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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term. 1993
Vacated: November 14, 1994
Docket No. 93-7876
BERNARD HARLESTON, individually
and in his official capacity as
president of City College of New York,
W. ANN REYNOLDS, individually and in
her official capacity as Chancellor
of City University of New York,
JAMES P. MURPHY, EDITH B. EVERETT,
HERMAN BADILLO, SYLVIA BLOOM,
GLADYS CARRION, LOUIS C. CENCI,
MICHAEL J. DEL GUIDICE, STANLEY FINK,
WILLIAM R. HOWARD, HAROLD M. JACOBS,
SUSAN MOORE MOUNER, CALVIN O. PRESSLEY,
and THOMAS TAM, individually and in
their official capacities as Trustees
of City University of New York,
Before: VAN GRAAFEILAND and McLAUGHLIN, Circuit Judges, and BURNS[*],
District Judge. [*] Honorable Ellen Bree Burns, of the United States
District Court for the District of Connecticut, sitting by designation.
In Jeffries v. Harleston, 21 F.3d 1238 (2d Cir. 1994), we held that a
city university could not fire a non-policymaking employee for speaking on
issues of public concern unless the speech actually disrupted government
operations. See 21 F.3d at 1245-47. Subsequently, in an unrelated case, a
plurality of the United States Supreme Court indicated that: the
government could fire such an employee based on a reasonable prediction
that the speech will cause disruption. See Waters v. Churchill, 511 U.S.,
114 S.Ct. 1878, 1887, 1889 (1994) (plurality opinion). The Supreme Court
then vacated the judgment entered in Jeffries, and remanded to us for
reconsideration in light of Waters. See Harleston v. Jeffries, 115 S.Ct.
502, 503 (1994) (memorandum).
We now reverse the judgment of the district court, and remand with
instructions to enter judgment for the defendants. REVERSED and REMANDED
with instructions to enter judgment for the defendants.
Kathie Ann Whipple, Acting Bureau Chief, Office of the Attorney General
of the State of New York, (Dennis C. Vacco, Attorney General of the State
of New York, of counsel) for Defendants-Appellants.
Joseph Fleming, New York, NY, for Plaintiff--Appellee.
Sheldon D. Camhy, Camhy Karlinsky & Stein, New York, NY, for amicus
curiae Anti-Defamation League.
Kenneth S. Stern, Samuel Rabinove, Wendy Lecker, Penina Goldstein, New
York, NY, for amicus curiae The American Jewish Committee.
Arthur L. Galub, New York, NY, for amicus curiae University Faculty
Henry Mark: Holzer, Karen Johnson, Brooklyn, NY, for amicus curiae The
Individual Rights Foundation.
McLAUGHLIN, Circuit Judge:
In Jeffries v. Harleston, 21 F.3d 1238 (2d Cir. 1994), we affirmed the
district court's judgment that 15 university officials violated the First
Amendment rights of a professor, Leonard Jeffries, by reducing his term as
a department chairman because of a controversial speech (the "Albany
speech") he had given off campus. Our decision rested on what we
understood to be the applicable rule that the government cannot take
action against an employee for speaking on public issues, unless it first
shows that the speech actually "impaired the efficiency of government
operations." Id. at 1245. We also vacated the part of the judgment that
found six of the defendants liable for punitive damages, as the jury's
special verdict responses were "hopelessly irreconcilable" on whether
these defendants harbored the necessary evil motives. Id. at 1250.
A month after our decision in Jeffries, the United States Supreme Court
decided Waters v. Churchill, 511 U.S. , 114 S. Ct. 1878 (1994) (plurality
opinion). A four-justice plurality in Waters held that the government
could fire an employee for disruptive speech based on its reasonable
belief of what the employee said, regardless of what was actually said.
See Waters, 114 S. Ct. at 1889. In addition, when weighing the value of
the employee's speech against the interference with government operations,
the Waters plurality also indicated that a government employer need only
show that the speech is likely to be disruptive before the speaker may be
punished. See id. at 1887, 1890.
The Jeffries defendants, relying on Waters, petitioned the Supreme
Court for a writ of certiorari. The Supreme Court granted certiorari, and,
without comment, vacated Jeffries and remanded to us for reconsideration
in light of Waters. See Harleston v. Jeffries, 115 S. Ct. 502, 503 (1994)
On remand from the Supreme Court, we reverse the district court's
judgment because defendants made a substantial showing at trial that their
decision to limit Jeffries' term was based upon a reasonable prediction
that the Albany speech would disrupt university operations.
We summarize the facts briefly; a more detailed account appears in our
initial opinion. See Jeffries, 21 F.3d 1238, 1241-44.
Leonard Jeffries was the chairman of the Black Studies department at
City College of New York ("City College"), which is part of the City
University of New York ("CUNY") system. In delivering the Albany speech,
which addressed the bias of New York State's public school curriculum and
the history of black oppression, Jeffries made several derogatory
statements, particularly about Jews. After the speech, City College
President Bernard Harleston and CUNY Chancellor Ann Reynolds arranged for
the CUNY Board of Trustees to vote as to whether to limit Jeffries' term
as department chair to one year, even though such terms normally last
three years. A majority of the 14 members of the CUNY Board of Trustees
voted to limit Jeffries' term. The votes were cast as follows: Nine of the
Trustees voted to limit Jeffries' term to a year; four voted to remove him
immediately; one abstained because she had made critical comments about
Jeffries in the past. Harleston and Reynolds did not vote because they
were not Trustees.
Jeffries sued Harleston, Reynolds, and all 14 of the individual CUNY
trustees under 42 U.S.C. 1983 in the United States District Court for the
Southern District of New York (Kenneth Conboy, Judge), alleging that they
removed him in violation of the First Amendment. (One of the 16 original
defendants, Trustee Blanche Bernstein, died during the trial, and Jeffries
discontinued his claims against her.) Jeffries sought reinstatement and
The jury was given several sets of interrogatories to answer. In
response to the first wave, the jury found that the defendants demoted
Jeffries because of the Albany speech. The jury's answers also indicated
that the Albany speech did not disrupt "the effective and efficient
operation of the Black Studies Department, the College, or the
University," but that the defendants "were motivated in their actions by a
reasonable expectation" that the speech would cause such a disruption. The
judge concluded from these responses that all 15 remaining defendants had
violated Jeffries' First Amendment rights because the speech was
substantially on matters of public concern, and did not cause actual harm
The judge then submitted another wave of questions to the jury to
discern the individual liability of each of the 15 defendants. In
response, the jury found that only six defendants -- Harleston, Reynolds,
and Trustees Edith Everett, Herman Badillo, Sylvia Bloom, and Harold
Jacobs (together, the "Harleston defendants") -- took action against
Jeffries because of the Albany speech, and would not have done so had
Jeffries not given the speech. Of the four Trustees who are Harleston
defendants, three had voted to remove Jeffries from his post immediately,
and one had abstained because of the negative statements she had made
about Jeffries in the past. (The fourth vote to remove Jeffries
immediately came from Trustee Bernstein, who died during the trial, and is
not part of this appeal.) The jury found that the other nine defendants,
all of whom had voted to limit Jeffries' term to one year, did not act
with the same retaliatory animus.
On the third and final wave of interrogatories, the jury found that all
six of the Harleston defendants had "acted with malicious intent to
violate the plaintiff's rights under the First Amendment . . . or with
malicious intent to unlawfully injure him, or . . . with a callous or
reckless disregard of the plaintiff's First Amendment rights." Based on
these findings, the jury awarded punitive damages against the Harleston
After finding that the defendants were not shielded from liability by
qualified immunity, the district judge entered judgment consistent with
the jury responses (although he reduced the punitive damage amounts). In
addition, the judge ordered the defendants to reinstate Jeffries as
chairman of the department for two years. The defendants appealed.
We affirmed the reinstatement order, agreeing with the district court
that the defendants had violated Jeffries' right to free speech, and that
the Harleston defendants were not shielded by qualified immunity. See
Jeffries, 21 F.3d at 1245-49. We found, however, that the jury's special
verdict responses were inconsistent regarding the six Harleston
defendants' liability for punitive damages. Specifically, we could not
reconcile the jury's finding that all 15 of the remaining defendants
demoted Jeffries based on their reasonable belief that the Albany speech
would harm CUNY, with its later finding that the six Harleston defendants
demoted Jeffries out of a malicious desire to violate his free speech
rights, or at least in reckless disregard of these rights. Thus, we
vacated the punitive damage awards against the six Harleston defendants,
and remanded for a new trial against these six on the punitives issue. See
id. at 1249-50.
Upon the defendants' petition, the Supreme Court granted certiorari,
vacated our judgment, and remanded with instructions to reconsider our
opinion in light of Waters. See Harleston, 115 S. Ct. at 503.
One of the principles driving our earlier Jeffries decision I was that
the First Amendment protects a government employee who speaks out on
issues of public interest from censure by his employer unless the speech
actually disrupted the employer's operations. See Jeffries, 21 F.3d at
1245. We expressly held that a mere reasonable belief that the speech
would interfere with the employer's operations is not enough to discipline
an employee, unless the employee holds a high-level, policymaking
position. See id. at 1246-47.
Applying that standard, we studied the Albany speech, and found that it
squarely involved issues of public concern -- namely, the New York state
public school curriculum, and black oppression throughout history. See id.
at 1245-46. Then, after examining CUNY's bylaws, and the testimony of CUNY
officials, we agreed with the district court that the position of Black
Studies Chairman was a ministerial position at CUNY, and carried no
policymaking authority. See id. at 1246-47. Thus, we held that the
defendants bore the burden at trial to show that the speech actually
interfered with CUNY operations. See id. at 1246. Given the jury's finding
that the defendants had failed to make this showing, we held that the
defendants had violated Jeffries' free speech rights. See id. at 1248.
At the time, the strict actual interference requirement reflected the
law of the Second Circuit. See Piesco v. City of New York, 933 F.2d 1149,
1160 (2d Cir.) (if the speech "so clearly touch[es] on matters of public
concern, the government is required to demonstrate interference with the
efficient functioning of the workplace"), cert. denied, 112 S. Ct. 331
(1991); see also Rankin v. McPherson, 483 U.S. 378, 390-91 (1987) (nature
of employee's position determines whether the employee's speech "somehow
undermines the mission of the public employer"). The recent Waters
decision, however, has loosened Piesco's shackles upon public employers.
In Waters, a four-justice plurality held that the government could fire
an employee for disruptive speech based on the government's reasonable
belief of what the employee said, regardless of what was actually said.
See Waters, 114 S. Ct. at 1887, 1889 (O'Connor, J., joined by Rehnlquist,
C.J., Souter and Ginsburg, JJ.). Here, however, there is no dispute as to
what Jeffries actually said in the Albany speech. Accordingly, we need
pursue only that part of Waters dealing with the disruptiveness of the
The Waters plurality reiterated the test of Connick v.
Myers, 461 U.S. 138 (1983), to determine when the First Amendment
protects speech by a government employee:
To be protected, the speech must be on a matter of public concern, and
the employee's interest in expressing herself on this matter must not be
outweighed by any injury the speech could cause to the "'interest of the
State, as an employer, in promoting the efficiency of the public services
it performs through its employees."'
114 S.Ct at 1884 (quoting Connick, 461 U.S. at 142 (quoting Pickering v.
Board of Ed. of Township High School Dist., 391 U.S. 563, 568 (1968))).
The plurality then explained that, in applying this test, the extent of
the injury caused by the employee's speech need not be actual; rather, the
government's burden is just to show that the speech threatened to
interfere with government operations. See id. at 1887, 1890. It emphasized
that greater deference must be given to the government when it acts as
employer rather than as sovereign:
[W]e have given substantial weight to government employers' reasonable
predictions of disruption. even when the speech involved is on a matter of
public concern, and even though when the government is acting as sovereign
our review of legislative predictions of harm is considerably less
[A] government employee, like any citizen, may have a strong,
legitimate interest in speaking out on public matters. In many such
situations the government may have to make a substantial showing that the
speech is, in fact, likely to be disruptive before it may be punished.
Id. at 1887 (emphasis added); see also United States v.
Treasury Employees Union, 115 S. Ct. 1003, 1018 n.21 (1995) (quoting
Waters to reaffirm that deference is given to government's reasonable
predictions of harm when used to justify the punishment of isolated
incidents of employee speech).
We read the Waters plurality opinion to hold that the closer the
employee's speech reflects on matters of public concern, the greater must
be the employer's showing that the speech is likely to be disruptive
before it may be punished. See Treasury Employees Union, 115 S. Ct. at
1021 (O'Connor, J., concurring in part, dissenting in part) ("As the
magnitude of intrusion on employees' interests rises, so does the
Government's burden of justification."). There is, thus, a proportion
between the nature of the speech and the nature of the sanction that may
ensue. Nevertheless, even when the speech is squarely on public issues, --
and thus earns the greatest constitutional protection -- Waters indicates
that the government's burden is to make a substantial showing of likely
interference and not an actual disruption. 114 S. Ct. at 1887.
Whittled to its core, Waters permits a government employer to fire an
employee for speaking on a matter of public concern if: (1) the employer's
prediction of disruption is reasonable; (2) the potential disruptiveness
is enough to outweigh the value of the speech; and (3) the employer took
action against the employee based on this disruption and not in
retaliation for the speech. See Waters, 114 S. Ct. at 1887, 1889-91. By
stressing that actual disruption is not required, Waters pulls a crucial
support column out from under our earlier Jeffries opinion. We are now
constrained to hold under Waters that the defendants did not violate
Jeffries' free speech rights if: (1) it was reasonable for them to believe
that the Albany speech would disrupt CUNY operations; (2) the potential
interference with CUNY operations outweighed the First Amendment: value of
the Albany speech; and (3) they demoted Jeffries because they feared the
ramifications for CUNY, or, at least, for reasons wholly unrelated to the
In the district court, the Jury's central finding was that all 15
defendants were "motivated" to demote Jeffries by a "reasonable
expectation" that the Albany speech would harm CUNY. This jury finding
establishes that because the defendants were motivated by a reasonable
prediction of disruption, they did not demote him for an improper
retaliatory motive. Moreover, we hold that, as a matter of law, this
potential disruptiveness was enough to outweigh whatever First Amendment
value the Albany speech might have had. Under Waters, then, the jury's
finding, if it stood alone, would suffice to show that none of the
defendants violated Jeffries' free speech rights.
This finding does not stand alone, however. In response to later waves
of interrogatories, the jury found that the six Harleston defendants (but -
- significantly -- not the other nine) demoted Jeffries because of the
Albany speech, and that they would not have done so if Jeffries had not
given the speech. The jury then decided that the six Harleston defendants
"acted with malicious intent to violate the plaintiff's rights First
These later findings are tantamount to a determination that the six
Harleston defendants demoted Jeffries in retaliation for his speech, and
not to protect CUNY from the ramifications of his speech. See Rankin, 483
U.S. at 384 ("Vigilance is necessary to ensure that public employers do
not use authority over employees to silence discourse, not because it
hampers public functions but simply because superiors disagree with the
content of employees' speech.").
As we said in the original Jeffries opinion, we cannot harmonize the
jury's earlier finding with the later ones. See Jeffries, 21 F.3d at 1250.
If, as the first finding has it, all the defendants demoted Jeffries
because they reasonably believed the speech would harm CUNY, the demotion
was not retaliatory. If, as the later findings have it, six of the
defendants acted against Jeffries out of malice or reckless disregard for
his rights, those six were not motivated by a reasonable belief that the
speech would harm CUNY. As to these six defendants, these findings are
"hopelessly irreconcilable," id., and would ordinarily require a remand
for a new trial. See Brooks v. Brattleboro Mem. Hosp., 958 F.2d 525, 529-
30 (2d Cir. 1992) (remand required where material jury responses cannot be
read together rationally).
No retrial is needed here, however, because elementary principles of
causation compel the conclusion that Jeffries' First Amendment rights were
not violated. See 42 U.S.C. 1983 (section 1983 relief only available if
the plaintiff was deprived of federal rights). The jury found that at
least nine of the defendants, a clear majority, limited Jeffries' term
because they expected his speech would harm CUNY (and not for invidious
motives), and that this expectation was reasonable.
There is, moreover, no reasonable possibility that the six Harleston
defendants tainted the vote with whatever retaliatory motives they may
have had. Three of the six Harleston defendants voted against the proposal
to limit Jeffries' term to one year; two of them were not Trustees, and
thus could not vote; and one abstained. While Harleston and Reynolds were
instrumental in putting the one-term issue on the Board's agenda, see id.
at 1247, and may indeed have done so to punish Jeffries, the nine votes
based on legitimate grounds constitute a superseding cause breaking the
causal chain between the tainted motives (of Harleston and Reynolds) and
the decision to limit Jeffries' term. See Gutierrez-Rodriguez v.
Cartagena, 882 F.2d 553, 561 (1st Cir. 1989) (superseding causes relieve
defend,ants of section 1983 liability). And, to whatever extent any of the
Harleston defendants inveighed against Jeffries and his speech at the
Board meetings, the jury expressly found that these lamentations did not
affect the nine Trustee defendants who based their votes on a reasonable
expectation of harm. Thus, the motives of the Harleston defendants --
whatever they were -- did not cause a cognizable injury to Jeffries.
Finally, we note that an amicus curiae argues that we should not apply
Waters at all because Jeffries, as a faculty member in a public
university, deserves greater protection from state interference with his
speech than did the nurse in Waters who complained about the obstetrics
division of the hospital. We recognize that academic freedom is an
important First Amendment concern. See. e.g. Keyishian v. Board of
Regents, 385 U.S. 589. 603 (1967) ("The vigilant protection of
constitutional freedoms is nowhere more vital than in the community of
American schools."). Jeffries' academic freedom, however, has not been
infringed here. As we held in the earlier Jeffries, and as Jeffries
himself has argued, the position of department chair at CUNY is
ministerial, and provides no greater public contact than an ordinary
professorship. See Jeffries, 21 F.3d at 1247. Jeffries is still a tenured
professor at CUNY, and the defendants have not sought to silence him, or
otherwise limit his access to the "marketplace of ideas" in the classroom.
See Keyishian, 385 U.S. at 603.
Because the only defendants who voted in favor of limiting Jeffries'
term did so constitutionally, and because the Harleston defendants did not
contribute to the decision to limit Jeffries' term, we conclude that
Jeffries has not suffered a deprivation of his constitutional rights.
We reverse the judgment of the district court, and remand with
instructions to enter judgment for the defendants.
REVERSED and REMANDED with instructions to enter judgment for the
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