IN THE
                UNITED STATES COURT OF APPEALS
                          FOR THE SIXTH CIRCUIT

                    PROFESSOR JOHN C. BONNELL,
                        AND NANCY L. BONNELL,
                              Plaintiffs-Appellees
                                               V.
           ALBERT LORENZO, WILLLAM MACQUEEN,
                             AND GUS J. DEMAS,
                              Defendants-Appellants
                                                          AND
                                MARK COUSENS,
                                       Defendant

         On Appeal from the United States District Court
                   for the Eastern District of Michigan
                                Southern Division

                 APPELLANTS'RESPONSE TO
           PLAINTIFF'S PETITION FOR REHEARING

Hunter L. Wendt (P 22186)
Thomas P. Brady (P 31552)
Timothy S. Ferrand (P39583)
Jeffrey A. Steele (P51497)
Co-Counsel for Appellants
1330 Buhl Building
Detroit,,Michigan 48226
(313) 965-3700
 
 

I. INTRODUCTION

     This Court neither erred nor contravened controlling precedent in holding that each of the four factors necessary for obtaining injunctive relief favored reversing the District Court's Order enjoining Macomb Community College's (the "College") decision to discipline its employee, Plaintiff John Bonnell.  [FN 1]  See 6 Cir. R. 35©.
 
     Applying well-established precedent to the facts, this Court correctly held that the College had compelling interests in preventing, inter alia, Plaintiff's insubordinate release of a confidential student record; violation of the College's sexual harassment policy; and distribution of a demeaning, retaliatory apologia that ridicules a civil rights complainant and attempts to justify his failure to explain his classroom conduct when questioned in 1998. [FN 2]  This Court correctly held that these interests outweigh Plaintiff's interest in conducting himself as he did.
 
     Instead of identifying an error or an incongruity with controlling precedent, see 6 Cir. R. 35©, Plaintiff's Petition simply regurgitates arguments this Court has rejected; misrepresents the record; mischaracterizes this Court's reasoning; makes a series of baseless and irrelevant critiques regarding the manner in which this Court reached a conclusion that favors Plaintiff; and argues without foundation that public employers cannot discipline their employees in an effort to proactively prevent reasonably perceived harms.

     In addition, Plaintiff does not even argue that this Court erred in concluding the third and fourth factors needed for injunctive relief favored the College and supported reversal.  Accordingly, even if some of Plaintiff's critiques have merit, which none of them do, Plaintiff has not established a basis for rehearing.

                                                      ARGUMENT
A. Irreparable Harm

     Plaintiff's claim that his Court misanalyzed the irreparable harm issue is specious.  Plaintiff falsely claims that this Court erred in not declaring him a "tenured" professor. [FN 4]  Plaintiff's "tenure" allegation is both false and irrelevant.  This Court attached no consequence to the issue whether Plaintiff was tenured. [FN 5]
     Plaintiff then mischaracterizes this Court's holding.  This Court did not hold, as Plaintiff claims, that "a denial of First Amendment rights will not constitute irreparable injury."  (Petition, p. 6).  This Court simply noted that the District Court erred "because it considered the second preliminary injunction factor--whether plaintiffs would suffer irreparable injury without the injunction--first, claiming this issue was dispositive."  (Slip Op, at 16).  This Court then held, quite correctly, that "we do not believe that Plaintiff has shown a substantial likelihood of succeeding on the merits of his First Amendment claim, and where the injury is purely economic in nature, a preliminary injunction is not necessary in any event."  (Slip op, at 46).

B. LIKELIHOOD OF SUCCESS ON THE MERITS
1. Speech on a Matter of Public Concern

     The factual critiques on pages 7 through 12 of Plaintiff's Petition are irrelevant.  Each conclusion Plaintiff disputes was articulated in the portion of the Opinion holding that Plaintiff spoke on a matter of public concern.  Since this Court resolved that issue in Plaintiff's favor, Plaintiff's criticisms cannot compel a different result.

     Regardless, Plaintiff's factual critiques are utterly baseless.  Plaintiff first claims that this Court erred because it "concluded that Plaintiff's classroom speech was not germane to course content."  (Petition, at 7).  A careful review of this Court's Opinion reveals that this Court simply held, correctly and in a manner that is consistent with the overwhelming state of the law, that the College did not violate Plaintiff's constitutional rights by issuing a sexual harassment policy precluding use of non-germane profanity in class. [FN 6]  (Slip Op, at 36-37).  This Court ostensibly recognized that the issue whether Plaintiff violated this policy is reserved for the mandatory/grievance arbitration process outlined in the CBA.

     Plaintiff next claims that this Court misapplied Dambrot v. Central Mich. Univ., 55 F.3d 1177 (6th Cir, 1995), and Martin v. Parrish, 805 F 2d 583 (5th Cir. 1986).  Plaintiff's argument is based on his unsupported claim that the plaintiffs in those cases had a different reason than Plaintiff for using vulgarity.  Plaintiff fails to mention, however, that this Court recognized these potential points of distinction in its Opinion.  (Slip Op, at 36-37, 39-43).  The supposed distinctions are also irrelevant.  Each case stands for the pertinent proposition that an academic institution may constitutionally prevent professors from using non-germane vulgarity to a captive group of students.  Cf., Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991); Clark v. Holmes, 474 F. 2d 928, 931 (7th Cir. 1972), cert. Denied, 411 U.S. 972 (1973).

     Plaintiff next claims that this Court "incorrectly ruled" that, when drafting An Apology, Plaintiff was motivated out of "personal animus" instead of a desire to discuss the First Amendment.  (Petition, at 11).  Actually, this Court did neither.  This Court simply noted that the District Court erred in premising its legal ruling on a relevant but not dispositive point regarding which it excluded evidence. [FN 7]  (Slip Op, at 45-46).  Then, instead of relying on objectionable, incomplete testimony, this Court followed the law and used the content, form and context of the document to determine whether it pertained to a matter of public concern.  (Slip Op, at 20-37).  It was this textual review, not some conclusion about what Plaintiff was thinking when he drafted the document, that inspired this Court's conclusion that the document presented a "mixed-speech" case involving non-protected private interests and protected issues of public concern.  (Slip Op, at 37).

2. The Balancing Test

a. The Reasonable Belief Standard

     With no pertinent authority to support his position,[FN 8] Plaintiff claims that public employers cannot proactively prevent the harms they believe an employee's conduct may cause.  Plaintiff claims that public employers must sit back and allow inappropriate conduct to continue until those reasonably feared harms actually materialize.  This is not the law. [FN 9]

     The Pickering balancing test does not depend on whether the prospective harms which inspired the employer's disciplinary decision actually came to pass.  Courts must instead defer to the harms the public employer reasonably believed the speech might create when performing the Pickering balancing test.  Waters v. Churchill, 511 U.S. 661, 673 (1994) ("we have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large"). [FN 10]  It is the harms the public employer reasonably believed may come from its employee's conduct at the time it imposed discipline, not the damages that actually ensue, that this Court must balance against Plaintiff's alleged interests.  Jeffries v. Harleston, 52 F. 3d 9, 10 (2nd Cir.), cert. Denied 116 S Ct 173 (1995).

b. The College's Interests

i. Preventing Retaliation.

     Plaintiff continues to claim that he did not retaliate against the student complainant because he did not lower her grade. [FN 11]  However, Plaintiff does not and cannot defray the axiomatic principle that retaliation can occur "[r]egardless of the degree or quality of harm to the particular complainant…."  EEOC Guidelines on Investigating, Analyzing Retaliation Claims.  Indeed, the basic policy behind anti-retaliation law is to prevent the chilling effect that occurs when retaliators' actions toward past complainants make prospective complainants more hesitant to assert their civil rights.  See Appellants' Brief, at 42-43.

     Plaintiff responded to the student's civil rights complaint by distributing it to numerous students, publicly posting it, circulating it to the entire faculty and sending it to various mass media.  He also drafted and distributed a caustic apologia that chastised and demeaned the student complainant.  The College reasonably believed that these actions were retaliatory and likely to chill other students from exercising their right to complain about perceived civil rights violations.  See Rubin v. Ikenberry, 933 F. Supp. 1425 (C.D. Ill. 1996) (upholding discipline where a professor retaliated against two students who had complained that they were sexually harassed by the professor's discussion of their sexual harassment complaints in class).

                                   Ii   Honoring Federal Privacy Law

     Plaintiff reasserts that he did not violate the Family Educational Records Privacy Act ("FERPA"), 20 U.S.C. & 1332g. because he redacted the student complainant's name before publicly distributing her complaint.  However, FERPA and the regulations thereunder prevent more than just the release of personally identifiable information. [FN 12]  They prevent release of the records themselves. [FN 13]

     The College had a reasonable belief that Plaintiff violated the Act by distributing the student's sexual harassment complaint.  The College did not have to let this conduct go undisciplined (thereby potentially violating the act by permitting a "practice of permitting the release of educational records") until the federal government pulled its funding.

     Even if FERPA did not exist, the College would still have a sound basis for disciplining Plaintiff.  Plaintiff's unauthorized distribution violated the confidentiality provisions in the CBA and the College's harassment policy.  Plaintiff has not attempted to square his insubordinate distribution with these policies.

c. The College's Interests Outweigh Plaintiff's Interests

     Because the College had good and reasonable cause to support its conclusions that Plaintiff's conduct could and, in most cases, did cause these and other cited harms, conclusions to which the District Court was obliged to defer, see Appellants' Brief, at 41-42, Plaintiff's interest in speaking as he did does not outweigh the College's interests in disciplining Plaintiff. [FN 14]  Accordingly, based on its correct application of the law, this Court correctly held that Plaintiff cannot survive the Pickering balancing test. [FN 15]  (Slip op, at 37-44).

  C.    Remaining Injunctive Relief Factors

     This Court held that the final two factors necessary for obtaining injunctive relief--harm to individuals and to the general public--favored reversal.  (Slip Op, at 46-47).  Plaintiff does not claim that this Court erred in doing so.  Accordingly, even if all Plaintiff's arguments had merit, which none of them do, Plaintiff has still failed to establish that this Court erred in dissolving the Order granting injunctive relief.

C. Plaintiff Has No Constitutional "Academic Freedom"

     As outlined in greater detail in Defendants' response to Plaintiff's first motion for preliminary injunctive relief, (JA 397-418), and on pages 13 through 14 of Defendants' Reply Brief, Plaintiff has no individual right to "academic freedom."  In Urofsky v. Gilmore, 216 F.3d 401 (4th Cir., 2000) (en banc), cert. Denied 148 L. Ed. 2d 662 (2001), an en banc panel of the Fourth Circuit exhaustively reviewed the law of "academic freedom," including the cases Plaintiff cites on page 15 of his Petition, and unequivocally rejected the argument that university professors have a special constitutional right to "academic freedom."  The court stated that, "[o]ur review of the law, however, leads us to conclude that to the extent the Constitution recognizes any right of 'academic freedom' above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors. . . ." Id., 410.  The court added:

          Taking all of the cases together, the best that can be said for [the
          professors'] claim that the Constitution protects the academic
          freedom of an individual professor is that teachers were the first
          public employees to be afforded the now-universal protection
          against dismissal for the exercise of First Amendment rights.  Nothing
          in Supreme Court jurisprudence suggests that the "right" claimed by
          [the professors] extends any further.  Rather, since declaring that
          public employees, including teachers, do not forfeit First Amendment
          rights upon accepting public employment, the Court has focussed its
          discussions of academic freedom solely on issues of institutional
          autonomy.  [Id., 415.]

     Defendants submit that the Supreme Court, for good reason, has chosen not to parse out special rights to special groups.  The Court has chosen instead to apply the First Amendment uniformly by applying the Pickering balancing test to determine whether public employees, including teachers, were wrongfully disciplined for exercising their First Amendment rights.

     Because this Court properly and correctly determined that the College's interest in disciplining Plaintiff outweighed Plaintiff's interest in speaking as he did, this Court should decline Plaintiff's request for rehearing or rehearing en banc.
 

                                                                     Respectfully submitted,

                                                                      ______________________________
                                                                      Hunter L. Wendt (P22186)
                                                                      Thomas P. Brady (P31552)
                                                                      Timothy S. Ferrand (P39583)
                                                                      Jeffrey A. Steele (P51497)
                                                                      Attorneys for Defendants
 

ENDNOTES:

1.    For ease of reference, Appellants will refer to John Bonnell as Plaintiff, in the singular.
2.    It is undisputed that, despite the fact that he had two separate chances in December 1998, Plaintiff failed to explain all his use of certain language in class before the College suspended him for three days for violating its policy prohibiting use of non-germane vulgarities in class.  Plaintiff's Apology concedes this point and attempts to offer an excuse for this failure.  (JA 232-234).  The affidavit Plaintiff mentions in his Petition offers a post hoc explanation for his use of vulgar language in class.  This lacks consequence because, as the Supreme Court held in Waters v. Churchill, 511 U.S. 661,673 (1994), a public employer's decision is judged on the basis of the facts it knew at the time it made its decision.
3.    The facts are detailed in Defendants' Brief and this Court's Opinion, which are incorporated herein.
4.    Although the issue is not relevant because a public employer can constitutionally discipline a tenured employee, Plaintiff misrepresents the truth and the law in claiming that he was a "tenured" professor.  In Shaw v. Macomb Community College, 389 Mich. 69, 80-81 (1973), the Michigan Supreme Court made it clear that the Michigan Teacher Tenure Act does not apply to teachers at MCC, stating that, "[t]he entire legislative and administrative history of the teachers' tenure act and the statutes authorizing community colleges persuades us that community colleges are not included within the purview of that legislation."  The controlling collective bargaining agreement does not contain a word about tenure.  Plaintiff is employed pursuant to annual contracts and is subject to suspension, reprimand or discharge provided he is given written notice of the charges and a chance to be heard.  (JA 46-100).  The CBA requires that all attempts to grieve the basis for or severity of discipline must be resolved through the contractual grievance/arbitration process.  (A 46-100).
5.    This Court merely pointed out that the District Court made an unsupported ruling that Plaintiff had a right to continued employment.  (Slip Op, at 45).
6.    Instead of stating that Plaintiff's language was not germane, this Court was careful to note that this was simply Defendants' allegation.  Every time this Court mentioned the issue, it qualified its holding with phrases such as "what the College terms profanity not 'germane to course content" or what the College "considered to be obscene and not germane to course content…."  (Slip Op, at 20).
7.    As reflected by the record, some of which is quoted in this Court's Opinion, the District Court sustained Defendants' objections to Plaintiff's attempt to explain why he wrote the document.  (JA 699, Slip Op, at 26, N.9).
8.    Plaintiff's citation to United States v. National Treasury Employees' Union, 513 U.S. 454 (1995), is misplaced.  National Treasury was not a simple case where a public employer disciplined an employee's conduct or speech.  National Treasury dealt with a broad Congressional statute [that] prohibited all public employers from a broad range of speech.  Due to the breadth of the statute involved in that case, the Court distinguished that case from the ordinary public employee speech situation and imposed a standard that is more exacting than the Pickering standard applicable here.  Id. At 466-477.
9.    Such a method would handcuff public employers and prevent them from proactively preventing their employees from, inter alia, illegally harassing, retaliating against or violating the privacy rights of others.  It would make it impossible for employers to avoid liability and would contravene the law requiring employers to immediately investigate claimed harassment, stop it immediately and implement and enforce complaint procedures that forbid retaliation.
10.    See, also, Connick v. Myers, 461 U.S. 138, 151 (1983), quoting Arnett v. Kennedy, 416 U.S. 134, 168; 94 S.Ct 1633; 27 L.Ed.2d 14 (1974) (Powell, J., concurring) ("'the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.  This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch'") (emphasis added).
11.    Plaintiff's claim is misleading.  It ignores Plaintiff's admission that the student, who never withdrew from class, did not attend class after Plaintiff distributed her complaint.  (JA at 83).  Plaintiff also admitted that his grading policy gives points for attendance and participation, so the student's grade would have improved if she kept coming to class. (JA at 86-87).  Thus, it is clearly reasonable to believe that Plaintiff's retaliatory decision to distribute the complaint in class embarrassed the student, made her afraid to attend class and, thus, impaired her grade.
12.    Plaintiff makes much of the fact that he redacted the student's name from the complaint before he released and rebuked it.  Redacting the name does not dilute the retaliatory message Plaintiff conveyed, which is the real problem.  Also, as Judge Nelson recognized at oral argument, Plaintiff did not redact components of the complaint that could help one identify the student complainant.
13.    The statute provides that "No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information …)."  20 U.S.C. & 1332 (emphasis added).
14.    Plaintiff admitted that he could have discussed the First Amendment and academic freedom issue without distributing and responding to the confidential student complaint.  (APX 722).  Plaintiff would have incurred no discipline had he chosen such a means.
15.    Plaintiff's claim that sexual harassment cannot be proved unless the conduct is directed at an individual is incorrect.  Beginning with Robinson v. Jacksonville Shipyards, Inc., 790 F. Supp. 1486 (M. D. Fla. 1991), there is an entire body of case law holding that a hostile environment claims may be premised on non-targeted speech that tends to offend one sex or race more than another.  See, also, Jackson v. Quanex, 191 F. 3d 647 (6th Cir., 1999).