Plaintiff-Appellees, Professor John C. Bonnell and Nancy L. Bonnell [FN 1], ask this Court to grant a rehearing of its opinion and decision to reverse and remand this matter to the district court, issued March 1, 2001; and further suggest that this cause should be reheard en banc, and in support thereof say as follows:
The panel decision in the above case conflicts with decisions of the
United States Supreme Court and decisions of this circuit and consideration
by the full court is therefore necessary to secure and maintain uniformity
of the court’s decisions. See, United States v National Treasury Employees
Union, 513 U.S. 454 (1995); Harris v Forklift Systems, Inc., 510 U.S. 17
(1993); Elrod v Burns, 427 U.S. 347(1976); Cohen v California, 403 U.S.15
(1971); Pickering v Board of Education, 391 U.S. 563 (1968); Harrison v
Metropolitan Government of Nashville and Davidson County, Tennessee, 80
F.3d 1107 (6th Cir. 1996); Dambrot v Central Michigan University, 55 F.3d
1177 (6th Cir. 1995); Newsom v Norris, 888 F. 2d 371 (6th Cir. 1989).
This proceeding involves a matter of exceptional importance. The decision
of the panel was that the classroom speech of a college professor can be
restricted or suppressed, as can his protest of such restriction or suppression,
even when both are conceded protection under the First Amendment, if an
educational institution merely claims the possibility of some future harm.
FACTUAL BACKGROUND
Professor John Bonnell has taught English Composition and Literature
at Macomb Community College (The College) for 33 years. He has continuously
employed the full spectrum of the English language in teaching his courses.
Because of one student’s complaint that Bonnell’s language amounted to
sexual harassment - a claim even the College did not accept - he was suspended
for three days in February, 1999 for use of allegedly vulgar and obscene
language which was employed in teaching his class.
Bonnell has always maintained that his use of language, in course context,
is neither vulgar nor obscene, and is ultimately protected by the free
speech clause of the First Amendment and the principle of academic freedom.
The professor’s language was never directed at a student nor was it ever
inflicted upon a class to create a hostile learning environment. No finding
in the court below disputes these conclusions.
In response to the College’s investigation into Bonnell’s classroom
speech, Bonnell published the student’s complaint, significantly redacting
any information which would identify her, along with the satirical essay
“Yes, Virginia, There is a Sanity Clause,” (sometimes referred to as The
Apology) which lampooned the College for language censorship.
Professor Bonnell filed a suit in the Federal District Court for the
Eastern District of Michigan against certain College administrators. Subsequently
the College suspended Bonnell for four months without pay for insubordination
and for alleged retaliation and breach of confidentiality pursuant to a
claim of sexual harassment. No finding of sexual harassment has ever been
made against Bonnell. In fact Defendant MacQueen, the College vice president,
admitted under oath that this was not a sexual harassment case. [FN 2]
Plaintiff sought injunctive relief in the district court. Hearings were
held; testimony taken; and arguments were heard in July-August, 1999. On
August 27, 1999, the Honorable Paul D. Borman issued a 45-page opinion,
granting injunctive relief and reinstating Plaintiff as an instructor,
pending trial on the merits. Defendants appealed that decision and a panel
of this Court reversed and remanded to the district court.
The panel held that Plaintiff’s protests of his discipline for his
classroom language were protected by the First Amendment as speech on matters
of public concern - academic freedom and the First Amendment, itself. However,
the panel then held that it must weigh the free speech right against the
College’s concerns of retaliation, confidentiality, hostile environment
and federal funding. The panel found that the latter (and unsubstantiated)
concerns trump the First Amendment rights of a college professor. Plaintiff
asks this Court to reconsider that decision.
ARGUMENT
The panel decision in this cause correctly and repeatedly found that
Plaintiff’s speech was on a matter of public concern, i.e., academic freedom
and the First Amendment.[FN 3] However, in the course of coming to that
ultimately correct conclusion, the panel made several, significant errors
in fact and law. The importance of those errors is that the panel then
left Plaintiff with a watered-down evaluation of the strength of his position
when it came time to balance his First Amendment rights against the Defendants’
claims of potential and unsubstantiated harm to the College. See Pickering
v Board of Education, 391 U.S. 563 (1968). Therefore, the panel was falsely
persuaded to conclude that Plaintiff’s position, defending academic freedom,
was so weak that the Defendants’ pure speculation of harm to the College
actually trumped the First Amendment itself.
A. ERRORS OF FACT AND LAW
1. The panel incorrectly concluded that Plaintiff did not have the right
to continued employment at the college.[FN 4] However, the Slip Opinion,
itself, and the record in this case demonstrate that Plaintiff is, in effect,
tenured. The panel agreed that Bonnell “is employed pursuant to a Collective
Bargaining Agreement (“CBA”). Slip Opinion at p 3. That CBA provides that
“on successfully completing his probationary contracts, the new employee
shall be given a permanent contract.” (J.A. p 57). Further, “after having
completed the probationary period, the teacher shall be granted a permanent
contract which shall remain in force…and such teachers shall not be dismissed
except as hereinafter provided.” (J.A. p 58).[FN 5] The importance of this
mistake is highlighted in mistake 2, below.
2. The panel incorrectly concluded that Plaintiff has not suffered
irreparable injury. Whereas this conclusion is first based on the incorrect
assumption that Plaintiff is not tenured, see above, it is exacerbated
by the faulty conclusion of law that a denial of First Amendment rights
will not constitute irreparable injury. This conclusion flies in the face
of the Supreme Court’s directive in Elrod v Burns, 427 U.S. 347, 373 (1976)
that “[t]he loss of First Amendment freedom, even for minimal periods of
time, unquestionably constitutes irreparable injury.” Quoted in Newsom
v Norris, 888 F. 2d 371, 378 (6th Cir. 1989). Plaintiff, as a “tenured”
professor suffered the loss of First Amendment freedom, and hence, was
irreparably harmed.
3. The panel incorrectly concluded that Plaintiff’s classroom speech
was not germane to course content. The panel wrote that “Plaintiff’s distribution
of the Apology along with the student’s sexual harassment complaint to
his students, fellow faculty members, and the media, as well as his use
of classroom language considered to be obscene and not germane to course
content, are the acts of expression for which he was disciplined and thus
are at issue here.”[FN 6] Slip Opinion p 19-20. (Emphasis added.)
The fallacy of the panel’s conclusion is that no determination was
ever made, either by the defendant administrators or the district court,
that Plaintiff’s speech was not germane to his class instruction as an
English teacher. Only three proofs appear in the record below regarding
the question of whether the language was germane. Attached to Plaintiff’s
original federal complaint was an affidavit, signed by Professor Bonnell,
which set out in detail how every word or phrase complained of, either
by Defendants or the student in question, was directly related to his English
course. (J.A. p 187-190). Second, the written complaint by the student,
herself, pointedly states that “[t]hese [obscene] comments stemmed from
English stories that we were reading in class….” (J.A. p 230). Furthermore,
the uncontradicted testimony of Plaintiff was that he never directed any
of the language which the student complained of to any particular student.
(J.A. p 698).
The panel merely assumed, without a scintilla of proof, that Plaintiff
was speaking gratuitously in using the language for which defendants disciplined
him. This is important for two reasons: First, it forms an important part
of the panel’s decision.[FN 7] Second, as noted in argument 4, below, this
false finding of fact led the panel to consider certain cases as precedent
when, in fact, they are inapposite.
Plaintiff’s classroom language was related directly to course content
and was, therefore, fully constitutionally protected.[FN 8]
4. The panel incorrectly applied the
cases of Dambrot v Central Michigan University, 55 F. 3d 1177 (6th Cir.
1995) and Martin v Parrish, 805 F. 2d 583 (5th Cir. 1986) to the facts
in this case.
Dambrot, supra, did not concern a teacher using classroom colloquy
to illustrate an educational point. Dambrot specifically is limited to
a non-teacher, gratuitously using offensive language which was in no manner
related to an academic endeavor.
Dambrot’s use of the N-word is even further away from the marketplace
of ideas and the concept of academic freedom because his position a coach
is somewhat different from that of the average classroom teacher. Unlike
the classroom teacher whose primary role is to guide students through the
discussion and debate of various viewpoints in a particular discipline,
Dambrot’s role as coach is to train his student’ athletes how to win on
the court. The plays and strategies are seldom up for debate.
Dambrot, supra at 1190.
To cite Dambrot (Slip Opinion p 35-36), is to fail to appreciate that Plaintiff herein is neither a coach nor is he to be found trying to aggrandize himself by motivating students in some locker room. Plaintiff’s frequent teaching of literature as a performance art entertains and edifies as it informs, and his enhancement of cultural expressiveness demonstrably advances knowledge as it transforms taste. Unlike coach Dambrot, Plaintiff has never even been accused of making derogatory comments about persons of certain racial, ethnic or gender groups nor is his language ever related to anything but English literature or language. The mere citation to Dambrot, supra, suggests the factual misconception referred to in argument 3, above.
Martin, supra, also is misplaced authority herein. In Martin a professor
used profanity in front of his students, but that professor had “not argued
that his profanity was for any purpose other that cussing out his students
as an expression of frustration with their progress - to ‘motivate’ them…”
Id. At 585. There is no parallel between intellectual discussion both on
“vulgar” language and its use on the one hand, and using foul language
to upbraid students, on the other hand. Plaintiff, again, never hurled
words at his students; he talked about words with them, or used them emotively
while rendering literary character and conflict.
The panel, seemingly relying on Martin, supra, states in its opinion
that college students constitute, in effect a “captive audience” which
“paid to be taught and not vilified in indecent terms.” Slip Opinion at
p 35. Putting aside the fact that no serious claim can be made that Plaintiff
ever vilified any student, the captive audience scenario just doesn’t fit
here. In 33 years of teaching, Plaintiff must have educated approximately
10,000 students. One, call it two, have complained about his language,
equaling roughly 0.02%. Rather than constituting a disgusted majority,
the complaint of the student(s) here seems more appropriately referred
to as a “heckler’s veto.” Berger v Battaglia, 779 F. 2d 992, 1001 (4th
Cir. 1985).
5. The panel incorrectly ruled that the motivation of Plaintiff in publishing the student’s complaint and the “Yes, Virginia” satirical piece were not established in the record.
The district court found - by virtue of its own devices and not based
upon Plaintiff’s testimony - that Plaintiff’s motivation, or the context
in which he circulated the Apology, was to discuss the bounds of the First
Amendment….Second, we do not believe that the record supports a finding
that Plaintiff’s motivation in circulating the Apology was necessarily
only one of public interest.
Slip Opinion, p 30.
However, the following testimony in the district court was clear and
also unrebutted:
Q: What was your purpose in disseminating the redacted form of the
Derowin [student] complaint to your students?
A: [By Plaintiff] Once again, to generate discussion.
****
The Witness: Generate discussion about academic freedom, the nature
of such a complaint, and find out if other persons in the class felt similarly
exposed, and talk about it, and we did.
(Testimony of Plaintiff, August 3, 1999, p 32, J.A. p 683).
Similarly:
Q: What was the purpose of distributing the document [Yes, Virginia]?
****
A: [By Plaintiff] It was meant to stimulate discussion been [sic] [among?]
the faculty as to the issue at hand - what I perceived to be a threat to
academic freedom.
(Testimony of Plaintiff, August 3, 1999, p 49, J.A. p 700).
There is simply no evidence in the record that personal animus motivated
Plaintiff and the uncontradicted record supports the conclusions of the
district judge.
The finding of the district judge, after listening to the testimony,
was that Plaintiff had strong motives, grounded in the First Amendment,
for publishing the redacted student complaint and his essay. The panel
disagreed, setting up, at the very least, two permissible views of the
evidence. “Where there are two permissible views of the evidence, the fact
finder’s choice between them cannot be clearly erroneous.” Anderson v City
of Bessemer City, North Carolina, 470 U.S. 564, 574 (1984). Cited as controlling
in Harrison v Metropolitan Government of Nashville and Davidson County,
Tennessee, 80 F. 3d 1107, 1112 (6th Cir. 1996).
B. THE BALANCING TEST
As argued above, the panel in this case, through a series of interpretative
mistakes regarding the record below and the applicable law, diluted the
strong legal position which Plaintiff possessed, given the presumptive
right to free speech. See, Cohen v California, 403 U.S. 15, 24 (1971).
That problem was heightened when the panel accorded to Defendants significant
interests, which either do not exist or, at best, are purely speculative.
The panel very correctly determined that the balancing test of Pickering
v Board of Education, 391 U.S. 563 (1968) must be employed. However, the
panel misstated the standard which is to be used in balancing. The panel
placed the burden on Plaintiff rather that on Defendants to justify their
discipline. “If Plaintiff’s interests in the prohibited speech outweigh
the College’s interests, then Plaintiff’s First Amendment rights have been
violated.” Slip Opinion p 16-17. The Supreme Court, however, in applying
Pickering, supra, has made it clear that if “the speech does involve a
matter of public concern, the government bears the burden of justifying
an adverse employment action.” United States v National Treasury Employees
Union, 513 U.S. 454, 466 (1995), citing Rankin v McPherson, 483 U.S. 378,
388 (1987).
The panel set out what it perceived the College’s interests to be:
“prohibiting retaliation against students who file sexual harassment complaints,
maintaining the confidentiality of its students, maintaining a disruption-free
environment, and maintaining its federal funding.” Slip Opinion p 19. These
interests were simply not violated or particularly affected by Plaintiff’s
assertion of free speech and academic freedom.
First, there was not retaliation against the student. She was not confronted
or threatened. She was not in the classroom when her compliant was shown
to other students.[FN 9] Plaintiff never talked to her and did not detract
from her grade.[FN 10] These factors are unrebutted.
Second, there was no breach of confidentiality because all identifying
markers were redacted from the complaint and her name is never mentioned
in the essay. The only party who ever exposed the student’s name was the
College.
Third, mere words, alone will not create a hostile work or learning
environment. See Harris v Forklift Systems, Inc., 510 U.S. 17, 23 (1993),
wherein Justice O’Connor compares a “mere offensive utterance” to “physically
threatening or humiliating” statements. See also, Gerber v Lago Vista Independent
School District, 524 U.S. 274 (1998); Oncale v Sundowner Offshore Services,
Inc., 523 U.S. 75 (1997). The only “disruption” which occurred at the College
was the walk-out of Plaintiff’s students in protest of his unfair discipline.
Fourth, Defendants, who for in excess of three years have been deploring Plaintiff’s germane classroom language, have not been able to point to one instance of a Title IX or F.E.R.P.A. problem associated with Professor Bonnell.
The “interests” of the College are either non-existent or purely speculative.
These pseudo interests cannot possibly sustain the burden of overcoming
a college professor’s right to speak out on a matter of public concern
- academic freedom and the First Amendment.
CONCLUSION
The United States Supreme Court and this Court have long honored and
treasured the First Amendment rights of educators and public employees
vis-à-vis their administrators or employers. See, e.g. Sweezy v
New Hampshire, 354 U.S. 234 (1957); Keyshian v Board of Regents, 385 U.S.
589 (1967); Tinker v DesMoines Independent Community School District, 393
U.S. 503 (1969); Stanchura v Truzkowski, 763 F. 2d 211 (6th Cir. 1985);
Newsom v Norris, 888 F.2d 371 (6th Cir. 1989). This Court has been especially
vigilant in condemning speech codes on college campuses. Dambrot, supra.
However, the decision in the instant case, if allowed to stand, will create
a chilling precedent in this Circuit.
The law will now be that a tenured college professor, exercising a
firmly grounded right to speak out on a matter of obvious public concern,
may be disciplined by a public educational institution, which institution
is not harmed by his speech. This Court should now reconsider this important
decision.
RELIEF REQUESTED
For all of the reasons set forth in this petition, Plaintiff asks this Court, pursuant to F.R.A.P. 40, to grant a rehearing in this cause regarding its decision and order of March 1, 2001; Plaintiff also suggests that the rehearing be en banc.
Respectfully submitted,
JAMES C. HOWARTH (P15179)
JUAN A. MATEO (P33156)
2000 Penobscot Building
Detroit, MI 48226
(313) 962-3500
Dated: March 14, 2001
FOOTNOTES:
1. Hereinafter, references are to Professor Bonnell, only. Nancy Bonnell's claim is derivative.
2. Testimony of William MacQueen, July 30, 1999, p 78-79, J[oint] A[ppendix] p 510-511.
3. "A review of the Apology also indicates that Plaintiff was speaking as a concerned citizen about the importance of the right to free speech under the First Amendment, and the need to protect that right in society." Slip Opinion at 28. "Stated more broadly, there is a public interest concern involved in the issue of the extent of a professor's independence and unfettered freedom to speak in an academic setting." Slip Opinion at p 29. "[E]ven assuming that Plaintiff was motivated by personal animus in circulating the Apology, the fact remains that in doing so, he addressed a matter occurring at the college that was of public concern." Slip Opinion at p 30-31. "Moreover, in the case at hand, the Apology went one step further and addressed issues of public concern such as the sanctity of the First Amendment." Slip Opinion at p 32.
4. "[T]he [district] court finds, without any legal support, that because Plaintiff has been under a contract for thirty-two years, he has the right to continued employment …. Because Plaintiff is not tenured … the injury is purely economic in nature…." Slip Opinion at p 45-46.
5. Plaintiff, in fact, testified before Judge Borman that his position as a professor under a continuing contract is factually undistinguishable from being tenured. (J.A. p 664-665). That testimony was uncontroverted.
6. The panel attached a footnote indicating that even though the district court did not consider the actual language used by Plaintiff, nonetheless the panel would consider it. (Slip Opinion at p 20).
7. "In other words, it was not the content of Plaintiff's speech itself which led to the disciplinary action; rather it was the context and form in which Plaintiff used the speech--i.e. in the course of his teaching where the language was not germane to the course content--that the College found to be in violation of its sexual harassment policy." (Emphasis added). "[H]e [plaintiff] does not have a constitutional right to use [obscenity] in a classroom setting where they are not germane to the subject matter…." (Slip Opinion p 36-37). "We find Plaintiff's classroom profanity that was not germane to the subject matter to be unprotected speech …" (Slip Opinion p 37). (Emphasis added).
8. The district court, itself, concluded that Plaintiff's speech was germane to his English course. "In the instant case, Plaintiff contends that he, as an English teacher, is a person most likely to speak out and have an informed and definite opinion with regard to germane speech in the classroom, and that accordingly it is essential that he be able to speak out on an issue without a retaliatory dismissal. The Court agrees." (Opinion p 29; J.A. p 140). It should also be noted that the record below contains ample authority for the proposition that under the CBA, the teacher, and not the administration, determines what materials or language are germane to course and context. (J.A. 715).
9. Testimony of John Bonnell, August 3, 1999, p 84, J.A. p 735.
10. Testimony of John Bonnell, August 3, 1999, p 36, J.A. p 687.
It will be referenced here, in passing, that the panel notes in its opinion that after Plaintiff was reinstated as a teacher, by injunction, a second student complained about his offensive language, specifically denigrating women and the Jewish faith. Slip Opinion, p 13. It is truly unfortunate that this complaint even finds its way into the record. There has never been a hearing to determine the truth or accuracy of the complaint. Plaintiff categorically denies its truth and has never made any such utterances in 33 years of teaching. The single fact that most belies the second complaint is the fact that at the exact time that Plaintiff allegedly made these horrific statements, 50 students in Plaintiff's classes signed affidavits stating unequivocally that there was no disruption in the English Department as a result of Plaintiff's return to class. (J.A. pp 443-493). See second complaint (J.A. 493-494).