 1.) Then-CSU President Dr. Elnora Daniel hired Moore as a lecturer in the Department of AfricanAmerican Studies for the Fall 2007 semester. (Letter from Daniel to Moore of 5/31/2007, Pls.' Ex. 2.)Due to low registration, however, the University canceled the class Moore was scheduled to teach, and President Daniel reassigned him to a position as Special Assistant to the President. In that capacity, Moore was responsible, among other projects, to re-establish Tempo, the then-inactive student newspaper. (Trial Tr. at 92-93.) Moore reported to Daniel directly until December 26, 2007, when Daniel appointed Moore to the position of Executive Director for Communications. In that capacity, Moore reported directly to Dr. Beverly M. John, Interim Vice President for Administrative Services and Enrollment Management. (Letter from Daniel to Moore of 12/26/2007, Pls.' Ex. 12.) Moore signed a one-year employment contract on January 17, 2008. (Defs.' Ex. 5.) In September 2008, as explained below, Moore was reassigned to report to Patricia Arnold, Executive Director of University Relations. (UF ¶¶ 5, 14.)

Plaintiff George Providence II was, at age forty-eight, an unconventional college sophomore at CSU who had previously attended several other colleges, including Oakton Community College, where he had served as editor of that college's student newspaper. (Trial Tr. at 175-76.) In March 2008, when Tempo resumed operations, Providence became a columnist forthe paper, but within a few weeks, he was elevated to editor-in-chief. (Id. at 178-79; UF ¶ 11.) Providence served in that capacity until the spring semester of 2009, when he resigned as editor and withdrew from the University. Providence currently owes CSU an outstanding tuition debt (Trial Tr. at 361), but is otherwise free to return to campus as a student.*fn4

Defendant Dr. Wayne Watson is the President of CSU, and Defendant Erma Brooks Williams is the chief public relations officer at the University. Both Watson and Williams assumed their positions after the relevant events in this case occurred. Upon Plaintiff's motion, they were substituted as Defendants in place of their predecessors, Interim President Dr. Frank G. Pogue and Executive Director of University Relations Patricia Arnold. (Minute Entry [34].) Pogue replaced President Daniel after a well-publicized scandal involving the misappropriation of school funds reportedly forced her resignation in June 2008. See Improper Spending at School, Audit Says, CHI.

TRIB., May 16, 2008, at Metro 3; Jodi S. Cohen, Fractured Chicago State Picks Interim Chief, CHI. TRIB., May 8, 2008, at Metro 3 . CSU hired Patricia Arnold in August 2008 to manage marketing and public relations matters as Director of University Relations. (Trial Tr. at 14-15.)*fn5 Before arriving at CSU, Arnold had a career as a public relations consultant, having worked earlier as a broadcast journalist at KSTP TV in Minneapolis and then for ABC 7 Chicago. (Id. at 13-14.) After a month at CSU, she was promoted to Executive Director of University Relations, becoming Moore's direct supervisor. (Id. at 15-16.) The date of, or reasons for Arnold's departure from the University are not in the record.

II. Tempo

Until it ceased publication in April 2009, Tempo was the official student newspaper of Chicago State University. The newspaper has been published only sporadically over the course of its history, and not at all during 2006 and 2007. (Pls.' Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. (hereinafter "Pls.' 56.1") ¶ 10.) The record does not reveal why Tempo ceased publication in 2006, but in 2007, the University made a concerted effort to re-establish Tempo after an accreditation association commented unfavorably on the absence of a student-run newspaper at the University. (Trial Tr. at 93-94.)

After President Daniel charged Moore with re-establishing the paper, Moore issued a memorandum entitled "The Way Forward: Re-establishing the College Newspaper at Chicago State University." (Memorandum, Pls.' Ex. 5.) Moore's memorandum presented a series of recommendations based upon Moore's research into the successes and failures of college newspapers at historically black colleges and inquiries Moore made with other college newspapers in Illinois. (Trial Tr. at 96-97.) These recommendations included proposals for establishment of an advisory committee and the hiring of a full-time business manager. (Pls.' Ex. 5, at 2-3.) In the memorandum, Moore also cautioned against requiring students to submit the paper to a college administrator for prior review, noting that the Illinois legislature had recently passed the College Campus Press Act, designating student-run college newspapers as public forums. (Id. at 9-10.)

The memorandum was well received by administrators at the University, including President Daniel, who gave Moore the go-ahead to re-establish Tempo. (Trial Tr. at 99.) As recommended in the memorandum, in January 2008 the University hired Timothy Edwards as Tempo's business manager, responsible for administrative aspects of the paper such as distribution, advertisement, and expenses. (Id. at 332-33.) In March 2008, Tempo resumed regular operations as a weekly newspaper and, within a few weeks, Providence became editor-in-chief.

Once Tempo resumed operations, Moore served as faculty advisor. As Moore had proposed in his memorandum on re-establishing Tempo, the faculty advisor's role was to advise the students on proper journalistic process and protocol. (Pls.' Ex. 5, at 11.) Specifically, his memo described the faculty advisor's role as "safeguard[ing] the journalistic integrity of the newspaper" by "making sure that proper journalistic protocols are followed in gathering and reporting of the news." (Id.) To that end, Moore distributed to the Tempo staff copies of "The News Writer's Handbook," obtained from the website for the Journalism Education Association and adopted by Moore for Tempo's purposes with permission from the author. (Trial Tr. at 101-03.) Moore also arranged to have Tempo staff meet with staff members of The Chicago Maroon, the University of Chicago's independent student newspaper, to learn about newspaper layout and formatting. (Id. at 121.) In his memorandum, Moore was careful, however, to note that a faculty advisor was "not charged with the responsibility of reporting, editing copy, or determining what stories are actually published in the paper. As with any newspaper, the editorial policy of the student newspaper is independent of its day-to-day administration and management." (Pls.' Ex. 5, at 11.) Consistent with this understanding of a faculty advisor's role, Moore never asked Providence to provide him a draft of an issue before it was published, although Moore and Providence did often discuss article ideas that Providence was considering for Providence's own column. (Trial Tr. at 191-92, 194.) Instead, Moore met with Providence each week after that week's issue was published to review the issue, page by page, and discuss mistakes and areas for improvement. (Id. at 192-93.)

During the spring semester of 2008, Providence and his staff published a number of articles that were critical of the University and its administration, including Moore's direct supervisor at the time, Interim Vice President Beverly John. On April 10, 2008, for example, Tempo ran an article criticizing CSU's athletic department for delays in distributing scholarship funds to student athletes. (Tempo, Apr. 10, 2008, Pls.' Ex. 16, at 1.) The article quoted John, who in response to questions about why President Daniel failed to meet with the complaining student-athletes, reportedly stated, "[T]he students have to understand that there is a protocol and process in place. They must meet with their coaches, then the athletic director and so on before coming to the administration." (Pls.' Ex. 16.) The next week, Tempo ran a story on the arrest of CSU's head baseball coach for allegedly assaulting a team member. (Tempo, May 8, 2008, Pls.' Ex. 17, at 1.) In an editorial written by Providence several weeks later, Providence insinuated that the Board of Trustees should fire John for scandals that included problems in the athletic department. (Tempo, May 8, 2008, Pls.' Ex. 20, at 2.)*fn6 In the last issue of the spring semester of 2008, Tempo published yet another controversial article, quoting the University's Financial Aid Director as having made derogatory and racially-charged statements about the CSU student body.*fn7 When asked for comment, the article quotes John as stating:

I know you think that you have unearthed something that is damaging to this university, and I will not assist you in furthering it along. You shalln't [sic] get a comment from me. The job of the journalist is to search for the spectacular, and I know that that is what you are trying to do. . . . You need to search your soul as a journalist and as a human being, about what your motivations are for doing this kind of story. (Tempo, May 15, 2008, Pls.' Ex. 21, at 1.)

In the wake of this last article, Robyn Wheeler, Director for Media and University Relations, called Moore on May 16, 2008, to suggest "instituting a policy to require administrators to go through a screening process before they would talk to student journalists." (Trial Tr. at 146.) In response to this proposal, Moore sent a memorandum to Dr. Sandra Westbrooks, Provost and Vice President of Student and Academic Affairs,*fn8 in which Moore cautioned against "requiring student reporters to get approval before interviewing members of the University administration" because he believed limiting student reporters' access to administrators would be perceived as limiting press freedom. (Memorandum, Pls.' Ex. 22.) Moore testified that to his knowledge, Wheeler decided against adopting such a policy. (Trial Tr. at 141.)

Some time between late August and early September 2008, Moore sought to carry out another of the recommendations he had set forth in his memorandum: establishing an advisory board for Tempo. Moore invited Linda Simpson, a subordinate within his department, and Patricia Arnold, who had recently been hired by Interim Present Pogue, to join the board because both Simpson and Arnold had journalism experience. (Id. at 146.) In addition to "help[ing] improve the paper, provid[ing] guidance to the student editors and the editorial board and . . . tak[ing] some of the pressure off [him]," Moore hoped the advisory board would help dispel "rumors that were floating around the campus that [he] was the one instigating the articles that were critical of the university." (Id.)

As a member of the advisory board, Arnold offered to edit each issue before it went to print in order to correct the many grammatical and spelling errors that plagued the newspaper.*fn9

According to Moore, when Arnold first raised the issue in an advisory board meeting,*fn10 Moore attempted to explain that public university administrators lack authority to review the paper prior to publication and that review by such administrators generally occurred after publication, as had been his practice in advising Providence. (Id. at 151.) According to Moore, reviewing issues after they were published did not make sense to Arnold. (Id.) After Moore relayed Arnold's pre-publication review offer to Providence, Providence responded directly, explaining in an e-mail message to Arnold on September 24, 2008, that while he could not acquiesce to a request "to review upcoming issues of Tempo prior to their publication," he asked the advisory board to "commit to going over each issue of Tempo and marking it up with respect to its shortcoming and deficiencies." (E-mail, Pls.' Ex. 23.) In an e-mail reply sent the next day, Arnold wrote that she was not sure how marking up issues after publication would be useful. (Id.) She asked, "If you misspell words, for example, how would remarks on an old issue address those errors, unless you're using the same words in subsequent issues? Ditto for syntax, punctuation." (Id.) She also questioned whether inexperienced student editors were capable of proofreading the paper. (Id.) Arnold concluded that proofreading the paper after publication was not a productive use of her time. (Id.) Several days later, Arnold followed up with an e-mail message dated October 6, 2008, in which she explained that she would no longer serve on the advisory board "since advisory board members are not allowed to point out spelling and grammar errors and violations of journalistic standards prior to publication." (E-mail, Pls.' Ex. 30.)

III. Moore's Termination

By the end of the 2008 spring semester, Moore's relationship with Interim Vice President John had deteriorated as a result of Tempo's reporting. (Trial Tr. at 127-28.) At the beginning of September 2008, Moore and Linda Simpson asked Interim President Pogue for a different reporting line because of the mounting tension. (Id. at 167-68; Moore Dep., Ex. F to Defs.' 56.1, at 149-151.) Pogue granted their request and Moore was reassigned to report to Katey Assem, Patricia Arnold's supervisor. (More Dep. at 151.) Shortly thereafter, Patricia Arnold, whom Pogue promoted to Executive Director for University Relations in an administrative reorganization, became Moore's direct supervisor on approximately September 14th or 15th. (UF ¶ 5, 14; Trial Tr. at 147.)

In late September 2008, Arnold asked Moore to prepare two press releases on behalf of the University. Arnold explained that she needed assistance from her staff in writing press releases because she had been charged by Pogue to issue five press releases per week. (Trial Tr. at 392-93.) She chose to assign release writing to Moore after he disclosed, in response to a "capabilities survey," that he had ten years' experience in news releases. (Id. at 397; Defs.' Ex. 9.) Moore delivered the first press release to Arnold via e-mail on September 25, 2008, and the second on September 30. (Defs.' Exs. 7, 8.) Arnold found both of these submissions unsatisfactory. (Trial Tr. at 399.) Arnold testified that Moore's press releases were deficient because they lacked a headline, lacked a release date, and lacked hash marks signifying where the release ended. (Id.) Additionally, one of the press releases covered the wrong event; Arnold claims she asked Moore to write a press release about the dedication of the new Convocation Center coming up on October 7, 2008, but Moore instead prepared a press release about the convocation ceremony at the start of the new semester that had occurred at the Convocation Center on September 10, twenty days earlier. (Id. at 398; Defs.' Ex. 7.) Moore claims that Arnold never explained to him that she needed final drafts for the press releases, so he prepared only rough drafts. (Trial Tr. 149-50.) Arnold concedes she never informed Moore about her dissatisfaction with the quality of his work. (Id. at 399-400.)

On September 29, 2008, Interim Vice President Beverly John sent Arnold a transition memorandum, ostensibly to provide Arnold with some "insight" concerning the staff members who had been transferred to Arnold's supervision. (Transition Memo, Pls.' Ex. 27.) John's memo was critical of Moore's credibility and performance, particularly regarding his work with Tempo. Specifically, John accused Moore of "buil[ding] a tenor of dishonesty and deceit" at the University. (Id.) "I firmly believe that[ ] Moore is behind the negative tenor of the student newspaper," John wrote. (Id.) She further accused Moore and Providence of "soliciting non-TEMPO staff to encourage employees to speak with the paper since many have come to link Moore with the negative stories." (Id.) At trial, Arnold confirmed her deposition testimony that sometime at the end of September or the first week of October, she received the memo in interoffice mail and contacted John to discuss it. (Trial Tr. at 32.)

On October 6, 2008, Arnold sent an e-mail message to Moore, Providence, and Linda Simpson, notifying them that she had "just learned inadvertently that it is a conflict of interest for this department's staff members to serve as advisers to student media because, as the College Media Advisers' Code of Ethics states: 'The publicity interests of the university and the news goals of the student media are often incompatible.'" (E-mail, Pls.' Ex. 30.)*fn11 Arnold concluded specifically that it was a conflict of interest for Moore, as the "University's Director of External Relations" to continue to serve as Tempo's adviser.*fn12 Arnold testified that she had come across the College Media Advisers' website while searching for information on prior review during her previous e-mail exchange on that subject with Moore and Providence. (Trial Tr. at 412.) Arnold asked for a list of eligible faculty member replacements within two days because, she explained, she wanted a new adviser installed no later than October 15. (E-mail, Pls.' Ex. 30.) Arnold also asked Moore "to remain as interim adviser[ ] until a faculty or staff member from another department assumes that role permanently." (Id.)

On October 9, 2008, Tempo published the first part of a two-part article, entitled Smoke and Mirrors, which questioned discrepancies in the funding of a fashion show hosted by a student-run modeling organization the prior semester. The show featured performances by DJs from a local radio station and an R&B singer. (Tempo, Oct. 9, 2008, Pls.' Ex. 37, at 1.) According to the articles, the student organization was the first to host an event at the newly built Convocation Center, which took place, coincidently, on the day the Chicago Tribune ran a story on financial irregularities at the University. (Id.; Tempo, Oct. 16, 2008, Pls.' Ex. 38, at 1.)*fn13 The Tempo article reported that a former member of the organization questioned how the organization, which reportedly started the school year with $1500, had acquired the funds necessary to host an event estimated to cost approximately $22,000.

Arnold and Moore discussed the first article the day it was published, October 9, 2008, in Arnold's office. (Trial Tr. at 159-60.)*fn14 According to Moore, the first statement Arnold made upon his arrival in her office was that "George is out of control. He needs to be stopped. He is hurting people." (Id.) Moore also testified that Arnold told him that she felt that the article was libelous and that the University might be subject to suit. (Id.) In response, Moore contends, Moore told Arnold, "George can be difficult at times . . . but as to the story itself, whether or not he . . . had a right to publish that[,] I said it's a legitimate question. I said the discrepancies between the reported $1500 that the student organization had on hand and the estimated cost of $22,000 of the event, I said that's a huge discrepancy, which poses a legitimate journalistic question." (Id. at 160-61.) Moore recalls that Arnold, in reply, told him that the funding of the event "was a private matter, that there were donors that supported the event, and that they had a right to remain private and that it was none of George's business." (Id. at 161.) At one point at trial, Arnold denied having met with Moore to discuss the article (Id. at 435), but the court credit's Moore's version. Arnold's denial is inconsistent with (a) an affidavit she signed, in which she recalled Moore asking her about the article (Arnold Aff. ¶ 3, Ex. B. to Defs.' Answer to Pls.' 56.1), and (b) her own earlier trial testimony in which she admitted having a conversation with Moore in which she commented on "how unconscionable [the article] was," but denied saying anything about Providence. (Trial Tr. at 422.) Moore characterized Arnold's demeanor during the conversation as "either angry or extremely frustrated." (Id. at 161.) Indeed, Arnold herself testified that she was "outside [her] body with rage" upon reading the article. (Id. at 421.)

The next day-Friday, October 10, 2008-Arnold sent a letter to Interim President Pogue recommending Moore's termination, "effective immediately." (Letter, Pls.' Ex. 34.) Arnold explained that the "University Relations department requires a public relations professional in the position of Executive Director of External Relations" and that Moore did not "have the required skill set or experience in the field." (Id.) Arnold testified that she based her stated conclusions upon Moore's unsatisfactory performance writing the two press releases. (Trial Tr. at 65.) Arnold denies that her decision to terminate Moore had anything to do with his role as advisor to Tempo. (Id.) Arnold also testified that prior to this letter, she had conferred with her immediate superior, Katey Assem, about her need for a public relations professional and the prospect of transferring Moore to a different department. (Id. at 402.) According to Arnold, Assem informed her that Interim President Pogue recommended that the University hire Brian Pitzer, the public relations director at Edinboro University, where Pogue had previously served as a college president. (Id. at 403.)*fn15

Arnold further testified that she decided to recommend Moore's termination after the director of human resources informed her that he "couldn't think of anyplace else to put [Moore]." (Id. at 408.)

In a letter dated October 13, 2008, Pogue notified Moore of his termination, effective immediately. (Letter, Pls.' Ex. 35.) There is no evidence that Pogue took any steps to independently review or investigate Arnold's decision, and the timing suggests he did not: Arnold recommended Moore's termination on Friday and Pogue terminated Moore the following Monday. Pogue's letter explained that Moore was relieved of his duties at the University immediately and, though he would continue to receive his full salary until the expiration of his contract on December 31, 2008, his contract would not be renewed for the following year. (Id.) Pogue sent ...


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