Brown v. Armenti , 247 F.3d 69 ( 2001 )

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
4-17-2001
Brown v. Armenti
Precedential or Non-Precedential:
Docket 00-1587
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Filed April 17, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1587
ROBERT A. BROWN
v.
ANGELO ARMENTI, JR.; CALIFORNIA UNIVERSITY OF
PENNSYLVANIA; BARBARA A. ARMENTI; CUR TIS C.
SMITH; DELORES L. ROZZI; HAYWOOD L. PERR Y;
BONITA A. KLINE; BETH BAXTER; JAMES H.
MCCORMICK; CBS CORP KDKA-TV; WESTINGHOUSE
BROADCASTING COMPANY KDKA-TV; WESTINGHOUSE
CBS HOLDING COMPANY, INC. KDKA-TV; CBS
BROADCASTING INC., aka KDKA-TV; PAUL MAR TINO;
CHARLES D. FOUST; GERALD F. KELLEY; KAREN D.
LUM; LINDA J. MCCLELLAN; DEAN WEBER; CARLEEN C.
ZONI; JUDY ANSILL; WILLIAM F. BARRY; FRANK
DELUCA; CARMINE DURZO; ANNETTE GANASSI; PAUL
LEMMON; EDWARD M. PAULSO; STEVEN STOUT; JOHN
K. THORNBURGH; AARON WALTON; ROBER T WETZEL;
FOUNDATION FOR CALIFORNIA UNIVERSITY
OF PENNSYLVANIA
Angelo Armenti, Jr.,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 98-cv-01332)
District Judge: Honorable Donetta W. Ambr ose
Argued
March 12, 2001
Before: MANSMANN, BARRY and COWEN, Circuit Judges.
(Filed: April 17, 2001)
John M. Golden, Esquire (Argued)
First & Market Building
100 First Avenue, Suite 825
Pittsburgh, PA 15222
Counsel for Appellee
D. Michael Fisher
Attorney General
John G. Knorr, III, (Argued)
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of Attorney General of
Pennsylvania
Department of Justice
Strawberry Square
15th Floor
Harrisburg, PA 17120
Counsel for Appellant
OPINION OF THE COURT
MANSMANN, Circuit Judge.
In this interlocutory appeal, the defendant appeals the
District Court's denial of a motion for summary judgment
in a section 1983 action where the defendant asserted the
defense of qualified immunity. What is unusual her e is the
setting -- a public university. In an amended complaint, a
tenured professor alleged that he was suspended from
teaching a class after he refused the university president's
instruction to change a student's grade and that he was
discharged after submitting a written criticism of the
president to be presented to the university board of
trustees. According to the complaint, these wer e acts of
retaliation which violated the professor's rights to academic
freedom and free speech protected by the First Amendment.
We conclude that the amended complaint did not allege
deprivations of constitutional rights and that summary
judgment should have been granted. We ther efore will
2
reverse the portion of the District Court's judgment that
dealt with these issues and remand for the District Court to
enter summary judgment for the defendant university
president.
When an appellate court reviews the denial of a
defendant's claim to qualified immunity, "the appealable
issue is a purely legal one: whether the facts alleged . . .
support a claim of violation of clearly established law."
Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985).1 Resolving
the legal issues, however, requir es "consideration of the
factual allegations that make up the plaintif f 's claim for
relief." Id at 528. For this r eason, we present the facts as
they have been alleged by the plaintiff and do not concern
ourselves with weighing the correctness of the plaintiff 's
version. Id. Our review is plenary. Abbott v. Latshaw, 164
F.3d 141, 145 (3d Cir. 1998).
I.
For twenty-eight years, plaintiff Robert Br own was
employed as a professor at California University of
Pennsylvania; he has been tenured since 1972. At the
conclusion of the spring 1994 semester, the plaintiff
assigned an "F," or "failing," grade to one of his students in
_________________________________________________________________
1. Although 28 U.S.C. S 1291 confers jurisdiction upon the courts of
appeals to hear appeals from final decisions of district courts, the
collateral order doctrine creates an exception to the general rule. In re
Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000); Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985).
The parties briefed the issue of the defendant's qualified immunity, but
the District Court did not explicitly address the question. When it
concluded that summary judgment was not appr opriate, however, the
Court implicitly ruled on the matter. Even though a district court does
not explicitly address the immunity claims, we nonetheless have
jurisdiction to review the implied denial of those claims. In re
Montgomery County, 215 F.3d at 373. "[A] district court's denial of a
claim of qualified immunity, to the extent that it turns on an issue of
law, is an appealable `final decision' within the meaning of 28 U.S.C.
S 1291 notwithstanding the absence of a final judgment." Behrens v.
Pelletier, 516 U.S. 299, 306 (1996) (quoting Mitchell, 472 U.S. at 530);
Sterling v. Borough of Minersville, 232 F .3d 190, 197 (3d Cir. 2000).
3
a practicum course because the student had attended only
three of fifteen class sessions. Defendant Angelo Armenti,
the university president, ordered that the grade be changed
to "Incomplete," but the plaintiff r efused.
The plaintiff alleged that, as a result of his refusal, the
university suspended him from teaching the course. He
further contended that "[a]s a result of this and other
matters, the plaintiff wrote a critical r eview of Defendant
Armenti for presentation to the University Board of
Trustees." Two years later, the university terminated the
plaintiff 's employment.
The plaintiff then filed a sixteen-count complaint in a
Pennsylvania state court, naming Armenti and thirty-one
other individuals or entities as defendants. The complaint
alleged violations of state law as well as of federal and state
constitutional law. Pursuant to 28 U.S.C. S 1446(d), the
case was removed to the United States District Court for
the Western District of Pennsylvania. 2 By the time the
District Court considered the motion for summary
judgment now before us, the only claims r emaining for
disposition were federal civil rights violations alleged
against several defendants including Armenti, and a civil
rights retaliation claim against Armenti alone. Count V in
the complaint stated the retaliation claim against Armenti:
"80. Defendant Armenti retaliated against Plaintiff
because Plaintiff refused to change a student's grade at
the order of Defendant Armenti, in violation of
Plaintiff 's right to academic free expression, in
violation of the First and Fourteenth Amendments to
the United States Constitution.
81. Defendant Armenti retaliated against Plaintiff for
Plaintiff 's critical review of Defendant Armenti for the
Board of Trustees in violation of Plaintiff 's right to free
speech under the First and Fourteenth Amendments to
the United States Constitution."
_________________________________________________________________
2. Because plaintiff alleged claims arising under the Constitution and the
laws of the United States, the District Court's jurisdiction was proper
under 28 U.S.C. S 1331.
4
The District Court granted summary judgment as to all
the claims except for those in Count V. The District Court
denied defendant Armenti's motion for summary judgment
as to the Count V claims, concluding that both the
plaintiff 's criticism of Armenti and the plaintiff 's
assignment of student grades were protected speech under
the First Amendment. The District Court did not addr ess
the defendant's claim to qualified immunity. The defendant
filed a timely appeal, asserting again that qualified
immunity provides him a defense to the Count V claims.
II.
The doctrine of qualified immunity establishes"that
government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established
statutory or constitutional rights of which a r easonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). This doctrine is founded upon the
recognized "need to protect officials who are required to
exercise their discretion and the r elated public interest in
encouraging the vigorous exercise of official authority." Id.
at 807 (internal quotations and citation omitted).
We have held that the defendant is entitled to the defense
of qualified immunity if none of the following questions can
be answered in the affirmative: (1) have the plaintiffs
alleged a violation of their statutory or constitutional rights;
(2) was the right alleged to have been violated clearly
established in the existing law at the time of the violation;
and (3) should a reasonable official have known that the
alleged action violated the plaintiffs' rights. Rouse v.
Plantier, 182 F.3d 192, 196-97 (3d Cir . 1999). The
threshold-nature of the inquiry serves tofilter unfounded
claims and "promotes clarity in the legal standards for
official conduct, to the benefit of both the officers and the
general public." Wilson v. Layne, 526 U.S. 603, 609 (1999)
(citing County of Sacramento v. Lewis, 523 U.S. 833, 840-
42 n.5 (1998)); Siegert v. Gilley, 500 U.S. 226, 232 (1990)
("Decision of [the] purely legal [immunity] question[s]
permits courts expeditiously to weed out suits which fail
the test without requiring a defendant who rightly claims
5
qualified immunity to engage in expensive and time
consuming preparation to defend the suit on its merits.").
We turn, therefore, to the question of whether First
Amendment rights were violated.3
III.
The Supreme Court has held that the First Amendment
prohibits the government from r egulating speech based
upon its substantive content or the message it conveys.
Rosenberger v. Rector and Visitors of University of Virginia,
515 U.S. 819, 828 (1995). Here, we must consider whether
the alleged actions of the defendant, the pr esident of a
public university, had the effect of discouraging speech
with a disfavored message and, therefor e, amounted to an
improper conditioning of public employment. The plaintiff
has alleged two acts of retaliation and two theories
supporting First Amendment protection of his speech. First,
he asserts that retaliation following the plaintiff 's refusal to
change the grade violated a right to academic fr ee
expression under the First Amendment. Second, the
plaintiff contends that the defendant's firing him for
submitting a written criticism violated the generalized free
speech rights under the First Amendment. We will consider
these arguments in turn.
A.
Employees of federal and state government do not
relinquish their First Amendment rights to comment on
matters of public interest as a condition of their
government employment. Pickering v. Boar d of Education,
391 U.S. 563, 568 (1968). Nor do "students or teachers
shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate." T inker v. Des Moines
_________________________________________________________________
3. The First Amendment states that "Congr ess shall make no law . . .
abridging the freedom of speech . . . ." The Fourteenth Amendment
applies this provision of the Bill of Rights to the States. Gitlow v.
People
of State of New York, 268 U.S. 652, 666 (1925). In Monroe v. Pape, 365
U.S. 167 (1961), the Supreme Court held that 42 U.S.C. S 1983 creates
a remedy for violations of rights secur ed by the Constitution or the laws
of the United States. Id. at 172.
6
School District, 393 U.S. 503, 506 (1968). Furthermore, the
Supreme Court has held that the university setting is one
in which First Amendment free speech pr otections in that
context are of particular importance:
The essentiality of freedom in the community of
American universities is almost self-evident. No one
should underestimate the vital role in a democracy that
is played by those who guide and train our youth. T o
impose any strait jacket upon the intellectual leaders
in our colleges and universities would imperil the
future of our Nation.
Sweezy v. State of New Hampshire, 354 U.S. 234, 250
(1957).
These statements notwithstanding, there ar e recognized
limitations upon free speech in the university setting. For
example, we held in Edwards v. Califor nia University of
Pennsylvania, 156 F.3d 488, 491 (3d Cir . 1998), that "a
public university professor does not have a First
Amendment right to decide what will be taught in the
classroom."
In Edwards, a university professor alleged a violation of
his First Amendment rights when the school disciplined
him after a series of disputes with the administration over
course curriculum. Id. at 490. We concluded that no
violation occurred because in the classr oom, the university
was the speaker and the professor was the agent of the
university for First Amendment purposes. Id. at 491. In
support of this conclusion, the Edwards opinion quoted
from the Supreme Court opinion in Rosenberger:
[w]hen the state is the speaker, it may make content-
based choices. When the University determines the
content of the education it provides, it is the University
speaking, and we have permitted the gover nment to
regulate the content of what is or is not expr essed
when it is the speaker or when it enlists private entities
to convey its own message . . . . It does not follow,
however, . . . that viewpoint-based r estrictions are
proper when the University does not speak itself or
subsidize transmittal of a message it favors but instead
expends funds to encourage a diversity of views fr om
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private speakers. A holding that the University may not
discriminate based on viewpoint of private persons
whose speech it facilitates does not restrict the
University's own speech, which is controlled by
different principles.
Id. at 491-92 (quoting Rosenberger , 515 U.S. 819 (1995).
Edwards distinguished the rights of a professor in the
classroom from those out of the classr oom. Id. at 492. "In
the classroom" refers to those settings where the professor
is acting as the university's proxy, fulfilling one of the
functions involved in the university's "four essential
freedoms:" choosing "who may teach, what may be taught,
how it shall be taught, and who may be admitted to study."
Id. at 492 (citing Regents of Univ. of California v. Bakke,
438 U.S. 265, 312 (1978)). Because grading is pedagogic,
the assignment of the grade is subsumed under the
university's freedom to determine how a course is to be
taught. We therefore conclude that a public university
professor does not have a First Amendment right to
expression via the school's grade assignment pr ocedures.
The plaintiff 's argument to the contrary relies upon the
analysis adopted by the Court of Appeals for the Sixth
Circuit in Parate v. Isibor, 868 F .2d 821 (6th Cir. 1989). In
Parate, a non-tenured professor was forced to sign a
memorandum changing a student's grade. Id. at 823-34. He
was not permitted to note on the document that the change
was "per instructions from [the] Dean . . . ." Id. The Court
held that a professor's First Amendment right was violated
because the "assignment of a letter grade is a symbolic
communication intended to send a specific message to the
student . . . [and] is entitled to some measur e of First
Amendment protection." Id. at 827 (citing Tinker, 393 U.S.
at 505-06). The Court concluded that the University was
the speaker only as far as the grade on the student's
transcript. Id. at 829.
The Edwards framework, however , applies to the present
case and offers a more realistic view of the university-
professor relationship. Whether the school registrar is told
that a student's performance rates an"F " or an
"Incomplete" is not a matter that warrants the"intrusive
8
oversight by the judiciary in the name of the First
Amendment." Connick v. Myers, 461 U.S. 138, 146 (1983);
Wozniak v. Conry, 236 F.3d 888, 891 (7th Cir. 2001) ("Some
universities offer their faculty more control over grading
than [in this case] and maybe discretion is good. But
competition among systems of evaluation at dif ferent
universities, not federal judges, must settle the question
which approach is best."). We note that our holding today
is consistent with at least one other Court of Appeals. See
Lovelace v. Southern Methodist University, 739 F.2d 419,
426 (2d Cir. 1986) (per curiam).
B.
In his second argument, the plaintiff asserts that
retaliation following his submission of a critical evaluation
violated his free speech rights under the First Amendment.
When resolving such disputes, courts must strike "a
balance between the interests of the [employee], as a
citizen, in commenting upon the matters of public concern
and the interest of the State, as an employer , in promoting
the efficiency of the public services it per forms through its
employees" when determining whether a public employer
acted properly in discharging an employee for engaging in
speech. Pickering, 391 U.S. at 568. The thr eshold question
in this analysis is whether the employee's speech may fairly
be characterized as a matter of public concer n. Rankin v.
McPherson, 483 U.S. 378, 384 (1987).
In Connick v. Myers, a District Attor ney fired an Assistant
District Attorney for distributing a questionnaire to fellow
staff members. 461 U.S. at 141. The survey sought staff
views on the office transfer policy, office morale, the need
for a grievance committee, the level of confidence in
supervisors, and whether employees felt pressur ed to work
in political campaigns. Id.
The Court reiterated the balancing described in Pickering,
this time addressing a single question in the analysis:
whether the subject of the employee's expression was " `a
matter of legitimate public concern' upon which `free and
open debate is vital to informed decision-making by the
electorate.' " Id. at 145 (quoting Pickering, 391 U.S. at 571-
72). The Court reasoned that if the employee's speech
9
cannot be fairly characterized as constituting speech
on a matter of public concern, it is unnecessary for us
to scrutinize the reasons for her dischar ge. When
employee expression cannot be fairly consider ed as
relating to any matter of political, social, or other
concern to the community, government officials should
enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the
First Amendment.
Id. at 146 (internal footnote omitted). The Court pointed to
the standard applied in the common law tort for invasion of
privacy as the correct standard to apply when determining
whether an expression is of a kind that is of legitimate
concern to the public. Id. at 143 n.5 (citing Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)). The Cox
standard for determining whether a topic is a legitimate
matter of public concern is functional, asking whether
there is a public benefit in reporting the matter. 420 U.S. at
495.
In Connick, the Court concluded that "[w]hether an
employee's speech addresses a matter of public concern
must be determined by the content, for m, and context of a
given statement, as revealed by the whole r ecord." Id. at
148-49. The Court concluded that all but one of the
questions on the survey dealt with the individual
employee's dispute with the District Attorney and were not
"of public import in evaluating the perfor mance of the
District Attorney as an elected official." Id. at 148. Because
the questionnaire concerned matters of public interest "in
only a most limited sense . . . [t]he limited First
Amendment interest involved here does not require that
[the employer] tolerate action which he r easonably believed
would disrupt the office, undermine his authority, and
destroy close working relationships." Id. at 154.
Four years later, in Rankin v. McPherson the Supreme
Court considered the question again -- whether a
statement by an employee that led to her firing was a
matter of public concern. 483 U.S. at 384. The employee in
Rankin worked in a constable's office and had remarked
after hearing of an attempt on the life of the Pr esident, "If
they go for him again, I hope they get him." Id at 379. In
10
determining the "public concern" threshold test, the Court
reasoned that because the statement was made in the
context of a discussion about the policies of the Pr esident's
administration, and because it was said following a news
bulletin of national interest, it "plainly dealt with a matter
of public concern." Id. at 386.
Whether the subject matter of the "speech" was a
legitimate matter of public concern is a question of law.
Connick, 461 U.S. at 148 n.7. The fact that the matter now
on appeal is a legal issue distinguishes the pr esent
interlocutory appeal from that in Johnson v. Jones, 515
U.S. 304 (1995). In deciding Johnson, the Court resolved a
circuit split in the courts of appeals "about the immediate
appealability of . . . pretrial `evidence insufficiency' claims
made by public official defendants who assert qualified
immunity defenses." Johnson, 515 U.S. at 308. Although
there is some broad language in Johnson that might
suggest the Court foreclosed any consideration of the
sufficiency of the evidence when courts of appeals review
summary judgment motions, the Court limited the holding
in at least two ways. First, it noted that the decision did not
change the law for many courts of appeals.4 Johnson, 515
U.S. at 307, 318, 319 (observing that "our holding here has
been the law in several Circuits for some time" and
referring to a listing of cases that included Giuffre v. Bissell,
31 F.3d 1241 (3d Cir. 1994)). Second, the Court
acknowledged that where a district court does not clearly
state facts relevant to a question of law, it might be
appropriate for a court of appeals to "undertake a
cumbersome review of the record to determine what facts
the district court . . . likely assumed." Id . at 319. In
addition, the Supreme Court recently clarified the holding
in Johnson:
Johnson held, simply, that determinations of
_________________________________________________________________
4. We had held in Giuffre v. Bissell, 31 F.3d 1241 (3d Cir. 1994), that a
claim that "I didn't do it" is differ ent than a claim to the right of
qualified
immunity and that a denial of summary judgment motion based on the
former is not appealable. Id. at 1258 (citing Burns v. County of Cambria,
971 F.2d 1015, 1019 (3d Cir. 1992)). Our holding in Giuffre is consistent
with the later opinion by the Supreme Court.
11
evidentiary sufficiency at summary judgment ar e not
immediately appealable merely because they happen to
arise in a qualified-immunity case; if what is at issue
in the sufficiency determination is nothing more than
whether the evidence could support a finding that
particular conduct occurred, the question decided is
not truly "separable" from the plaintif f 's claim, and
hence there is no "final decision" under Cohen and
Mitchell. Johnson reaffir med that summary judgment
determinations are appealable when they resolve a
dispute concerning an "abstract issu[e] of law" relating
to qualified immunity -- typically, the issue whether
the federal right was "clearly established."
Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (citations
omitted).
In Grant v. City of Pittsburgh, 98 F .3d 116 (3d Cir. 1996),
we observed that "crucial to the resolution of any assertion
of qualified immunity is a careful examination of the record
(preferably by the district court) to establish, for purposes
of summary judgment, a detailed factual description of the
action of each individual defendant." Id. at 122. We have
also noted that although the qualified immunity inquiry is
primarily legal, "some factual allegations . . . are necessary
to resolve the immunity question." Gruenke v. Seip, 225
F.3d 290, 299 (3d Cir. 2000). Ther efore, Johnson does not
foreclose an appellate court from scrutinizing the evidence
put forward by the plaintiff following a qualified immunity
summary judgment motion.
The role of a factual inquiry resolving a claim to qualified
immunity is addressed in Anderson v. Cr eighton, 483 U.S.
635 (1987). In Creighton, the Supr eme Court considered
whether an officer was liable for conducting an
unreasonable search if a reasonable officer could have
believed that the search was lawful. Id. at 637. The Court
required a particular inquiry, stating that the "relevant
question in this case . . . is the objective (albeit fact-
specific) question whether a reasonable officer could have
believed Anderson's warrantless search to be lawful, in light
of clearly established law and the information the searching
officers possessed." Id. at 641. The Court vacated the
judgment and remanded the case with specific instructions
12
that any discovery "should be tailored specifically to the
question of Anderson's qualified immunity." Id. at 646 n.6.
Creighton instructs that "the balance that our cases
strike between the interests in vindication of citizens'
constitutional rights and in public officials' ef fective
performance of their duties," id . at 639, requires plaintiffs
to respond to a defendant's claim of qualified immunity
with evidence that the actions alleged "ar e actions that a
reasonable officer could have believed [un]lawful." Id. at
646 n.6. As a result, a respondent does not satisfy the Rule
56(e) burden by relying upon bare allegations or assertions
of abstract rights. If the defendant official is liable only
where "[t]he contours of the right [are] sufficiently clear that
a reasonable official would understand that what he is
doing violates that right," id. at 640, it is reasonable for a
court considering a qualified immunity summary judgment
motion to require that the plaintif f make clear what the
alleged violation is. Where plaintiff fails to present
particularized facts, the motion should be granted. 5
In the present case, it is clear that the plaintiff did not
satisfy Creighton. The District Court conceded that it did
not know the content of the speech at issue. The r ecord
contains only two clues about the content of the evaluation:
the assertion in the complaint that the plaintif f 's evaluation
was "critical," and the plaintiff 's testimony that the
evaluation was submitted on a two-page form that "had
room to respond to four or five dif ferent things that had to
do with academic standards and faculty morale and how
the president dealt with various issues on campus."
Although his deposition testimony indicates that he had
access to a copy of the completed evaluation for m, he did
not enter the document into the record. Nor does the
plaintiff disclose the substance of his comments on the
form, saying only that he did not choose the subjects, but
_________________________________________________________________
5. This is not a weighing of evidence for a deter mination of whether
there
is a genuine issue of fact, such as the Court held was not appealable in
Johnson, because the legal question here is separable from the inquiry
that is the basis of the plaintiff 's claim. Behrens, 516 U.S. at 313.
Rather, the requirement prevents the clever plaintiff from bypassing the
qualified immunity "filter" simply by identifying an abstract right.
13
that his was "a response to an evaluation form that I had
been given."
It is the words that the plaintiff wr ote on the form that
allegedly motivated the retaliation. When considering a
summary judgment motion, a court must have befor e it the
"content, form, and context of a given statement, as
revealed by the whole record" to determine if the
statements were of legitimate public concer n. The plaintiff
did not provide such proof, alleging only that the speech
was "critical." In the absence of evidence, the District Court
improperly inferred that the speech addr essed "academic
integrity." By failing to require the proof, the District Court
allowed the plaintiff "to convert the rule of qualified
immunity . . . into a rule of virtually unqualified liability
simply by alleging violations of extremely abstract rights."
Creighton, 483 U.S. at 639.
Finally, even if we were convinced that the plaintiff 's
response to the summary judgment motion satisfied
Creighton, we conclude that summary judgment would have
been appropriate nonetheless. On the facts found by the
District Court, the subject of the plaintiff 's speech closely
resembles that of the questions on the survey in Connick.
Those dealt with office morale, the transfer policy, and
employee confidence in supervisors. Connick , 461 U.S. at
141. The District Court here reasoned that the issues
contained speech which was in the category of "academic
integrity," "relevant to the gover ning of the University, and
therefore, . . . of public concern," but this is comparable to
the dissent in Connick concluding that the issues there
"could reasonably be expected to be of inter est to persons
seeking to develop informed opinions about the manner in
which . . . an elected official . . . dischar ges his
responsibilities." Id. at 163 (Br ennan, J., dissenting). Had
the plaintiff been reprimanded for speaking regarding, for
example, grade inflation, a specific subject about which
there is demonstrated interest, he might have satisfied this
test. As it stands, the speech alleged reflects little more
than one employee's dissatisfaction with an administrative
decision by his employer, Connick, 461 U.S. at 148-49. As
such, there would be no public benefit in r eporting this
matter, Cox, 420 U.S. at 495, and wefind no constitutional
violation.
14
IV.
We conclude that the defendant is entitled to qualified
immunity as to Count V because no actual constitutional
violation was alleged. For this reason, that portion of the
judgment of the District Court on appeal will be r eversed
and on remand the District Court will be instructed to enter
summary judgment for the defendant university pr esident.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
15