Pugel, Diane v. Bd Trustees Univ IL ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3717
DIANE PUGEL,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY
OF ILLINOIS,
a public corporation,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 C 2036—Michael P. McCuskey, Judge.
____________
ARGUED MARCH 30, 2004—DECIDED AUGUST 6, 2004
____________
Before POSNER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. After dismissal for academic miscon-
duct from the University of Illinois (“the University”), Diane
Pugel brought this 42 U.S.C. § 1983 action against the Board
of Trustees of the University (“the Board”). She alleged vio-
lations of her due process and free speech rights. Ms. Pugel
also brought state claims. The district court dismissed the
federal claims and declined to exercise supplemental juris-
2 No. 03-3717
diction over the state claims. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
Given the procedural posture in which this case comes to
us, we must accept the allegations of Ms. Pugel’s complaint
as factually true and must rely solely upon those allegations.
Prior to her dismissal, Ms. Pugel was enrolled as a graduate
student in the physics department at the University of
Illinois at Urbana-Champaign. She also served as a teaching
assistant and received a stipend from the University for her
services. In October 2000, Ms. Pugel submitted her research
to the scientific journal Nature.1 On March 15, 2001, she
presented that research at a conference of the American
Physical Society (“the APS”).
On April 27, 2001, the University initiated a disciplinary
action against Ms. Pugel based on allegations of academic
misconduct. The Research Standards Officer sent Ms. Pugel
a letter indicating that the University was investigating
whether Ms. Pugel had fabricated the results included in
Figure 2 of the submission to Nature and whether, at the APS
conference, she had presented results that she knew to be
invalid. Specifically, the letter alleged:
1
Ms. Pugel’s complaint alleged that the Nature submission oc-
curred in October 2001, but the submission could not have
occurred in 2001 given the dates referenced in other allegations.
In her brief to this court, Ms. Pugel indicates that the research
was submitted to Nature on October 27, 2000.
No. 03-3717 3
1) You continued to use a seriously flawed algorithm to
analyze your experimental data even after you were
informed that the negative probabilities included in the
algorithms were nonsensical; 2) You presented the data
in Figure 2 at the March 2001 meeting of the American
Physical Society, even though you knew that there were
questions about the validity of the data; 3) You have not
produced a satisfactory explanation of how the points in
this graph in Figure 2 of the Nature submission were gen-
erated, despite requests for the original data and a docu-
mented analysis; and 4) You were not able to demonstrate
the generation of the points in Figure 2 from experimental
data to Professor Laura Greene when requested to do so in
person.
R.1 at 3. In accordance with University policies and proce-
dures, a three-member “Inquiry Team” was appointed to
review the factual allegations and to determine whether suf-
ficient evidence of academic misconduct existed to warrant
a full investigation.
On or about August 1, 2001, the Inquiry Team issued a
report that found sufficient credible evidence to proceed
with a full investigation. The report recommended that such
an investigation focus on events from September 2000 through
April 2001. Specifically, the Inquiry Team recommended full
investigation of the following charges:
1) that Ms. Pugel fabricated the data included in Figure
2 of the submission to Nature on October 27, 2001 [sic];
and, 2) that Ms. Pugel presented data that she knew to
be invalid at the APS Meeting on March 15, 2001.
R.1 at 3-4. University policy required the Vice Chancellor for
Research to review the Inquiry Team’s report and to define
the subject matter of further investigation in a written
4 No. 03-3717
charge to a four-member “Investigation Panel.” The Vice
Chancellor therefore submitted the Inquiry Team’s recom-
mendations for investigation as the specific charges against
Ms. Pugel. At this time, Ms. Pugel was notified by the
Research Standards Officer that the University was proceed-
ing with the next phase of the disciplinary process and that
the Investigation Panel had been appointed.
The Investigation Panel conducted a review of the charges.
On September 27, 2001, the panel held a hearing at which
Ms. Pugel had an opportunity to present evidence. Ms. Pugel
presented the testimony of her physician, who opined that
Ms. Pugel could not have been guilty of academic miscon-
duct because she suffered from attention deficit hyperactiv-
ity disorder (“ADHD”). One of the panel members left the
meeting during the presentation of this evidence.
On December 14, 2001, the panel concluded its investiga-
tion and issued a report in which it determined that
Ms. Pugel fabricated the results included in Figure 2 of
the submission to Nature on October 27, 2001 [sic], and
that she presented results she knew to be invalid at the
APS Meeting on March 15, 2001. In the view of the Panel,
these actions constitute grave academic misconduct un-
der the University of Illinois Policy and Procedures on
Academic Integrity in Research and Publication.
R.1 at 4. On April 17, 2002, the Acting Research Standards
Officer sent a certified letter to Ms. Pugel, informing her that
the Chancellor concurred with the Investigation Panel’s
conclusion of academic misconduct and that she had deter-
mined that the appropriate sanction for the misconduct was
dismissal from the University. Ms. Pugel appealed the
Chancellor’s decision to the President of the University on
six different grounds. On May 30, 2002, the President re-
No. 03-3717 5
sponded by letter, denying relief with respect to five of those
grounds. He ultimately concluded, however, “that the
Senate Committee should review the Investigative Report
and decide if the violation of academic integrity in this case
warrants a sanctioned dismissal.” R.1 at 5.
On September 3, 2002, the Executive Director and Associate
Dean of Students informed the Dean of the Graduate College
as well as Ms. Pugel and her counsel that the Senate Com-
mittee on Student Discipline had determined that dismissal
was warranted. On the basis of that decision, Ms. Pugel was
dismissed from the University effective nunc pro tunc
August 23, 2002. Ms. Pugel then brought this action against
the Board.
B. District Court Proceedings
Ms. Pugel alleged that her dismissal violated her due pro-
cess and free speech rights. The Board filed a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The magistrate judge issued a report recommend-
ing dismissal, and the district court adopted the magistrate
judge’s recommendation.
With respect to the due process claims, the district court
concluded that the allegations of the complaint revealed that
Ms. Pugel had received notice and a meaningful oppor-
tunity to clear her name. As to the free speech claims, the
district court concluded that the University’s interest in
academic integrity outweighed any speech interests of Ms.
Pugel. Having dismissed the federal constitutional claims,
the district court declined to exercise supplemental jurisdic-
tion over Ms. Pugel’s state claims.
6 No. 03-3717
II
DISCUSSION
A. Standard of Review
We review de novo the district court’s decision to grant a
motion to dismiss under Rule 12(b)(6). See Gonzalez v. City
of Chicago, 239 F.3d 939, 940 (7th Cir. 2001). We accept all
well-pleaded facts as true, and we draw all reasonable infer-
ences in Ms. Pugel’s favor. See id. The motion is properly
granted when the plaintiff can prove no set of facts in sup-
port of her claim that would entitle her to relief. See Martinez v.
Hooper, 148 F.3d 856, 858 (7th Cir. 1998).
B. Due Process Claim
A procedural due process claim requires a two-fold analysis.
First, we must determine whether the plaintiff was deprived
of a protected interest; second, we must determine what pro-
cess is due. See Doherty v. City of Chicago, 75 F.3d 318, 322
(7th Cir. 1996) (citing Logan v. Zimmerman Brush Co., 455 U.S.
422, 428 (1982); Forbes v. Trigg, 976 F.2d 308, 315 (7th Cir.
1992)). We assume for purposes of this appeal that Ms.
Pugel was deprived of a cognizable interest.2 We therefore
2
It is undisputed that Ms. Pugel was discharged on the basis of
academic misconduct both from her status as a student and from
her employment as a teaching assistant. We assume that Ms. Pugel
was deprived of a protected interest in these circumstances.
It is an open question in this circuit as to whether a college or
university student has a property interest in enrollment that is
protected by the Due Process Clause. See, e.g., Osteen v. Henley, 13
F.3d 221, 223 (7th Cir. 1993). Nor do we have occasion, absent any ar-
gument by counsel, to determine whether Ms. Pugel had a prop-
(continued...)
No. 03-3717 7
address only whether Ms. Pugel was denied adequate pro-
cedural protections in the disciplinary proceedings.
1. Due process requirements
The hallmarks of procedural due process are notice and an
opportunity to be heard. See Mullane v. Cent. Hanover Bank &
2
(...continued)
erty right in her contractual relationship with the University. Cf.
Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill.
1987) (holding that an employee handbook can create enforceable
contractual rights under traditional contract formation require-
ments). Also, “[a] person does not have a protectable liberty or
property interest in her reputation.” Hojnacki v. Klein-Acosta, 285 F.3d
544, 548 (7th Cir. 2002) (citing Paul v. Davis, 424 U.S. 693, 701, 711-12
(1976)).
However, the Supreme Court also has indicated that “[w]here
a person’s good name, reputation, honor, or integrity is at stake
because of what the government is doing to him, notice and an
opportunity to be heard are essential.” Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 573 (1972) (internal quotation marks
and citation omitted). Ms. Pugel was dismissed from her position
as a student and teaching assistant on charges of academic dis-
honesty. Under Roth, therefore, we assume that Ms. Pugel had a
protectable interest and was entitled to notice and an opportunity
to be heard. See Bd. of Curators of the Univ. of Missouri v. Horowitz,
435 U.S. 78, 82-85 (1978) (discussing, under Roth, the possible
existence of a liberty interest in pursuing a medical education and
ultimately assuming the existence of a liberty or property interest
for the purpose of analyzing the petitioner’s due process claim);
cf. Head v. Chicago Sch. Reform Bd. of Trs., 225 F.3d 794, 801 (7th Cir.
2000) (indicating that if a public employee can show both the
public infliction of a stigma as well as a “tangible loss of other
employment opportunities as a result of the public disclosure,”
then the employee can state a claim for deprivation of a liberty
interest).
8 No. 03-3717
Trust Co., 339 U.S. 306, 313 (1950). Due process is a flexible
concept that “ ‘calls for such procedural protections as the
particular situation demands.’ ” Gilbert v. Homar, 520 U.S.
924, 930 (1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)). To evaluate the adequacy of procedural protections in
a particular situation, we consider “ ‘[f]irst, the private
interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally,
the Government’s interest.’ ” Id. at 931-32 (quoting Mathews
v. Eldridge, 424 U.S. 319, 335 (1976)).
Ms. Pugel is an employee of the University, but her em-
ployment arises out of her status as a graduate student. As
a general matter, the Supreme Court’s case law on the ade-
quacy of procedural protection has distinguished between
employees and students. In Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985), upon which both parties rely,
the Supreme Court considered the Mathews factors and
determined that a pretermination hearing was necessary in
the case of a tenured public employee. See id. at 542-46. The
Court indicated that such an employee is “entitled to oral or
written notice of the charges against him, an explanation of
the employer’s evidence, and an opportunity to present his
side of the story.” Id. at 546.
The Supreme Court has approved less rigid procedural
requirements in the student context, however. In Goss v.
Lopez, 419 U.S. 565 (1975), the Supreme Court indicated that
a high school student facing a ten-day suspension for mis-
conduct was entitled to “oral or written notice of the charges
against him and, if he denies them, an explanation of the
evidence the authorities have and an opportunity to present
his side of the story.” Id. at 581. Courts addressing graduate
student dismissals on charges of academic dishonesty
No. 03-3717 9
traditionally have relied upon Goss. See Than v. Univ. of
Texas Med. Sch. at Houston, 188 F.3d 633, 635 n.2 (5th Cir.
1999); Crook v. Baker, 813 F.2d 88, 97 (6th Cir. 1987); Nash v.
Auburn Univ., 812 F.2d 655, 660-61 (11th Cir. 1987); cf. Hall
v. Med. Coll. of Ohio at Toledo, 742 F.2d 299, 308-09 (6th Cir.
1984) (addressing the rescission of a previously awarded mas-
ter’s degree on a charge of academic dishonesty).
Nonetheless, the deprivation to which Ms. Pugel was sub-
jected is more severe than the ten-day high-school suspensions
at issue in Goss. See Bd. of Curators of the Univ. of Missouri v.
Horowitz, 435 U.S. 78, 86 n.3 (1978) (“[T]he deprivation to
which respondent was subjected—dismissal from a graduate
medical school—was more severe than the 10-day suspen-
sion to which the high school students were subjected in
Goss.”). The severity of the deprivation suggests the appro-
priateness of “more formal procedures.” Goss, 419 U.S. at
584. Indeed, more extensive procedures in the context of a
university dismissal comport with the Supreme Court’s own
admonition in Goss that due process requirements depend
upon context. See id. at 578; see also id. at 584.3 Accord-
3
We note that, in Horowitz, the Supreme Court indicated that
although the deprivation at issue was more severe, a medical stu-
dent’s dismissal for unsatisfactory academic performance warranted
“far less stringent procedural requirements” than dismissal for
misconduct. Horowitz, 435 U.S. at 86. Given “all relevant factors, in-
cluding the evaluative nature of the inquiry and the significant
and historically supported interest of the school in preserving its
present framework for academic evaluations,” the Court concluded
that a hearing was not required by the Fourteenth Amendment. Id.Rather, notice of unsatisfactory academic performance and a care-
ful and deliberate dismissal decision met due process require-
ments. See id. at 85.
A charge of fabricated data and improper research presentation is
not unrelated to the issue of a student’s satisfactory academic
(continued...)
10 No. 03-3717
ingly, those cases considering the adequacy of notice and
hearing procedures in the context of graduate student depri-
vations have dealt with procedural requirements signifi-
cantly more extensive than those described in Goss.4
Even assuming, then, that Ms. Pugel was entitled to
heightened levels of process, such as the requirements
contemplated in Loudermill, she has not alleged a viable claim
for a violation of due process. It is clear from the complaint
3
(...continued)
progress. However, we assume for purposes of this opinion that
Ms. Pugel’s discharge on allegations of academic fraud constituted
a disciplinary decision. Cf. Fernand N. Dutile, Disciplinary Versus
Academic Sanctions in Higher Education: A Doomed Dichot-
omy?, 29 J.C. & U.L. 619 (2003).
4
See, e.g., Than v. Univ. of Texas Med. Sch. at Houston, 188 F.3d
633, 634-35 (5th Cir. 1999) (concluding that student was not de-
prived of due process when process that student received included
“ample notice of the charges and the evidence,” a hearing before an
impartial and knowledgeable hearing officer and representation
at that hearing by counsel, who was able to call nine witnesses,
to introduce more than sixty exhibits, to cross-examine adverse
witnesses and to make an opening and closing statement); Crook
v. Baker, 813 F.2d 88, 98-99 (6th Cir. 1987) (determining, among
other issues, that student was not deprived of due process when
his counsel was unable to examine and cross-examine witnesses
at the disciplinary hearing); Nash v. Auburn Univ., 812 F.2d 655,
660-67 (11th Cir. 1987) (concluding that students were not denied
due process in timing and content of formal notice, inability to cross-
examine witnesses, denial of recess, and various other circum-
stances that students described as prejudicial or inadequate); cf.
Hall v. Med. Coll. of Ohio at Toledo, 742 F.2d 299, 308-09 (6th Cir. 1984)
(concluding that right to counsel at disciplinary hearing was not
a “clearly established” right but noting that “[w]e do not, however,
speak to the issue of whether such a right should exist in this kind
of disciplinary proceeding”).
No. 03-3717 11
that Ms. Pugel received written notice of the charges against
her and a pretermination hearing in which she had an op-
portunity to explain her side of the story. Ms. Pugel alleged,
however, that certain deficiencies in the notice and hearing
she received constitute due process violations. We disagree.
2. Procedures afforded Ms. Pugel
We review first the process Ms. Pugel received. As alleged
in the complaint, in April of 2001, Ms. Pugel received notice
of an academic inquiry into her conduct in generating and
presenting her data.5 That inquiry led to a full-scale in-
5
Ms. Pugel may have had notice of faculty concern with her meth-
odology even prior to this time. One of Ms. Pugel’s own allegations
suggests that, before the March 2001 APS meeting and prior to the
allegations of misconduct, she had been warned as to the in-
validity of her data:
11. Specifically, the research standards officer in a letter
dated April 27, 2001 set forth the specific allegations for the
Inquiry Team to consider:
1) You continued to use a seriously flawed algorithm to
analyze your experimental data even after you were
informed that the negative probabilities included in the
algorithms were nonsensical; 2) You presented the data
in Figure 2 at the March 2001 meeting of the American
Physical Society, even though you knew that there were
questions about the validity of the data . . . .
R.1 at 3. Ms. Pugel did not allege any facts contrary to the letter’s
accusations.
It might be reasonable therefore to infer that she was in fact
questioned as to the validity of the data prior to its presentation
(continued...)
12 No. 03-3717
vestigation, the existence of which Ms. Pugel was notified in
the fall of 2001. At this time, she also was notified of the
formal charges against her: the submission of fraudulent
data to Nature and the presentation of data she knew to be
invalid at the APS conference. In September 2001, a hearing
was held before the Investigation Panel, at which time Ms.
Pugel had an opportunity to present witnesses and to intro-
duce evidence on her behalf. The December decision of the
Investigation Panel, that Ms. Pugel had engaged in academic
misconduct, was subject to review by the Chancellor. In April
of 2002, Ms. Pugel received notice that the Chancellor con-
curred with the Investigation Panel and had determined that
dismissal was appropriate. Ms. Pugel then had an op-
portunity to appeal that decision to the President. The
President affirmed the Chancellor’s decisions on five of six
grounds asserted by Ms. Pugel but did, in fact, reverse the
Chancellor’s discharge decision on the ground that another
decisionmaking body should review the sanction. In
September of 2002, Ms. Pugel was informed that the Senate
Committee on Student Discipline had determined that dis-
missal was warranted and that her discharge had become
effective as of August 23, 2002.
We turn next to Ms. Pugel’s specific allegations of inade-
quate process. As part of her due process claim, Ms. Pugel
alleged that the University failed to inform her of the charges
and that the decision to discharge her was based on an alle-
5
(...continued)
at the APS conference. Cf. Slaney v. Int’l Amateur Athletic Fed’n,
244 F.3d 580, 597 (7th Cir. 2001) (“[T]he court is not required
to ignore facts alleged in the complaint that undermine the
plaintiff’s claim.”). Nonetheless, in cautious deference to the
standard of review, we do not rely upon any warnings Ms. Pugel
may have received prior to April of 2001.
No. 03-3717 13
gation abandoned before the formal charges. These claims
contradict her prior factual allegations. According to her
own complaint, Ms. Pugel received written notice of an
inquiry into her research. She later received written notice
of formal charges that she fabricated data submitted to
Nature and that she presented data she knew to be invalid
at the APS meeting. The Investigation Panel found Ms.
Pugel guilty of those charges. The Senate Committee con-
cluded that dismissal was warranted based on those con-
clusions. Thus, Ms. Pugel’s own complaint reveals that she
had notice of the charges against her and that the decision
to discharge her was based on those same charges. This
court is not obligated by the standard of review to disregard
factual allegations that undermine a plaintiff’s claim. See,
e.g., Roots P’ship v. Lands’ End, Inc., 965 F.2d 1411, 1416 (7th
Cir. 1992); see also Endsley v. City of Chicago, 230 F.3d 276, 284
(7th Cir. 2000) (indicating that a plaintiff may plead herself
out of court by including factual allegations, which, if true,
reveal that legal rights were not invaded).
Ms. Pugel further alleged that she lacked a meaningful
opportunity for a hearing. She submits that the Investigation
Panel reached a conclusion contrary to the testimony of her
physician and that one of the Investigation Panel members
did not hear a portion of that testimony. We conclude that
these alleged insufficiencies do not rise to the level of a
constitutional deprivation.
First, according to the complaint, Ms. Pugel’s physician
testified that she could not be guilty of academic miscon-
duct because she suffered from ADHD. Due process did not
entitle Ms. Pugel to a favorable result based on this testi-
14 No. 03-3717
mony, only to a meaningful opportunity to present it.6 It is
clear from the complaint that, in presenting her physician’s
testimony, Ms. Pugel had an opportunity to explain why she
should not be found guilty of academic misconduct. Due
process does not require decisionmakers to adopt the charged
party’s explanation.
Second, the absence of one panel member from a portion
of the physician’s testimony did not invalidate the mean-
ingfulness of the hearing. Three other members of the
Investigation Panel were present, and the panel’s decision
was subject to further review by the Chancellor, President
and Senate Committee. Although the panel member’s absence
may have violated Ms. Pugel’s rights under the University’s
policies, a violation of state law is not necessarily a violation of
due process. See Osteen v. Henley, 13 F.3d 221, 225 (7th Cir.
1993) (“[A] violation of state law (for purposes of this case
the student judicial code may be treated as a state law) is
not a denial of due process, even if the state law confers a
procedural right.”).
Ms. Pugel’s allegations reveal that she received an oppor-
tunity to present witnesses on her behalf to the Investigation
Panel. After the hearing and determination of misconduct,
she was able to appeal the Chancellor’s decision to dis-
6
See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)
(“The opportunity to present reasons, either in person or in
writing, why proposed action should not be taken is a fundamen-
tal due process requirement.”); cf. Remer v. Burlington Area Sch.
Dist., 286 F.3d 1007, 1010-11 (7th Cir. 2002) (noting in the context
of a high school expulsion that due process requires a meaningful
opportunity to be heard); Linwood v. Bd. of Educ., 463 F.2d 763, 770
(7th Cir. 1972) (indicating in the case of a high school expulsion
that a “hearing must be at a meaningful time and in a meaningful
manner”).
No. 03-3717 15
charge her to the University’s President. She then received
a further review of the sanction by the Senate Committee on
Student Discipline. The complaint does not allege that these
procedures were a sham. Cf. Levenstein v. Salafsky, 164 F.3d
345, 351-52 (7th Cir. 1998) (holding that constructively
discharged medical school professor who essentially alleged
that procedures were “a sham through and through” suffi-
ciently alleged a due process violation). Nor do the specific
allegations of error rise to the level of a due process vio-
lation. Thus, the complaint itself establishes that Ms. Pugel
received substantial opportunity for hearing that comports
with due process.
In sum, according to Ms. Pugel’s own complaint, five
decisionmaking entities found evidence that she had fabri-
cated data and then publicly had presented that data knowing
it to be invalid. The ultimate decisionmakers determined
that the misconduct warranted dismissal. Throughout the
seventeen-month disciplinary process, Ms. Pugel received
notice of the charges against her and of the decisionmakers’
determinations. She had an opportunity both to present
evidence on her behalf and to appeal the discharge decision.
Accepting these factual allegations as true, we conclude that
Ms. Pugel’s claims of inadequate process either contradict
her factual allegations or do not rise to the level of constitu-
tional concern. Ms. Pugel therefore has failed to state a
claim for violation of due process.
C. Free Speech Claim
We pause at the threshold of our analysis of the free
speech claim to note specifically the procedural posture and
the context of this particular case. First, in analyzing Ms.
Pugel’s First Amendment claim, the parties and the district
court focused on Ms. Pugel’s status as a teaching assistant.
16 No. 03-3717
As a teaching assistant employed by the University, Ms.
Pugel was a public employee as well as a graduate student.7
In prior cases involving free speech claims in the context of
public employment, we have proceeded cautiously in review-
ing dismissals on the basis of the pleadings.8 Indeed, we have
stated that “ ‘it would be a rare case indeed where the
pleadings as a whole would permit judgment as a matter of
law’ in favor of the employer.” Trejo v. Shoben, 319 F.3d 878,
885 (7th Cir. 2003) (quoting Gustafson v. Jones, 117 F.3d 1015,
7
Because we adopt the parties’ reliance on Ms. Pugel’s status as
a public employee and analyze her claims under that status, we
have no occasion to express an opinion about the appropriate
framework for analysis of graduate student speech. Compare
Brown v. Li, 308 F.3d 939, 947-54 (9th Cir. 2002) (Graber, J.)
(applying Hazelwood School District v. Kuhlmeier, 484 U.S. 260(1988), to graduate student’s curricular speech), with id. at 956,
960-63 (Reinhardt, J., concurring in part and dissenting in part)
(rejecting application of Hazelwood to college and graduate student
speech). See generally Tom Saunders, Case Comment, The Limits
on University Control of Graduate Student Speech, 112 Yale L.J.
1295 (2003) (advocating framework resembling public employment
analysis in the context of graduate student speech).
8
See Trejo v. Shoben, 319 F.3d 878, 885-86 (7th Cir. 2003) (de-
termining that allegations that professor was discharged on the
basis of speech that certain graduate students had found “too pro-
vocative, insensitive, and/or ‘politically incorrect’ ” stated a claim
for violation of free speech rights but ultimately affirming the district
court’s dismissal of the First Amendment claim on the ground that
discovery with respect to another claim had revealed that the
University would have been entitled to summary judgment);
Eberhardt v. O’Malley, 17 F.3d 1023, 1025-28 (7th Cir. 1994) (de-
termining that allegations that attorney was discharged for writ-
ing a novel stated a claim for violation of free speech rights and
reversing the district court’s decision to dismiss the First Amend-
ment claim under Federal Rule 12(b)(6)).
No. 03-3717 17
1019 (7th Cir. 1997)). Thus, we recognize, as did the district
court, that the procedural posture of this case necessitates
cautious review. However, we also recognize that, despite
this cautionary approach, a plaintiff nevertheless can plead
herself out of court “by including factual allegations which,
if true, show that [her] legal rights were not invaded.”
Endsley, 230 F.3d at 284; see also Eberhardt v. O’Malley, 17
F.3d 1023, 1028 (7th Cir. 1994) (concluding that due process
claim was dismissed properly because “the detail of the
complaint does defeat the pleader”). Acknowledging both
principles, we now proceed in our analysis of Ms. Pugel’s
free speech claim.
In the context of a non-tenured professor’s First Amendment
rights, this court has affirmed the right of members of a
university community to “engage in academic debates, pur-
suits, and inquiries,” while noting nevertheless that a public
employee’s right to free speech is not absolute. Trejo, 319
F.3d at 884. We therefore evaluate Ms. Pugel’s speech under
the well-established Connick-Pickering framework of analysis.
See id.; see also Connick v. Myers, 461 U.S. 138 (1983); Pickering v.
Bd. of Educ., 391 U.S. 563 (1968).
In Trejo, this court commented: “[W]here the employer
brings a motion to dismiss the employee’s free speech claim
on the basis of the pleadings rather than on the facts in the record,
the speech may be presumed to involve a matter of ‘public
concern’ if it touches upon ‘any matter for which there is
potentially a public’ interest.” Trejo, 319 F.3d at 885 (quoting
Eberhardt, 17 F.3d at 1026). We thus assumed that an allega-
tion of “ ‘academic and intellectual debate’ ” on matters of
human sexuality alleged a matter of public concern. Id.Similarly, Ms. Pugel’s complaint alleged the “presentation
of scientific research . . . by her as an interested citizen to a
group of scientists.” R.1 at 5. We therefore assume that Ms.
18 No. 03-3717
Pugel sufficiently has alleged speech that “warrant[s] some
level of constitutional protection.” Trejo, 319 F.3d at 885.9
We conclude, however, under Pickering, that the University’s
interest as an employer outweighed Ms. Pugel’s interest in
speaking. See Pickering, 391 U.S. at 568. As we have dis-
cussed, the University determined through its internal dis-
ciplinary process that Ms. Pugel knowingly presented invalid
data at the APS conference. A scientific presentation is con-
nected directly with the University’s mission of intellectual
enrichment and research. Moreover, the public presentation of
false data by a graduate-level student affiliated with the
University has significant ramifications on the discipline
and rigor of the University’s intellectual enterprise and, as
a result, on the University’s reputation in the broader aca-
demic and scientific community. These factors weigh heavily
in favor of the University’s right to make employment (and
enrollment) decisions based on Ms. Pugel’s APS presenta-
tion.10 Cf. Feldman v. Ho, 171 F.3d 494, 497-98 (7th Cir. 1999)
9
“[F]alse and recklessly made” speech may not be entitled to First
Amendment protection even if it purports to touch upon matters of
public interest. McGreal v. Ostrov, 368 F.3d 657, 673 (7th Cir. 2004);
see also Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 771 (1976) (“Untruthful speech, com-
mercial or otherwise, has never been protected for its own sake.”).
Ms. Pugel’s complaint does not plead as to the truth or falsity of
the University’s charge that she knowingly presented invalid
data, however, and it would be inappropriate under the standard
of review to assume that her speech was, in fact, “false and reck-
lessly made.” We therefore draw the opposite inference and assume
instead that the speech involved a matter of public concern under
Connick.
10
The force of this principle is not undermined by the allegation
that Ms. Pugel appeared at the APS conference voluntarily, absent
a degree requirement. Nor is it undermined by the allegation that
(continued...)
No. 03-3717 19
(noting that university’s faculty employment decisions were
“both inevitably concerned with speech and so central to a
university’s mission that the university’s role as employer
dominates”). Thus, we hold that the University’s interest in
protecting its academic integrity clearly outweighs any interest
Ms. Pugel had in presenting what the University deter-
mined to be fraudulent data.
The right of free speech protects the marketplace of ideas,
which is “broadly understood as the public expression of
ideas, narratives, concepts, imagery, opinions—scientific,
political, or aesthetic—to an audience whom the speaker seeks
to inform, edify, or entertain.” Swank v. Smart, 898 F.2d 1247,
1251 (7th Cir. 1990). Yet, despite the breadth of protection
afforded the marketplace of ideas, the First Amendment
does not protect Ms. Pugel from the academic and employ-
ment consequences that ensued from her research presenta-
tion when the University determined, through constitutionally
adequate disciplinary proceedings, that the presentation
was fraudulent.
D. Supplemental Jurisdiction
Given our conclusion that the district court properly dis-
missed the due process and free speech claims, Ms. Pugel’s
argument that the court improperly declined to exercise
supplemental jurisdiction over her state claims similarly
fails. See, e.g., Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244,
10
(...continued)
University policies required her to respond to questions. By Ms.
Pugel’s own allegation, the University required “proper academic
response.” R.1 at 5 (emphasis added). The University was entitled to
deem Ms. Pugel’s response improper to the extent it determined
that she presented fraudulent data.
20 No. 03-3717
1251 (7th Cir. 1994) (“[T]he general rule is that, when all fed-
eral claims are dismissed before trial, the district court
should relinquish jurisdiction over pendent state-law claims
rather than resolv[e] them on the merits.” (citing United
Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966))).
We note further that Ms. Pugel raised this issue only in her
reply brief. “Arguments raised for the first time in a reply
brief are waived.” James v. Sheahan, 137 F.3d 1003, 1008 (7th
Cir. 1998).
Conclusion
We conclude that the district court properly dismissed
Ms. Pugel’s due process and free speech claims on the basis
of the complaint and properly declined to exercise supple-
mental jurisdiction over her state claims. Ms. Pugel’s allega-
tions themselves, accepted as true, reveal that her constitu-
tional rights were not invaded. Accordingly, we affirm the
judgment of the district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-6-04