Moore et al v. Pogue et al
Filing
104
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 3/13/2012: Mailed notice(etv, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GERIAN STEVEN MOORE, and
GEORGE PROVIDENCE II,
Plaintiffs,
v.
WAYNE WATSON, President of Chicago
State University, and ERMA BROOKS
WILLIAMS, Associate to President for
Communications and External Relations,
in their official capacities
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 09 C 0701
Hon. Rebecca R. Pallmeyer
MEMORANDUM OPNION AND ORDER
This suit was brought to challenge the alleged efforts of administrators at Chicago State
University to control the content of Tempo, the University’s student newspaper. Plaintiffs are
George Providence II, the former student editor of the newspaper, and Dr. Gerian Steven Moore,
who acted as faculty advisor for the paper until October 2008, when he was terminated from his
position in the University’s public relations office. Providence and Moore claim that the University
terminated Moore in retaliation for a series of news stories critical of University administration and
then took action to undermine the newspaper’s publication and cause its ultimate demise.
Specifically, Plaintiffs allege that officials required Providence to submit newspaper copy for prepublication review, delayed the paper’s publication, imposed restrictions on interviews with
University staff, withdrew funding for the paper, and locked Providence out of the newspaper office.
Publication of Tempo ended after Spring 2009, when Providence withdrew from the University. In
this lawsuit, tried to the bench in April 2011, Plaintiffs assert claims under the First Amendment and
the Illinois College Campus Press Act, 110 ILCS 13/1 et seq.,1 against Defendants, administrators
of the University named in their official capacities, seeking declaratory and injunctive relief.2
As explained below, the court concludes that Plaintiffs have proven their case in part and
grants limited relief. The court directs that Plaintiff Moore be reinstated and that Defendants purge
any negative references in his personnel records. Plaintiffs’ request for additional declaratory and
equitable relief is denied.
FACTUAL FINDINGS3
I.
Parties
Plaintiff Gerian Steven Moore is a former employee of Chicago State University (“the
University” or “CSU”), a state educational institution located on Chicago’s south side. (UF ¶ 4.)
Moore earned his Ph.D. in American Culture at the University of Michigan and had taught at several
1
In its opinion on summary judgment, the court suggested that Plaintiffs have not
sought relief under the state law itself. See Moore v. Watson, 738 F. Supp. 2d 817, 827 n.9, 834
(N.D. Ill. 2010). The parties have made no further mention of this issue, but the court recognizes
this was not accurate. Though Plaintiffs did not specifically allege violations of the Illinois statute
in the prayer for relief at the end of their complaint, they did invoke the statute at the outset,
alleging that relief was “also sought under the Illinois College Campus Press Act.” (Pls.’ Compl.
¶ 1.) The court reads Plaintiffs’ complaint liberally. As the Seventh Circuit has explained, even
after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009), “plaintiffs in federal courts are not required to plead legal theories.” Hatmaker v. Mem’l
Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Moreover, both sides have assumed throughout this
litigation that Plaintiffs raise claims under both the First Amendment and Illinois law.
2
On September 7, 2010, this court issued an order granting Defendants’ motion for
summary judgment on Plaintiff Moore’s monetary damages claim for backpay. The court ruled that
the College Campus Press Act, 110 ILCS 13/20, did not waive the state’s immunity from suits for
monetary damage. Moore, 738 F. Supp. 2d at 834-35. Furthermore, the claim for backpay was
inappropriate against Defendants, sued in their official capacity, under federal law. See
Omosegbon v. Wells, 335 F.3d 668, 672-73 (7th Cir. 2003) (holding that a terminated professor
could not bring a claim for backpay under 42 U.S.C. § 1983 for First Amendment violations against
defendants, officials of Indiana State University, in their official capacities).
3
The court presents findings of fact and conclusions of law pursuant to FED . R. CIV .
P. 52(a). Except where noted otherwise, facts are drawn from the pretrial order and from evidence
presented at trial. The parties’ Statement of Uncontested Facts, Schedule A to Final Pretrial Order,
is cited here as “UF ¶ ___.” The court cites the trial transcript as “Trial Tr. at ___.” The parties’ trial
exhibits are cited as “Pls.’ Ex. ___” and “Defs.’ Ex. ___.”
2
other colleges before coming to CSU. (Moore CV, Pls.’ Ex. 1.) Then-CSU President Dr. Elnora
Daniel hired Moore as a lecturer in the Department of African American Studies for the Fall 2007
semester. (Letter from Daniel to Moore of 5/31/2007, Pls.’ Ex. 2.) Due to low registration,
however, the University canceled the class Moore was scheduled to teach, and President Daniel
reassigned him to a position as Special Assistant to the President. In that capacity, Moore was
responsible, among other projects, to re-establish Tempo, the then-inactive student newspaper.
(Trial Tr. at 92-93.) Moore reported to Daniel directly until December 26, 2007, when Daniel
appointed Moore to the position of Executive Director for Communications. In that capacity, Moore
reported directly to Dr. Beverly M. John, Interim Vice President for Administrative Services and
Enrollment Management. (Letter from Daniel to Moore of 12/26/2007, Pls.’ Ex. 12.) Moore signed
a one-year employment contract on January 17, 2008. (Defs.’ Ex. 5.) In September 2008, as
explained below, Moore was reassigned to report to Patricia Arnold, Executive Director of
University Relations. (UF ¶¶ 5, 14.)
Plaintiff George Providence II was, at age forty-eight, an unconventional college sophomore
at CSU who had previously attended several other colleges, including Oakton Community College,
where he had served as editor of that college’s student newspaper. (Trial Tr. at 175-76.) In March
2008, when Tempo resumed operations, Providence became a columnist for the paper, but within
a few weeks, he was elevated to editor-in-chief. (Id. at 178-79; UF ¶ 11.) Providence served in
that capacity until the spring semester of 2009, when he resigned as editor and withdrew from the
University. Providence currently owes CSU an outstanding tuition debt (Trial Tr. at 361), but is
otherwise free to return to campus as a student.4
4
On summary judgment, Defendants argued that Providence lacked standing and
that his claims were moot in light of his absence from CSU beginning in the fall semester of 2009.
The court overruled those challenges. The court observed that the alleged deprivation of his
chosen forum for expression is an actual injury under the First Amendment for which Providence
(continued...)
3
Defendant Dr. Wayne Watson is the President of CSU, and Defendant Erma Brooks
Williams is the chief public relations officer at the University. Both Watson and Williams assumed
their positions after the relevant events in this case occurred. Upon Plaintiff’s motion, they were
substituted as Defendants in place of their predecessors, Interim President Dr. Frank G. Pogue and
Executive Director of University Relations Patricia Arnold. (Minute Entry [34].) Pogue replaced
President Daniel after a well-publicized scandal involving the misappropriation of school funds
reportedly forced her resignation in June 2008. See Improper Spending at School, Audit Says, CHI.
TRIB ., May 16, 2008, at Metro 3; Jodi S. Cohen, Fractured Chicago State Picks Interim Chief, CHI.
TRIB ., May 8, 2008, at Metro 3 . CSU hired Patricia Arnold in August 2008 to manage marketing
and public relations matters as Director of University Relations. (Trial Tr. at 14-15.)5 Before
arriving at CSU, Arnold had a career as a public relations consultant, having worked earlier as a
broadcast journalist at KSTP TV in Minneapolis and then for ABC 7 Chicago. (Id. at 13-14.) After
a month at CSU, she was promoted to Executive Director of University Relations, becoming
Moore’s direct supervisor. (Id. at 15-16.) The date of, or reasons for Arnold’s departure from the
University are not in the record.
II.
Tempo
Until it ceased publication in April 2009, Tempo was the official student newspaper of
Chicago State University. The newspaper has been published only sporadically over the course
4
(...continued)
has standing to sue. Moore, 738 F. Supp. 2d at 828. Further, Providence had expressed interest
in resuming his studies and his position with the newspaper, and because he alleges that he
withdrew from CSU because of the harassment challenged in this lawsuit, the court concluded his
claims are not moot. Id. at 829. The court declines Defendants’ invitation to reconsider that
decision.
5
Arnold explained that she was hired by Katey Assem, Interim Vice President for
Institutional Advancement, who became Arnold’s direct supervisor. (Arnold Dep., Ex. E to Defs.’
Statement of Facts in Supp. of Their Mot. for Summ. J. (hereinafter “Defs.’ 56.1"), at 7; Trial Tr. at
81-82.)
4
of its history, and not at all during 2006 and 2007. (Pls.’ Statement of Undisputed Material Facts
in Supp. of Mot. for Summ. J. (hereinafter “Pls.’ 56.1") ¶ 10.) The record does not reveal why
Tempo ceased publication in 2006, but in 2007, the University made a concerted effort to reestablish Tempo after an accreditation association commented unfavorably on the absence of a
student-run newspaper at the University. (Trial Tr. at 93-94.)
After President Daniel charged Moore with re-establishing the paper, Moore issued a
memorandum entitled “The Way Forward: Re-establishing the College Newspaper at Chicago
State University.” (Memorandum, Pls.’ Ex. 5.) Moore’s memorandum presented a series of
recommendations based upon Moore’s research into the successes and failures of college
newspapers at historically black colleges and inquiries Moore made with other college newspapers
in Illinois. (Trial Tr. at 96-97.) These recommendations included proposals for establishment of
an advisory committee and the hiring of a full-time business manager. (Pls.’ Ex. 5, at 2-3.) In the
memorandum, Moore also cautioned against requiring students to submit the paper to a college
administrator for prior review, noting that the Illinois legislature had recently passed the College
Campus Press Act, designating student-run college newspapers as public forums. (Id. at 9-10.)
The memorandum was well received by administrators at the University, including President
Daniel, who gave Moore the go-ahead to re-establish Tempo. (Trial Tr. at 99.) As recommended
in the memorandum, in January 2008 the University hired Timothy Edwards as Tempo’s business
manager, responsible for administrative aspects of the paper such as distribution, advertisement,
and expenses. (Id. at 332-33.) In March 2008, Tempo resumed regular operations as a weekly
newspaper and, within a few weeks, Providence became editor-in-chief.
Once Tempo resumed operations, Moore served as faculty advisor. As Moore had
proposed in his memorandum on re-establishing Tempo, the faculty advisor’s role was to advise
the students on proper journalistic process and protocol. (Pls.’ Ex. 5, at 11.) Specifically, his
memo described the faculty advisor’s role as “safeguard[ing] the journalistic integrity of the
5
newspaper” by “making sure that proper journalistic protocols are followed in gathering and
reporting of the news.” (Id.) To that end, Moore distributed to the Tempo staff copies of “The News
Writer’s Handbook,” obtained from the website for the Journalism Education Association and
adopted by Moore for Tempo’s purposes with permission from the author. (Trial Tr. at 101-03.)
Moore also arranged to have Tempo staff meet with staff members of The Chicago Maroon, the
University of Chicago’s independent student newspaper, to learn about newspaper layout and
formatting. (Id. at 121.) In his memorandum, Moore was careful, however, to note that a faculty
advisor was “not charged with the responsibility of reporting, editing copy, or determining what
stories are actually published in the paper. As with any newspaper, the editorial policy of the
student newspaper is independent of its day-to-day administration and management.” (Pls.’ Ex. 5,
at 11.)
Consistent with this understanding of a faculty advisor’s role, Moore never asked
Providence to provide him a draft of an issue before it was published, although Moore and
Providence did often discuss article ideas that Providence was considering for Providence’s own
column. (Trial Tr. at 191-92, 194.) Instead, Moore met with Providence each week after that
week’s issue was published to review the issue, page by page, and discuss mistakes and areas
for improvement. (Id. at 192-93.)
During the spring semester of 2008, Providence and his staff published a number of articles
that were critical of the University and its administration, including Moore’s direct supervisor at the
time, Interim Vice President Beverly John. On April 10, 2008, for example, Tempo ran an article
criticizing CSU’s athletic department for delays in distributing scholarship funds to student athletes.
(Tempo, Apr. 10, 2008, Pls.’ Ex. 16, at 1.) The article quoted John, who in response to questions
about why President Daniel failed to meet with the complaining student-athletes, reportedly stated,
“[T]he students have to understand that there is a protocol and process in place. They must meet
with their coaches, then the athletic director and so on before coming to the administration.” (Pls.’
Ex. 16.) The next week, Tempo ran a story on the arrest of CSU’s head baseball coach for
6
allegedly assaulting a team member. (Tempo, May 8, 2008, Pls.’ Ex. 17, at 1.) In an editorial
written by Providence several weeks later, Providence insinuated that the Board of Trustees should
fire John for scandals that included problems in the athletic department. (Tempo, May 8, 2008,
Pls.’ Ex. 20, at 2.)6 In the last issue of the spring semester of 2008, Tempo published yet another
controversial article, quoting the University’s Financial Aid Director as having made derogatory and
racially-charged statements about the CSU student body.7 When asked for comment, the article
quotes John as stating:
I know you think that you have unearthed something that is damaging to this
university, and I will not assist you in furthering it along. You shalln’t [sic] get a
comment from me. The job of the journalist is to search for the spectacular, and I
know that that is what you are trying to do. . . . You need to search your soul as a
journalist and as a human being, about what your motivations are for doing this kind
of story.
(Tempo, May 15, 2008, Pls.’ Ex. 21, at 1.)
In the wake of this last article, Robyn Wheeler, Director for Media and University Relations,
called Moore on May 16, 2008, to suggest “instituting a policy to require administrators to go
through a screening process before they would talk to student journalists.” (Trial Tr. at 146.) In
response to this proposal, Moore sent a memorandum to Dr. Sandra Westbrooks, Provost and Vice
6
In addition to any news articles that Providence wrote for the paper, as editor he
published an editorial column entitled, “Yeah. I Said It.” He also regularly published an editorial
column entitled “The 3: Interrogatives Requiring a Response,” in which he asked a series of
insinuating or rhetorical questions, often targeted at perceived problems with CSU administration.
On occasion, Providence solicited the CSU community to submit questions for “The 3.” (Tempo,
October 9, 2008, Pls.’ Ex. 31, at 2.)
7
Tempo reported that during an interview with a Tempo staff reporter, the Director
lambasted members of the student body for succumbing to what she believes are
a variety of cultural ills that have slowed the success of the university’s mostly black
population. Citing black students’ failure to read, along with frequent pregnancies
and so-called ghetto behavior, [the Director] also used choice words to describe
white students. While praising them for being more astute than their black
counterparts she further described them as “dirtier than any other” group of people.
(Tempo, May 15, 2008, Pls.’ Ex. 21, at 1.)
7
President of Student and Academic Affairs,8 in which Moore cautioned against “requiring student
reporters to get approval before interviewing members of the University administration” because
he believed limiting student reporters’ access to administrators would be perceived as limiting press
freedom. (Memorandum, Pls.’ Ex. 22.) Moore testified that to his knowledge, Wheeler decided
against adopting such a policy. (Trial Tr. at 141.)
Some time between late August and early September 2008, Moore sought to carry out
another of the recommendations he had set forth in his memorandum: establishing an advisory
board for Tempo. Moore invited Linda Simpson, a subordinate within his department, and Patricia
Arnold, who had recently been hired by Interim Present Pogue, to join the board because both
Simpson and Arnold had journalism experience. (Id. at 146.) In addition to “help[ing] improve the
paper, provid[ing] guidance to the student editors and the editorial board and . . . tak[ing] some of
the pressure off [him],” Moore hoped the advisory board would help dispel “rumors that were
floating around the campus that [he] was the one instigating the articles that were critical of the
university.” (Id.)
As a member of the advisory board, Arnold offered to edit each issue before it went to print
in order to correct the many grammatical and spelling errors that plagued the newspaper.9
According to Moore, when Arnold first raised the issue in an advisory board meeting,10 Moore
attempted to explain that public university administrators lack authority to review the paper prior to
publication and that review by such administrators generally occurred after publication, as had
8
The court infers that as a student-run organization, Tempo fell within the institutional
jurisdiction of Westbrooks’s office.
9
The court’s own review confirms that Tempo issues were riddled with frequent and
egregious spelling and grammatical errors, including for example, “Octoberr” and “Feburary” in the
date line.
10
It is not clear from the record whether this meeting occurred before or after Arnold
was assigned as Moore’s supervisor.
8
been his practice in advising Providence. (Id. at 151.) According to Moore, reviewing issues after
they were published did not make sense to Arnold. (Id.) After Moore relayed Arnold’s prepublication review offer to Providence, Providence responded directly, explaining in an e-mail
message to Arnold on September 24, 2008, that while he could not acquiesce to a request “to
review upcoming issues of Tempo prior to their publication,” he asked the advisory board to
“commit to going over each issue of Tempo and marking it up with respect to its shortcoming and
deficiencies.” (E-mail, Pls.’ Ex. 23.) In an e-mail reply sent the next day, Arnold wrote that she was
not sure how marking up issues after publication would be useful. (Id.) She asked, “If you misspell
words, for example, how would remarks on an old issue address those errors, unless you’re using
the same words in subsequent issues? Ditto for syntax, punctuation.” (Id.) She also questioned
whether inexperienced student editors were capable of proofreading the paper. (Id.) Arnold
concluded that proofreading the paper after publication was not a productive use of her time. (Id.)
Several days later, Arnold followed up with an e-mail message dated October 6, 2008, in which she
explained that she would no longer serve on the advisory board “since advisory board members
are not allowed to point out spelling and grammar errors and violations of journalistic standards
prior to publication.” (E-mail, Pls.’ Ex. 30.)
III.
Moore’s Termination
By the end of the 2008 spring semester, Moore’s relationship with Interim Vice President
John had deteriorated as a result of Tempo’s reporting. (Trial Tr. at 127-28.) At the beginning of
September 2008, Moore and Linda Simpson asked Interim President Pogue for a different reporting
line because of the mounting tension. (Id. at 167-68; Moore Dep., Ex. F to Defs.’ 56.1, at 149-151.)
Pogue granted their request and Moore was reassigned to report to Katey Assem, Patricia Arnold’s
supervisor. (More Dep. at 151.) Shortly thereafter, Patricia Arnold, whom Pogue promoted to
9
Executive Director for University Relations in an administrative reorganization, became Moore’s
direct supervisor on approximately September 14th or 15th. (UF ¶ 5, 14; Trial Tr. at 147.)
In late September 2008, Arnold asked Moore to prepare two press releases on behalf of
the University. Arnold explained that she needed assistance from her staff in writing press releases
because she had been charged by Pogue to issue five press releases per week. (Trial Tr. at 39293.) She chose to assign release writing to Moore after he disclosed, in response to a “capabilities
survey,” that he had ten years’ experience in news releases. (Id. at 397; Defs.’ Ex. 9.) Moore
delivered the first press release to Arnold via e-mail on September 25, 2008, and the second on
September 30. (Defs.’ Exs. 7, 8.) Arnold found both of these submissions unsatisfactory. (Trial
Tr. at 399.) Arnold testified that Moore’s press releases were deficient because they lacked a
headline, lacked a release date, and lacked hash marks signifying where the release ended. (Id.)
Additionally, one of the press releases covered the wrong event; Arnold claims she asked Moore
to write a press release about the dedication of the new Convocation Center coming up on
October 7, 2008, but Moore instead prepared a press release about the convocation ceremony at
the start of the new semester that had occurred at the Convocation Center on September 10,
twenty days earlier. (Id. at 398; Defs.’ Ex. 7.) Moore claims that Arnold never explained to him that
she needed final drafts for the press releases, so he prepared only rough drafts. (Trial Tr. 149-50.)
Arnold concedes she never informed Moore about her dissatisfaction with the quality of his work.
(Id. at 399-400.)
On September 29, 2008, Interim Vice President Beverly John sent Arnold a transition
memorandum, ostensibly to provide Arnold with some “insight” concerning the staff members who
had been transferred to Arnold’s supervision. (Transition Memo, Pls.’ Ex. 27.) John’s memo was
critical of Moore’s credibility and performance, particularly regarding his work with Tempo.
Specifically, John accused Moore of “buil[ding] a tenor of dishonesty and deceit” at the University.
(Id.) “I firmly believe that[ ] Moore is behind the negative tenor of the student newspaper,” John
10
wrote. (Id.) She further accused Moore and Providence of “soliciting non-TEMPO staff to
encourage employees to speak with the paper since many have come to link Moore with the
negative stories.” (Id.) At trial, Arnold confirmed her deposition testimony that sometime at the end
of September or the first week of October, she received the memo in interoffice mail and contacted
John to discuss it. (Trial Tr. at 32.)
On October 6, 2008, Arnold sent an e-mail message to Moore, Providence, and Linda
Simpson, notifying them that she had “just learned inadvertently that it is a conflict of interest for
this department’s staff members to serve as advisers to student media because, as the College
Media Advisers’ Code of Ethics states: ‘The publicity interests of the university and the news goals
of the student media are often incompatible.’” (E-mail, Pls.’ Ex. 30.)11 Arnold concluded specifically
that it was a conflict of interest for Moore, as the “University’s Director of External Relations” to
continue to serve as Tempo’s adviser.12 Arnold testified that she had come across the College
Media Advisers’ website while searching for information on prior review during her previous e-mail
exchange on that subject with Moore and Providence. (Trial Tr. at 412.) Arnold asked for a list of
eligible faculty member replacements within two days because, she explained, she wanted a new
adviser installed no later than October 15. (E-mail, Pls.’ Ex. 30.) Arnold also asked Moore “to
remain as interim adviser[ ] until a faculty or staff member from another department assumes that
role permanently.” (Id.)
11
This was the same e-mail message, described earlier, in which Arnold indicated that
she would no longer serve on the advisory board. Notably, Arnold did not mention her role as head
of the University’s public relations department as a reason why she herself would not serve on the
advisory board.
12
Moore’s actual title was Executive Director for Communications. (Pls.’ Ex. 11.)
Interim Vice President Beverly John also misstated Moore’s title in her transition memo, referring
to Moore there as Executive Director of Internal Affairs & Events Management. (Transition Memo,
Pls.’ Ex. 27.) The court infers that the confusion about titles was a result of the upheaval within the
University’s administration following President Daniel’s departure and Interim President Pogue’s
arrival.
11
On October 9, 2008, Tempo published the first part of a two-part article, entitled Smoke and
Mirrors, which questioned discrepancies in the funding of a fashion show hosted by a student-run
modeling organization the prior semester. The show featured performances by DJs from a local
radio station and an R&B singer. (Tempo, Oct. 9, 2008, Pls.’ Ex. 37, at 1.) According to the
articles, the student organization was the first to host an event at the newly built Convocation
Center, which took place, coincidently, on the day the Chicago Tribune ran a story on financial
irregularities at the University. (Id.; Tempo, Oct. 16, 2008, Pls.’ Ex. 38, at 1.)13 The Tempo article
reported that a former member of the organization questioned how the organization, which
reportedly started the school year with $1500, had acquired the funds necessary to host an event
estimated to cost approximately $22,000.
Arnold and Moore discussed the first article the day it was published, October 9, 2008, in
Arnold’s office. (Trial Tr. at 159-60.)14 According to Moore, the first statement Arnold made upon
his arrival in her office was that “George is out of control. He needs to be stopped. He is hurting
people.” (Id.) Moore also testified that Arnold told him that she felt that the article was libelous and
that the University might be subject to suit. (Id.) In response, Moore contends, Moore told Arnold,
“George can be difficult at times . . . but as to the story itself, whether or not he . . . had a right to
publish that[,] I said it’s a legitimate question. I said the discrepancies between the reported $1500
that the student organization had on hand and the estimated cost of $22,000 of the event, I said
that’s a huge discrepancy, which poses a legitimate journalistic question.” (Id. at 160-61.) Moore
recalls that Arnold, in reply, told him that the funding of the event “was a private matter, that there
were donors that supported the event, and that they had a right to remain private and that it was
13
The articles do not report the date of the event, but the court infers from the date
of the referenced Chicago Tribune article that the event occurred on April 25, 2008. See Chicago
State Burned Again, CHI. TRIB ., April 25, 2008, at 24.
14
The paper was published weekly on Thursdays. (Id. at 161-62, 192.)
12
none of George’s business.” (Id. at 161.) At one point at trial, Arnold denied having met with
Moore to discuss the article (Id. at 435), but the court credit’s Moore’s version. Arnold’s denial is
inconsistent with (a) an affidavit she signed, in which she recalled Moore asking her about the
article (Arnold Aff. ¶ 3, Ex. B. to Defs.’ Answer to Pls.’ 56.1), and (b) her own earlier trial testimony
in which she admitted having a conversation with Moore in which she commented on “how
unconscionable [the article] was,” but denied saying anything about Providence. (Trial Tr. at 422.)
Moore characterized Arnold’s demeanor during the conversation as “either angry or extremely
frustrated.” (Id. at 161.) Indeed, Arnold herself testified that she was “outside [her] body with rage”
upon reading the article. (Id. at 421.)
The next day—Friday, October 10, 2008—Arnold sent a letter to Interim President Pogue
recommending Moore’s termination, “effective immediately.”
(Letter, Pls.’ Ex. 34.)
Arnold
explained that the “University Relations department requires a public relations professional in the
position of Executive Director of External Relations” and that Moore did not “have the required skill
set or experience in the field.” (Id.) Arnold testified that she based her stated conclusions upon
Moore’s unsatisfactory performance writing the two press releases. (Trial Tr. at 65.) Arnold denies
that her decision to terminate Moore had anything to do with his role as advisor to Tempo. (Id.)
Arnold also testified that prior to this letter, she had conferred with her immediate superior, Katey
Assem, about her need for a public relations professional and the prospect of transferring Moore
to a different department. (Id. at 402.) According to Arnold, Assem informed her that Interim
President Pogue recommended that the University hire Brian Pitzer, the public relations director
at Edinboro University, where Pogue had previously served as a college president. (Id. at 403.)15
15
The record does not reveal when Arnold approached Assem, nor does the record
show who hired Pitzer, when that decision was made, or when Pitzer agreed to take the position.
Arnold testified that Pitzer began working at CSU on October 13, 2008. If this is true, then surely
Pitzer was hired before October 10, 2008, when Arnold recommended Moore’s termination.
13
Arnold further testified that she decided to recommend Moore’s termination after the director of
human resources informed her that he “couldn’t think of anyplace else to put [Moore].” (Id. at 408.)
In a letter dated October 13, 2008, Pogue notified Moore of his termination, effective
immediately.
(Letter, Pls.’ Ex. 35.)
There is no evidence that Pogue took any steps to
independently review or investigate Arnold’s decision, and the timing suggests he did not: Arnold
recommended Moore’s termination on Friday and Pogue terminated Moore the following Monday.
Pogue’s letter explained that Moore was relieved of his duties at the University immediately and,
though he would continue to receive his full salary until the expiration of his contract on December
31, 2008, his contract would not be renewed for the following year. (Id.) Pogue sent copies of his
letter to Arnold and to the Director of Human Resources, Kevin Morris, and advised Moore to direct
any questions about the decision to Arnold. (Id.)
IV.
University Conflict with Providence and Tempo
At about the time of Moore’s termination, Providence began clashing with Arnold over the
newspaper’s access to interviews with University staff. Providence contends that Arnold instituted
a protocol requiring Providence to seek Arnold’s approval before interviewing University staff or
people associated with student organizations funded by the University. (Trial Tr. at 225.) Arnold
insists that she merely requested that Tempo abide by the same protocols that she imposed on
every other news outlet. (Id. at 417-18.) Specifically, Arnold asked that Tempo and other news
outlets alert her office “as a courtesy” before they interviewed University employees. According
to Arnold, she inferred from a notebook of reporter requests kept by her predecessor that
representatives of the press came to the University’s public relations department first before they
contacted University employees. (Id. at 49.) As discussed above, however, while Arnold’s
predecessor, Robyn Wheeler, had discussed requiring Tempo to obtain approval before
14
interviewing University personnel, there is no evidence that such policy had been previously
adopted.
The issue came to a head during Providence’s investigation for the Smoke and Mirrors
articles. Providence testified that he and another Tempo reporter conducted two interviews with
the leader of the student organization that had sponsored the fashion show, but then, after the
student spoke with the organization’s faculty adviser, the student refused to answer questions
about the organization’s finances at a third interview unless Providence first went through Arnold.
(Id. at 215-16.) According to Providence, it was at this point that Arnold informed him of the
protocol for alerting the public relations department about interviews with University staff. (Id. at
216.) In an attempt to comply with the protocol, Providence sent Arnold a series of questions
concerning the event’s funding in an e-mail message dated September 28, 2008, and requested
that Arnold arrange an interview with the student leader and faculty advisor. (E-mail, Pls.’ Ex. 26.)
In an e-mail reply, Arnold informed Providence that she would “submit the questions and find out
what’s more convenient for them.” (Id.) Providence testified that he was unable to conduct the
requested interview after that exchange. (Trial Tr. at 216.) Similarly, on October 8, 2008,
Providence addressed questions for the University’s chief of police to Arnold when the chief refused
to answer questions about the cost of providing security for the fashion show without clearance
from Arnold. (Id. at 317; E-mail, Pls.’ Ex. 32.)
On October 15 and 16, 2008, Arnold and Providence exchanged a series of e-mails in
which they discussed Providence’s request that the University make an exception to the protocol
for Tempo. (Pls. Ex. 37.) On October 15, 2008, Providence sent an e-mail message to Arnold and
Interim President Pogue in which Providence objected to “the university’s protocol of requiring
Tempo reporters [to] first interact with University Relations before being able to speak to CSU
faculty, staff, and leaders of student organizations,” criticizing the protocol as “incredibly
cumbersome” and as “an attempt at censorship.” (Id.) Providence stated that he had discussed
15
the issue with the Associated Collegiate Press and the Student Press Law Center, and that he
planned to make “open document” requests if the University did not reverse the protocol. (Id.)
Arnold responded that the protocol was simply a “courtesy,” that it applied to all news outlets, that
she never told University staff not to speak with Tempo reporters, and that her office did not “filter
the request or the response to the request.” (Id.) In fact, the record shows that although the
protocol nominally applied to all news outlets, Arnold focused on Tempo, and used the policy as
a tool to at least monitor, if not control, Tempo’s news gathering. For example, when asked who
instituted the protocol, Arnold testified, “The protocol actually was in place before I arrived, but
there was a heightened sense, particularly with Tempo, to have that protocol instituted.” (Trial Tr.
at 48.) Furthermore, Arnold explained the need for the protocol by testifying, “There was an issue
on campus. People did not want to pick up the phone and have someone from Tempo on the other
end.” (Id. at 418.) The court concludes that the protocol implemented by Arnold was directed
specifically to Tempo in the same manner as the policy that had been proposed, but not
implemented, by Robyn Wheeler.
On October 30, 2008, Arnold sent Tempo a letter to the editor, signed by a number of highlevel University administrators. (E-mail, Pls.’ Ex. 40.) Providence published the letter in Tempo
the following week, November 6, 2008. The letter says, in part:
In recent issues, you have lobbed anti-Semitic, homophobic, and
mean-spirited personal attacks that demonstrate that you are out of step with the
expectations of the CSU family.[16]
16
The letter’s accusation of homophobic attacks refers to comments, reported in the
second part of the Smoke and Mirrors series, insinuating that the student organization leader and
the organization’s faculty advisor were engaged in a homosexual relationship. (Trial Tr. at 421-22;
Tempo, October 16, 2008, Pls. Ex. 38, at 1.) The letter’s accusation of anti-Semitism refers to an
editorial cartoon, obtained from an outside news service, published in the September 25, 2008
issue. (Tempo, Sept. 25, 2008, Pls. Ex. 25, at 3.) The cartoon had been the subject of a previous
letter to the editor in the October 9, 2008 issue signed by numerous CSU professors who objected
to the cartoon’s use of imagery the professors characterized as portraying “Israel as the fat rich
Jew.” (Tempo, Oct. 9, 2008, Pls.’ Ex. 31, at 2.)
16
The First Amendment grants Tempo the right to force literate members of
this community to suffer the humiliation of its poor news judgment, grammar,
spelling, punctuation, syntax, layout and other faux pas that reflect poorly on the
quality of teaching and learning at this institution of higher education. We do not
wish to deny you that right—or the right to treat others in ways that you would not
want to be treated.
However, [the school’s leadership] is committed to fostering civility, respect,
fair play and collegiality. Therefore, we request that you not represent us in print as
promoting behavior or values that fall far short of those high standards.
(Tempo, November 6, 2008, Pls.’ Ex. 41, at 2.)
On December 11, 2008, Arnold wrote another letter to the editor, addressing a question
Providence had posed in his editorial column, “The 3: Interrogatives Requiring a Response,” in the
last issue of the fall semester of 2008. In that editorial, Providence had questioned the propriety
of the school’s decision to invite Arnold’s daughter, evidently a recording artist, to perform at a
University event. (E-mail, Pls.’ Ex. 44.)17 In her letter to the editor, published on January 29, 2009,
Arnold wrote: “A credible journalist doesn’t ask insinuating questions; he tries to find answers, if
improprieties are suspected. . . . [Y]ou’re sweating the small stuff—or making it up as you go along,
whichever is more convenient. How sad for us all.” (Tempo, Jan. 29, 2009, Defs.’ Ex. 20.)
Providence sent Arnold an e-mail message confirming that her letter would run in the next issue
and asserting that the question that had appeared in his editorial had originated “from a few of your
peers.” (E-mail; Pls.’ Ex. 44.) Arnold replied:
Thank you, however, you use the term “peers” quite loosely. . . . Not one of my
peers—administrators of this university—was involved in this mean-spirited,
irresponsible and infantile mud-slinging.
17
Neither party has provided the court a copy of the issue in which the editorial initially
appeared, but the issue in which Arnold’s letter to the editor appears reproduces the editorial to
which she was responding. (Tempo, Jan. 29, 2009, Defs.’ Ex. 20.) The editorial asked: “In the
shadow of the most recent university-wide ethics review, what was executive Director of University
Relations Patricia Arnold thinking? We are sure that there were no improprieties committed, but
by scurrying about the Student Union building and getting underfoot of staff to ensure that all was
in order for her daughter Maiysha’s appearance on campus, Arnold did much to undermine that
confidence.” (Id.)
17
....
. . . You and your interim advisor are wholly liable for not verifying facts before
implying in print that I have committed ethics violations . . . .
This is a very serious charge that you made. It could have seriously harmed me
personally and professionally. I am sure the intent was to put me in the hot seat.
Unfortunately for you and the cabal, Dr. Pogue and [another University administrator
approved of Arnold’s daughter’s performance]. . . .
I’m sure you don’t advise your children or grandchildren to be dishonest,
destructive, unprofessional, vindictive and mean-spirited. You don’t have to: they
learn from your behavior. This is a reap-what-you-sow world; you’ll get an
opportunity to learn from your behavior.
You have been entrusted with $20,000 of tax dollars per semester to be the voice
of CSU students.[18] What are you saying on their behalf? More important, why in
the world are you saying it, George?
(E-mail, Pls.’ Ex. 45.) It is unclear from the context of the e-mail itself whether Arnold’s references
to Tempo’s “interim advisor” and “the cabal” were references to Moore or to Marvey Jackson,
CSU’s Executive Director of Student Activities, who succeeded Moore as the newspaper’s interim
faculty advisor in October 2008 after Moore’s termination.
On December 31, 2008, the University terminated Timothy Edwards, Tempo’s business
manager. (Trial Tr. at 351-52.)19 The University had previously renewed Edwards’s employment
contract for the fall semester of 2008 after his previous employment contract ended on June 30,
2008. (Id. at 349-50.) The University did not appoint a replacement, apparently eliminating the
18
In fact, Tempo’s operations were funded not by tax dollars, but through student
activity fees, used to pay for various student activities including the student newspaper. (UF ¶ 15.)
19
The record does not reveal who made the decision to terminate Edwards or when
that decision was made. Edwards was responsible for such administrative tasks as paying bills,
distribution, and managing advertising accounts; neither party has suggested that Edwards’s role
as a University employee influences the question of whether Tempo is a public forum. To the
contrary, the College Campus Press Act defines “campus media” as “any matter that is prepared,
substantially written, published, or broadcast by students,” and provides that collegiate media
outlets are public forums “whether campus-sponsored or noncampus-sponsored.” 110 ILCS 13/5,
13/10.
18
business manager position entirely, and Edwards testified, without elaboration, that he believed the
controversial content in Tempo motivated his termination. (Id. at 359.)
In January 2009, Providence sent an e-mail to Tempo staff, announcing that the spring
semester would be his last as Tempo’s editor. (E-mail, Pls.’ Ex. 47.) Providence explained, “After
three semesters at the helm, I’d like to give more time to my studies and my writing. If I don’t get
on the good foot soon my granddaughters will graduate before I do, so I’ve got to bounce.” (Id.)
Providence testified that he resigned because his grades were suffering as a result of the “heavy
load, serving as editor of the paper.” (Trial Tr. at 271.)
In January 2009, Providence asked Howard Johnson, Interim Vice President for Student
Affairs and Enrollment Management, to appoint Professor Quraysh Lansana as Tempo’s
permanent faculty advisor. (E-mails, Pls.’ Ex. 47; Trial Tr. at 258-59.) Providence had met
Lansana, an Assistant Professor in the English Department, at a reading for upcoming master’s
graduates of the creative writing program in the spring of 2008, at which Lansana complimented
Providence’s work at the newspaper and offered to help. (Trial Tr. at 256-57.) Lansana had
served as Tempo’s faculty advisor from 2002 to 2004, before Moore re-established the paper in
2008. (Id. at 278-79.) As a result of conversations with University officials, Lansana understood
that he would work with the paper to alter its editorial direction and content. In a memorandum to
Johnson memorializing a conversation about Lansana’s resuming as Tempo’s faculty adviser,
Lansana explained that “[t]hese young people need to understand the difference between
investigative journalism and a witch hunt.”
(Memorandum, Pls.’ Ex. 46.)
Lansana further
addressed the need for Tempo to alter its content, such as greater focus on campus events and
“tie-in[s]” to local and national news. Lansana opined that although “[t]he newspaper is not a
product of the Office of University Relations . . . the paper can and should function as an integral
part of the public relations missions, defined in the broader sense, of the university. It can and
19
should ask hard questions of administrators, faculty and students. Tempo should also celebrate
CSU by reporting on events and people that make this place work.” (Id.)
To that end, Lansana requested that Providence provide pre-publication copies of articles
for Lansana’s review. (Trial Tr. at 294-95.) On one occasion in February 2009, Providence came
to Lansana’s office expecting Lansana to offer advice on stories for the upcoming issue, but
Lansana instead took pre-publication copies of articles and told Providence that he would return
them after he had the opportunity to edit them. (Id. at 265.)20 Providence contends that he later
saw one of Lansana’s assistants in possession of one of the articles, but that Lansana never
returned the articles to Providence. (Id. at 266.) At Lansana’s insistence, Providence also provided
a “rundown” for the February 19, 2009 issue, listing, in Providence’s words, the “various stories that
are going to appear in a particular issue, what the subject matter is, who’s writing them, what the
tack is going to be, [and] what tack is going to be taken with respect to the stories.” (Id. at 267.)
After reviewing the rundown, Lansana decided that there was not enough “original content,” and
directed that the paper not be published that week. (Id. at 297.)21
Providence strongly objected to Lansana’s unilateral decision to delay publication. In an
e-mail message to Lansana and Interim Vice President Howard Johnson, Providence noted that
20
It is unclear when this incident occurred. Judging from other evidence in the record,
the court infers that the articles were intended for the February 19, 2009 issue, the same issue for
which Providence later provided Lansana with a “rundown.”
21
The court notes from its own review that the previous two issues contained very little
content written by CSU students. The February 5 issue contained Providence’s two editorials and
a two-page spread soliciting readers to submit their thoughts on Interim President Pogue’s tenure
at CSU. (Tempo, Feb. 5, 2009, Defs.’ Ex. 20.) The only original student content in the February 12
issue consisted of a report by Providence on an upcoming appearance by Reverend Jesse Jackson
at CSU. (Tempo, Feb. 12, 2009, Defs.’ Ex. 20.) The issues were otherwise populated by articles
from news services. The Sports page for Tempo had always consisted of news releases written
by staff in the University’s athletics department. The parties have not provided the court with a
copy of the “rundown” for the February 19 issue, but the court infers from an e-mail sent by
Lansana to Providence the following week that Lansana was then still in possession of four “original
stories” that Providence had intended to publish in that issue. (E-mail, Pls.’ Ex. 50.)
20
since Tempo had resumed operations in 2008, “it [had] been produced without fail every week” with
one exception. (E-mail; Pls.’ Ex. 49.)22 Providence also registered his objection to Lansana’s
insistence upon reviewing the paper prior to publication: “[T]here is no way that I can, in good
conscience agree to allowing [Lansana] the privilege of prior review of the student newspaper. Nor
can I continue to cosign his insistence that he not only see every article before the paper goes out,
but that he, or his designates [sic], would actually edit the articles themselves, sans any student
contribution or comment.” (Id.) The next week, when Lansana notified Providence via e-mail that
Lansana had “yet to receive the rundown or any original stories (other than the four from last
week),” Providence, in his reply, renewed his objection to Lansana’s insistence upon prior review.
(E-mail; Pls.’ Ex. 50.)
Tempo did not publish another issue until April 16, 2009, when Providence sent an issue
to print without Lansana’s knowledge. (Tempo, Apr. 16, 2009, Pls.’ Ex. 51; Resignation Letter, Pls.’
Ex. 52.)23 As a result of Providence’s “insubordination,” Lansana sent Interim Vice President
Howard Johnson a letter of resignation as faculty advisor on April 21, 2009. (Resignation Letter,
Pls.’ Ex. 52.) In the letter, Lansana explained that he was resigning because of his inability to
control Providence or to “work with” Tempo’s content:
22
The exception was a delay in the publication of the first issue of the spring semester
of 2009. (E-mail; Pls.’ Ex. 49.) Providence explained that delay was the result of temporary
confusion over who was responsible for processing stipends paid by the University to Tempo’s
Editor-in-Chief, Managing Editor, and Production Editor. (Trial Tr. at 364-65; E-mail, Pls.’ Ex. 49;
Pls.’ 56.1 ¶ 20.)
23
Although witnesses could not recall at trial whether any issues were published in the
month of March, the Court infers from the issue numbers that no issues were published between
February 12 (Issue 19) and April 16 (Issue 20). (Tempo, Feb. 12, 2009, Defs.’ Ex. 20; Tempo, Apr.
16, 2009, Pls.’ Ex. 51.) After Lansana delayed publication of the February 19th issue, the next
issue was also delayed because Lansana was out of town and Providence, who did not have a key
to the student activities office, could not gain entrance to the office at night—when he and the
production editor ordinarily formatted the issues. (E-mail, Ex. V to Pls.’ 56.1.) The court infers from
Providence’s testimony that no issues were published in March because editorial staff had still not
received their stipends, which were ultimately issued around May 2009. (Trial Tr. at 366.)
21
When I agreed to return to the post we spoke earnestly about my desire to work
with the editorial direction and content, and not as the business manager. . . .
The current student editor, George Providence II, has consistently failed to provide
requested information, return phone calls in a timely fashion, and made the decision
to produce a paper before I had the opportunity to proofread the content. . . . Mr.
Providence, in short, has operated at his own discretion. What rules are in place
to hold him accountable for his insubordination?
(Id.) Lansana informed Providence of his resignation on April 23, the same day that Providence
published Tempo’s next issue, again without Lansana’s prior review. (E-mail, Pls.’ Ex. 53; Tempo,
Apr. 23, 2009, Pls.’ Ex. 54.)
Providence testified that, after discussing the vacant faculty adviser position with Marvey
Jackson, Providence invited Dr. Philip Beverly to serve as faculty advisor. (Trial Tr. at 271.)
Providence testified that Tempo published one more issue on April 30, 2009, with Beverly as faculty
advisor (Id. at 269), although neither party submitted that issue into evidence. Providence claims
that no further issues were published because he did not have the key to Tempo’s space within the
student activities office. (Id.) University officials typically maintain the keys and control access to
all campus activity offices, including the space assigned to the newspaper. (Jackson Aff., Ex. D
to Defs.’ Answer to Pls.’ 56.1.) Lansana testified that it was CSU policy to issue keys only to faculty
and administrators. (Trial Tr. at 324.) Providence found it difficult to produce the paper when the
University locked the student activities office because he generally prepared the paper for print at
night and on weekends. (E-mail, Ex. V to Pls.’ 56.1.) When Lansana became faculty advisor, he
obtained a key from campus police sometime after February 27, 2009, and allowed Providence to
use the key as needed to gain access to the office. (Trial Tr. at 324; E-Mail, Ex. V to Pls.’ 56.1.)
After Lansana resigned, Providence held onto the key until Lansana asked him to return it,
although the record does not reveal the timing of the request or when Providence complied with
it. (Trial Tr. at 324-35.) Lansana testified that he returned the key to the police station. (Id.)
Providence attempted to obtain another key by contacting Marvey Jackson and Howard Johnson,
22
but he testified that nobody knew where the key had gone. (Id. at 269-70.) Without the key,
Providence claims he was unable to produce any issues after April 30, 2009.
In the autumn of 2009, Providence opted not to return as a student to Chicago State.
Providence owes the school approximately $3,000 in past tuition (Id. at 361), but is free to re-enroll
there upon paying the past due tuition. As of the time of the trial, to Providence’s knowledge,
Tempo had not been published since September 2009. (Id. at 272.)
DISCUSSION
I.
Defendants’ Motion to Dismiss Plaintiffs’ State Law Claim
Prior to trial, the Defendant filed a motion to dismiss Plaintiff’s claims under the College
Campus Press Act, 110 ILCS 13/1 et seq., arguing that Plaintiff is barred by the Eleventh
Amendment from pursuing such state law claims in federal court. In its previous opinion on the
parties’ cross-motions for summary judgment, this court concluded that the Illinois General
Assembly did not waive the state’s immunity from suits seeking monetary damages for violations
of the First Amendment. Moore v. Watson, 738 F. Supp. 2d 817, 833-35 (N.D. Ill. 2010).24 Instead,
the court read the Act’s remedial provision, 110 ILCS 13/20, as a waiver of the state’s immunity
from suits seeking injunctive or declaratory relief only. Id. at 834. Although the parties did not
address the issue, the court mentioned in a footnote that it was “satisfied that the waiver set forth
in 110 ILCS 13/20 extends to lawsuits in federal courts as well as state [forums]” because “[t]he
Illinois statute explicitly refers to a federal constitutional right by invoking the public forum analysis
under the First Amendment” and the statute “refers to ‘relief as determined by a court,’ making no
distinction between the state and federal judiciary.” Id. at 835 n.18.
24
As discussed in footnote 1, supra, this court did not address whether the Eleventh
Amendment barred the state law cause of action because it did not understand Plaintiffs’ complaint
as bringing a claim under the state statute itself. Consequently, this opinion is the court’s first
opportunity to address the Eleventh Amendment as applied to the Illinois state claim.
23
Upon further reflection, and now with the aid of briefs by both parties, the court now
concludes that the General Assembly also did not waive the State’s sovereign immunity from suits
for violations of state law.25 Because the court’s previous opinion considered only Plaintiffs’ § 1983
First Amendment claim against state officials in their official capacity, the footnote’s discussion of
waiver for suits seeking prospective relief was arguably unnecessary because such suits fall within
the Ex Parte Young exception to the Eleventh Amendment. That exception does not reach state
law claims, however, and the Eleventh Amendment acts to bar a federal court from hearing
pendent state law claims for injunctive or declaratory relief against state officials for violations of
state law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104-106 (1984)
(concluding that the Young exception is “inapplicable in a suit against state officials on the basis
of state law”); Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) (“Under [Pennhurst], we may
not exercise pendent jurisdiction to adjudicate claims that state officials are violating state law
because such claims are barred in federal courts by the Eleventh Amendment.”).26 As the
Pennhurst court made plain, “it is difficult to think of a greater intrusion on state sovereignty than
when a federal court instructs state officials on how to conform their conduct to state law.”
25
Dismissal of the state law cause of action does not, however, have a substantive
impact on the resolution of this case because the state statute claims are duplicative of Plaintiffs’
First Amendment claims. Just as the Illinois statute provides for injunctive and declaratory relief,
federal law allows Plaintiff to seek prospective equitable relief against Defendants, sued in their
official capacities, for constitutional violations. See Nelson v. Miller, 570 F.3d 868, 883 (7th Cir.
2009) (citing Ex Parte Young, 209 U.S. 123, 159-60 (1908)). Furthermore, like the Illinois statute,
42 U.S.C. § 1988(b) allows for the award of attorneys’ fees to prevailing parties in such actions.
See Bond v. Stanton, 555 F.2d 172, 174 (7th Cir. 1977) (allowing for award of attorneys’ fees in
a suit brought against state officials in their official capacities).
26
Although Plaintiff argues otherwise, it is well settled in this circuit that Illinois state
universities are arms of the state for purposes of Eleventh Amendment analysis. See Osteen v.
Henley, 13 F.3d 221, 223-24 (7th Cir. 1993) (Northern Illinois University); Davidson v. Bd. of
Governors, 920 F.2d 441, 442 (7th Cir. 1990) (Western Illinois University); Cannon v. Univ. of
Health Scis., 710 F.2d 351, 356 (7th Cir. 1983) (Southern Illinois University). Chicago State
University is one such university. See 110 ILCS 660/5-1 et seq. Furthermore, the College Campus
Press Act itself lists CSU within the statutes’ definition of “State-sponsored institutions of higher
learning.” 110 ILCS 13/5.
24
Pennhurst, 465 U.S. at 106. Where, as here, state courts have not had an opportunity to construe
a state law, the intrusion is even greater.
A state may waive its sovereign immunity by consenting to suit, but such consent must be
“unequivocally expressed.” Pennhurst, 465 U.S. at 99; see also Port Auth. Trans-Hudson Corp. v.
Feeney, 495 U.S. 299, 305-06 (1990) (“The Court will give effect to a State’s waiver of Eleventh
Amendment immunity ‘only where stated by the most express language or by such overwhelming
implication from the text as [will] leave no room for any other reasonable construction.’” (internal
quotation marks omitted) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40
(1985)). Furthermore, a state may waive sovereign immunity from suit in its own courts without
waiving immunity from suit in federal courts. See Feeney, 495 U.S. at 306 (‘“[I]n order for a state
statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must
specify the State’s intention to subject itself to suit in federal court.’” (quoting Atascadero State
Hosp., 473 U.S. at 241)). Thus, “ambiguous and general consent to suit provisions, standing
alone, [are] insufficient to waive Eleventh Amendment immunity.” Id. In Feeney, for example, the
Court concluded that a bistate compact’s statutory venue provision evidenced the states’ consent
to suit in federal court by providing that “‘[t]he foregoing consent . . . is granted on the condition that
venue . . . shall be laid within a county or judicial district established by one of said States or by the
United States, and situated wholly or partially within the Port of New York.’” Id. at 307 (emphasis
added) (quoting N.J. STATE ANN . § 32:1-162; N.Y UNCONSOL . LAW § 7106).
The College Campus Press Act makes no similar reference to federal courts. And although,
as the court noted previously, the Act “refers to ‘relief as determined by a court,’ making no
distinction between the state and federal judiciary,” Moore, 738 F. Supp. 2d at 834 n.18 (quoting
110 ILCS 13/20), the court now concludes that this language expresses no more than a general
consent to suit, which is insufficient to demonstrate that the state consented to suit in federal court.
Plaintiffs challenge this conclusion, noting the Act’s use of the term “public forum,” a term “used
25
and understood in First Amendment analysis.” (Pls.’ Opp. to Defs.’ Mot. to Dismiss Claims
Pursuant to the Illinois College Campus Press Act (hereinafter “Pls.’ Opp. to Dismiss State
Claims”), at 4.) Use of the term “public forum” is not limited to federal constitutional analysis,
however: Illinois courts also use the term in applying the freedom of speech provision of the Illinois
Constitution. See ILL . CONST . art. 1, § 4; People v. DiGuida, 152 Ill. 2d 104, 126, 604 N.E.2d 336,
346 (1992) (concluding that a supermarket had not “presented itself as a forum for free expression”
under the free speech provision of the Illinois Constitution); People v. Yutt, 231 Ill. App. 3d 718,
725, 597 N.E.2d 208, 213 (3d Dist. 1992) (concluding that a clinic that performed abortions had
not “opened up its property as a public forum” under the Illinois Constitution). Thus, use of the term
“public forum” does not unambiguously demonstrate that the Illinois legislature intended the Act to
confer jurisdiction on federal courts to hear suits brought under the Act.
Plaintiffs contend that Defendants’ motion to dismiss the state law claim, made thirty-one
days before trial and almost two years from the commencement of the suit, is untimely. Indeed,
Defendants’ motion for summary judgment raised an Eleventh Amendment defense to the Plaintiffs’
claims for damages but did not similarly raise a defense to the state law claims for injunctive and
declaratory relief. Thus, if treated as an affirmative defense like any other, Plaintiffs argue that
Defendants waived an Eleventh Amendment defense by failing to assert it and that the “law of the
case” doctrine now precludes Defendants from “[t]reating new arguments as ground for a second
decision.” (Pls.’ Opp. to Dismiss State Claims at 5.) The Supreme Court, however, has recognized
that the Eleventh Amendment bar is “jurisdictional” in the sense that it can be raised at any point
in a proceeding. See Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998) (“[T]he Eleventh
Amendment is jurisdictional in the sense that it is a limitation on the federal court’s judicial power,
and therefore can be raised at any stage of the proceedings . . . .”); Pennhurst, 465 U.S. at 99 n.8
(“The limitation deprives federal courts of any jurisdiction to entertain such claims, and thus may
be raised at any point in a proceeding.”); Townsend v. Edelman, 518 F.2d 116, 121 (7th Cir. 1975)
26
(“[A]n Eleventh Amendment argument is jurisdictional in the sense that it can be raised for the first
time on appeal.”).
Although the Seventh Circuit has recently observed that the Eleventh
Amendment bar is “non-jurisdictional,” the court was noting the distinction between subject matter
jurisdiction, which cannot be waived, and the “ability of [the federal] government to waive the
benefit of sovereign immunity [via the Administrative Procedure Act].” Blagojevich v. Gates, 519
F.3d 370, 371 (7th Cir. 2008). This court does not read that decision to call into question the ability
of a state to assert an Eleventh Amendment defense at any point in a proceeding.
Plaintiffs’ state law claims under the College Campus Press Act are dismissed.
II.
Freedom of the College Campus Press at Illinois Public Colleges Under the
First Amendment
As explained more fully in its previous opinion, the court applies strict constitutional scrutiny
to any effort by the University to restrict student speech in Tempo’s pages. See Moore v. Watson,
738 F. Supp. 2d 817, 829-31 (N.D. Ill. 2010). In this type of free speech case, “[t]he level of
scrutiny applicable to the government’s actions . . . differs depending on the nature of forum from
which the speaker has been excluded.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 865 (7th
Cir. 2006). In a “designated public forum,” as in a “traditional public forum,” state restrictions on
speech are subject to strict scrutiny; “[t]he government may ‘exclude a speaker from a . . . public
forum only when the exclusion is necessary to serve a compelling state interest and the exclusion
is narrowly drawn to achieve that interest.’” Id. (internal quotation marks omitted) (quoting Ark.
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998)). A government creates a
“designated public forum” by “intentionally opening a nontraditional forum for public discourse.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985); see also Choose
Life Ill., Inc. v. White, 547 F.3d 853, 864 (7th Cir. 2008).
When it passed the College Campus Press Act, 110 ILCS 13/1 et seq, which became
effective January 1, 2008, the Illinois General Assembly designated student-run college
27
newspapers at public universities as public forums. The Act states explicitly that “[a]ll campus
media produced primarily by students at a State-sponsored institution of higher learning is a public
forum for expression by the student journalists and editors at the particular institution.” 110 ILCS
13/10. The Act prohibits public university officials from subjecting campus media to prior review,
regardless of whether the media outlet is “campus-sponsored or noncampus-sponsored.” Id.
Furthermore, the Act addresses the relationship between campus media and “collegiate media
advisers,” defined as persons “employed, appointed, or designated by the State-sponsored
institution of higher learning to supervise or provide instruction relating to campus media.” 110
ILCS 13/5. Specifically, the Act dictates that although a “collegiate media adviser” is free to “teach[]
professional standards of grammar and journalism,” the “[c]ollegiate student editors of campus
media are responsible for determining the news, opinions, feature content, and advertising content
of campus media.” 110 ILCS 13/15. The Act protects a collegiate media adviser who refuses to
suppress or censor the student publication, providing that such an adviser “must not be terminated,
transferred, removed, otherwise disciplined, or retaliated against for refusing to suppress protected
free expression rights of collegiate student journalists and of collegiate student editors.” Id. Finally,
the Act eliminates potential liability as a basis for censorship by effectively immunizing public
universities from libel suits arising from campus media’s content, declaring that such content “is
neither an expression of campus policy nor speech attributable to a State-sponsored institution of
higher learning.” 110 ILCS 13/25.
By explicitly declaring a student-run newspaper at a public university to be a public forum
and intentionally opening such a newspaper as space for public discourse, the Illinois legislature
purposefully created a “designated public forum.” Thus, “the state voluntarily ceded any ability it
may have had to control the content of a student publication such as Tempo.” Moore, 738 F. Supp.
2d at 831; see also Hosty v. Carter, 412 F.3d 731, 737 (7th Cir. 2005) (en banc) (recognizing that
if a student newspaper at a public university “operated in a public forum, the University could not
28
vet its contents”); cf. Stanley v. Magrath, 719 F.2d 279, 282 (8th Cir. 1983) (“A public university
may not constitutionally take adverse action against a student newspaper, such as withdrawing or
reducing the paper’s funding, because it disapproves of the content of the paper.”); Joyner v.
Whiting, 477 F.2d 456, 460 (4th Cir. 1973) (“It may well be that a college need not establish a
campus newspaper, or, if a paper has been established, the college may permanently discontinue
publication for reasons wholly unrelated to the First Amendment. But if a college has a student
newspaper, its publication cannot be suppressed because college officials dislike its editorial
comment.”). Accordingly, CSU and its officials are barred by the First Amendment from taking
“adverse action against the student newspaper, including engaging in conduct designed to chill the
speech contained in future editions, on the basis of the views expressed in the publication unless
such action served a compelling government interest.” Husain v. Springer, 494 F.3d 108, 125 (2d
Cir. 2007). The court proceeds to address Plaintiffs’ claims that CSU did take action to chill
exercise of First Amendment rights, by terminating Moore and by interfering with the publication
of Tempo.
III.
Moore’s Termination
A.
First Amendment Protections for Collegiate Media Advisers
Faculty advisors occupy a delicate position, expected to improve the quality of student
publication but prohibited by the First Amendment from interfering with student editorial decisions.
Moore was not a “speaker” within the traditional sense, because Tempo’s content did not contain
any speech attributable to him. Indeed, had Moore authored material critical of the University, the
University could well be within its rights to fire him, especially because Moore, as Executive Director
for Communications, was responsible for the University’s public image. See Garcetti v. Ceballos,
547 U.S. 410, 421 (2006) (“[W]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes, and the
29
Constitution does not insulate their communications from employer discipline.”); Spiegla v. Hull, 481
F. 3d 961, 965 (7th Cir. 2007) (“Garcetti made clear that public employees speaking ‘pursuant to
their official duties’ are speaking as employees, not citizens, and thus are not protected by the First
Amendment regardless of the content of their speech.”).27
The court nonetheless concludes that Moore can pursue a First Amendment retaliation
claim for his termination because of the way the Illinois legislature constituted collegiate media
outlets as limited public forums. Where “the government excludes a speaker who falls within the
class to which a designated public forum is made generally available, its actions are subject to strict
scrutiny.” Forbes, 523 U.S. at 677 . The Illinois legislature recognized collegiate media advisers
employed by public universities as participants within the forum it established. The College
Campus Press Act explicitly acknowledges faculty advisors’ interest in the expressive freedom of
the college students they advise by granting those advisers standing to sue for declaratory and
injunctive relief to enforce the Act’s prohibition against prior review by public university officials.
110 ILSC 13/20. Furthermore, the General Assembly recognized that a public university might
attempt to retaliate against faculty advisors who refuse to suppress student speech. 110 ILSC
13/15. Because they are recognized participants within the designated public forum established
by the Illinois General Assembly, the First Amendment protects collegiate media advisers against
retaliation for the protected speech of the students. Notably, Defendants have never challenged
Moore’s standing in this case.
27
Defendants do not raise the Garcetti doctrine as a defense. Although Defendants
might have argued that Arnold recommended Moore’s termination because she believed he helped
author the objectionable content in Tempo, Defendants claim just the opposite. Their sole defense
is that unsatisfactory press releases caused Arnold’s recommendation, which had nothing to do
with Tempo.
30
B.
Plaintiffs’ Retaliation Claim
To establish a prima facie case of First Amendment retaliation under 42 U.S.C. §1983,
Plaintiffs most prove “(1) that they were engaged in constitutionally protected speech; (2) that
public officials took adverse actions against them; and (3) that the adverse actions were motivated
at least in part as a response to the plaintiffs’ protected speech.” Springer v. Durflinger, 518 F.3d
479, 483 (7th Cir. 2008). The parties do not dispute the first two elements of the test—that
Plaintiffs engaged in constitutionally protected speech and that Moore’s termination constitutes an
adverse action—but they do dispute “whether Moore’s termination was occasioned by his refusal
to suppress student expression in Tempo or by his unsatisfactory job performance in unrelated
tasks.” Moore, 738 F. Supp. 2d at 831. It is Plaintiffs’ burden to show that the protected speech
was a “motivating factor” in Pogue’s decision to terminate Moore, in which case the burden shifts
to Defendants to show by a preponderance of the evidence that they would have reached the same
decision as to Moore’s employment even in the absence of the protected conduct. See Greene v.
Doruff, 660 F.3d 975, 979 (7th Cir. 2011). In other words, a plaintiff “must show only that the
defendant’s conduct was a sufficient condition of the plaintiff’s injury” to make a prima facie case,
whereas defendants “can rebut, but only by showing that [their] conduct was not a necessary
condition of the harm—the harm would have occurred anyway.” Id. at 980. If, instead, the
defendants do not carry their burden, “the inference is that ‘but for’ causation (that is, a necessary
condition) has been shown: the plaintiff would not have been harmed had his rights not been
violated by the defendant.” Id. at 979.
As a preliminary matter, the evidence at trial satisfies the court that Interim President
Pogue, who was the ultimate decision maker, terminated Moore “based on Arnold’s
recommendation without any independent review or investigation by Pogue.” Moore, 738 F. Supp.
2d at 832 n.16. Therefore, Pogue may be characterized as the “cat’s paw” and Arnold the
31
proverbial monkey whose alleged improper motivation is attributable to the decisionmaker. See,
e.g., Martino v. MCI Commc’ns Servs., Inc., 574 F.3d 447, 452-53 (7th Cir. 2009).28
The evidence—including Arnold’s opinion of Tempo’s contents and the timing of Moore’s
termination—satisfies the court that Plaintiffs have made out a prima facie case of First
Amendment retaliation. As this court previously pointed out,
Both before and after Moore’s ouster, Arnold expressed her displeasure with
Tempo’s coverage—often in harsh terms. Nor were her complaints limited to
matters of grammar or professionalism. Rather, the record reflects that Arnold
protested about the newspaper’s story choices and methods of reporting.
Moore, 738 F. Supp. 2d at 831. When Arnold expressed these negative views to Moore upon
joining the advisory board, Moore explained that university administrators were not permitted to
interfere with or suppress the speech published in Tempo. The evidence also suggests that Arnold
blamed Moore for the objectionable content. Interim Vice President Beverly John’s transition memo
to Arnold, which Arnold received and discussed with John before recommending Moore’s
termination, blamed Moore for what John called the “negative tenor of the student newspaper.”
After Moore’s termination, Arnold expressed her own opinion about the responsibility of Tempo’s
adviser for the newspaper’s content in an e-mail message to Providence, in which she asserted
that the newspaper and its “interim adviser” were “wholly liable” for implying in print that Arnold had
acted unethically.
28
As Justice Scalia recently explained,
The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by
La Fontaine in 1679, and injected into United States employment discrimination law
by Posner in 1990. See Shager v. Upjohn Co., 913 F.2d 398, 405 [(7th Cir. 1990)].
In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from
the fire. After the cat has done so, burning its paws in the process, the monkey
makes off with the chestnuts and leaves the cat with nothing. A coda to the fable
(relevant only marginally, if at all, to employment law) observes that the cat is similar
to princes who, flattered by the king, perform services on the king’s behalf and
receive no reward.
Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190 n.1 (2011).
32
Additionally, the timing of Moore’s termination strongly supports the conclusion that Arnold
recommended Moore’s termination because of her objections to Tempo’s content. Although
suspicious timing is not sufficient to establish a reasonable inference of retaliation, it is a factor that
can be considered “in combination with other evidence.” Surita v. Hyde, 665 F.3d 860, 878 n.4 (7th
Cir. 2011); see also Greene, 660 F.3d at 980 (concluding that the timing of a “conduct report,
together with the rather threadbare nature of the report, was sufficient . . . to create a triable
issue.”) Arnold’s letter recommending termination is dated October 10, 2011, the day after Arnold
was, in her own words, “outside [her] body with rage” upon reading an article in Tempo’s October
9 issue. Arnold also admits that it was on October 9 that she told Moore she found the article
“unconscionable.” According to Moore, he responded by defending Providence’s right to publish
the story.
Defendants claim that Arnold’s sole reason for recommending Moore’s termination was
Moore’s submission of two unsatisfactory press releases. The court, however, concludes that
Defendants have not carried their burden of proving that Arnold would have recommended Moore’s
termination regardless of her objection to Tempo’s content and her interactions with Moore
regarding Tempo. In reaching this conclusion, the court notes, first, that Arnold’s explanation for
her dissatisfaction with the press releases is unconvincing. Arnold complained that the press
release lacked a title, release date, and hash marks denoting the end of the release. At closing
arguments, the court likened her objections to situations in which a judge’s law clerk fails to insert
a case caption at the top of her first draft opinion—a failure of form rather than substance. Indeed,
even at trial, Arnold herself did not criticize the substance of Moore’s work. Second, Arnold’s
explanation for her recommendation to terminate Moore is suspect because of Arnold’s apparent
failure even to mention inadequacies in the press releases, let alone to offer instruction, direction,
or feedback. The court does not believe that Arnold, who was outspoken at trial about her
33
intolerance for ineptitude among her subordinates, would have failed to mention the unsatisfactory
work in her subsequent communications with Moore.
Instead, after she received the purportedly unacceptable press releases, Arnold
communicated with Moore on a wholly unrelated matter—the October 9 issue of Tempo. The court
concludes Plaintiffs have proven that Arnold’s recommendation to terminate Moore was based, at
least in part, on her objection to the protected speech in Tempo. Although Defendants have
offered a reason for Moore’s termination independent of protected speech—the unsatisfactory
press releases—Defendants have not proven by a preponderance of the evidence that Arnold
would have recommended Moore’s termination on that ground regardless of her objection to
Tempo’s protected speech. The court finds that Moore’s termination was a violation of the First
Amendment.
C.
Equitable Remedies
At the close of trial, the court asked the parties to submit briefs addressing appropriate
equitable remedies. Unfortunately, both parties used these briefs as an opportunity to reargue the
issue of liability and, with limited exceptions, cited no law addressing the propriety of the remedies
Plaintiffs proposed.
Among those equitable remedies Plaintiffs seek is “a declaration that the removal of Dr.
Moore as faculty advisor to Tempo and firing him are violations of the First Amendment and an
order directing defendants to reinstate him.” (Pls.’ Mem. on Appropriate Equitable Remedies at 5.)
In the Title VII context, “reinstatement is the preferred remedy for victims of discrimination, and the
court should award it when doing so is feasible.” Bruso v. United Airlines, Inc., 239 F.3d 848, 861
(7th Cir. 2001). Although “a court is not required to reinstate a successful plaintiff where the result
would be a working relationship fraught with hostility and friction,” Id., the possibility of such friction
in this case is minimal because the supervisors who terminated Moore—Arnold and Pogue—are
34
no longer employed by the University. Reinstatement may be awarded less often in cases brought
under 42 U.S.C. § 1983 because that statute affords greater monetary compensation. See
Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 322 (1st. Cir. 1989). In this case, however,
where monetary damages are barred by the Eleventh Amendment, reinstatement appears to be
the only remedy available to Moore.
The court therefore concludes that reinstatement is
appropriate to remedy the First Amendment violation occasioned by Moore’s termination. See
Nanda v. Bd. of Trs., 303 F.3d 817, 831-32 (7th Cir. 2002) (affirming this court’s decision that the
plaintiff could maintain a § 1983 claim seeking reinstatement against public university officials
named in their official capacity).
Plaintiffs also ask the court to order Defendants to remove from the University’s
employment records all negative evaluations of Moore related to his termination. (Pls.’ Mem. on
Appropriate Equitable Remedies at 11-13.) Substantial Seventh Circuit precedent supports this
request. See, e.g., Bruso, 239 F.3d at 863-64. Indeed, in Bruso, the Seventh Circuit held that a
district court abused its discretion by denying a similar request by a plaintiff who won a jury verdict
in favor on his retaliatory demotion claim. Id. The court finds expungement of negative material
in Moore’s employment record is an appropriate “means of removing the stain of the employer’s
discriminatory actions from the plaintiff’s permanent work history.” Id. at 863.29
The court thus grants declaratory relief—a declaration that Moore’s termination violated
Plaintiffs’ First Amendment rights—and orders Defendants to reinstate Moore to his previous
29
Plaintiffs also seek expungement of Defendants’ records related to Providence.
Specifically, Plaintiffs ask for an order directing expungement of “Lansana’s complaint to university
administrators about [Providence’s] alleged insubordination by refusing to submit articles for review
prior to publication . . . .” (Pls.’ Mem. on Appropriate Equitable Remedies at 12.) Plaintiffs have
not proven that Lansana’s e-mail message would become part of any record associated with
Providence in the way that negative evaluations addressing Moore’s termination would be part of
Moore’s employment record, and might be relayed to Moore’s prospective employers. In the
absence of evidence that Lansana’s e-mail would be appended to Providence’s academic
transcript, the court denies Plaintiffs’ requested remedy with regard to Providence.
35
position as Executive Director for Communications, or to a similar position. Because Moore’s
termination effectively prevented the renewal of his one year employment contract, the court orders
that Moore be reinstated for an employment term of not less than one year.30 The court also orders
that Defendants remove all negative material in the University’s employment records concerning
Moore’s termination. As Tempo appears to have once again become dormant and, as explained
below, Plaintiff has not proven that the University caused Tempo’s current lapse, the court declines
to reinstate Moore to his position as Tempo’s faculty advisor. Indeed, even if Tempo were still
operational, it would arguably be inappropriate for Moore to serve both as Executive Director of
Communications and as Tempo’s faculty adviser, in light of the potential conflict of interests.
IV.
Subsequent University Conduct Toward Providence and Tempo
The court recognizes that violations of Providence’s First Amendment rights did not end with
Moore’s termination. For example, Lansana insisted upon vetting the paper’s contents and directed
that the publication of an issue be delayed. Also, Arnold zeroed in on Tempo for the enforcement
of a “protocol” requiring Tempo reporters to contact Arnold before interviewing University
employees. The court nonetheless concludes that it cannot grant Providence any of the relief he
requests against the Defendants named in this lawsuit.
Plaintiff Providence seeks declaratory and injunctive relief for Lansana’s and Arnold’s
attempts to impose prior review upon Providence and Tempo; for Lansana’s withholding publication
30
Defendants did not address Moore’s request for reinstatement in Defendants’
memorandum on equitable remedies, much less whether reinstatement is appropriate for an
employee whose one-year employment contract has expired. At any rate, the court is satisfied that
Moore’s contract would have been renewed absent the constitutional violations. At trial, Plaintiffs
presented Edwards’s testimony concerning the repeated renewal of his employment contract,
suggesting that the renewal of employment contracts was routine at CSU. (Id. at 350-51.)
Defendants presented no evidence to the contrary. Moreover, Pogue’s letter to Moore specifically
referenced contract renewal, notifying Moore that although he would be paid for the rest of his
contract term, his contract would not be renewed. As such, the same constitutionally impermissible
reasons attributable to Pogue’s decision to terminate Moore are attributed to his decision not to
renew Moore’s employment contract.
36
of the October 19, 2009, Tempo issue;31 and for Arnold’s “protocol” that Tempo staff receive
clearance from the University’s public relations department before interviewing University
employees. Neither Arnold nor Lansana are Defendants in this case, however. Instead, the named
Defendants are successor officials who were properly substituted as Defendants pursuant to
Federal Rule of Civil Procedure 25.32 Although Plaintiffs’ claims did not abate simply because of
the transition in the administration, the commentary to Rule 25 notes that a successor defendant
“who does not intend to pursue the policy of his predecessor which gave rise to the lawsuit” may
“seek to have the action dismissed as moot or to take other appropriate steps to avert a judgment
or decree.” FED . R. CIV . P. 25(d) advisory committee’s note to 1961 Amendment.
Until their closing arguments, Defendants’ arguments concerning mootness addressed
Providence’s resignation as editor of Tempo and his absence from CSU beginning in the fall
semester of 2009 (Defs.’ Mem. of Law in Supp. of Their Mot. for Summ. J. at 5-8), not the change
in officials. At closing arguments, however, Defendants did make the argument that neither Pogue
nor Arnold are presently employed by CSU and that even if they did violate Providence’s rights,
Plaintiffs have not shown that the “injury is ongoing or likely to recur.” (Trial Tr. at 466.) Despite
Defendants’ tardiness in raising this argument, the court has taken it into consideration because
mootness is a jurisdictional issue. See Evers v. Astrue, 536 F.3d 651, 662 (7th Cir. 2008)
(“Mootness is a threshold jurisdictional question that insures that the court is faithful to the case or
controversy limitation in Article III of the Constitution.”)
The Seventh Circuit has explained the need for caution in circumstances such as these:
31
Notably, Plaintiffs did not seek a temporary restraining order against Lansana’s
policies and his decision to delay publication.
32
Rule 25(d) provides, in pertinent part: “An action does not abate when a public
officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while
the action is pending. The officer’s successor is automatically substituted as a party. Later
proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must by disregarded.” FED . R. CIV . P. 25(d)
37
A demand for present or prospective (declaratory or injunctive) relief imposes a
substantial burden on the plaintiff to show survival of the controversy. Thus, when
a public official is sued in his official capacity and the official is replaced or
succeeded in office during the pendency of the litigation, the burden is on the
complainant to establish the need for declaratory or injunctive relief by
demonstrating that the successor in office will continue the relevant policies of his
predecessors.
Kincaid v. Rusk, 670 F.2d 737, 741 (7th Cir. 1982) (citing Spomer v. Littleton, 414 U.S. 514, 520-23
(1974)), abrogated on other grounds by Salazar v. City of Chicago, 940 F.2d 233 (7th Cir. 1991).
Although Plaintiffs have produced evidence that Lansana and Arnold violated Providence’s First
Amendment rights, they have produced no evidence that Defendants have continued or will
continue Lansana’s and Arnold’s policies or practices. From all that appears in the record,
Lansana’s policy of prior review, his decision to delay the publication of one issue of Tempo, and
Arnold’s “protocol” were idiosyncratic practices of those officials. Because Plaintiffs have not met
their burden, declaratory and injunctive relief against Defendants for these practices is improper.
Nor is the court satisfied that Plaintiffs are entitled to the other equitable relief they request.
Plaintiffs seek an order reinstating Tempo, which has not been published since Providence’s
departure. But Plaintiffs have not shown that Tempo’s dormancy is a result of any action by
University officials. Plaintiffs emphasize the fact that the University denied Providence access to
Tempo’s office by refusing to give him a key, but it was not University practice for students to
receive keys to the student organization offices, and Providence was evidently able to produce the
paper before Lansana allowed him to borrow a key. Providence offered no evidence that the
University barred him from the newspaper’s office during hours when the student activities office
was open and unlocked.
The court finds it more likely that lack of student interest after
Providence’s voluntary departure was the reason for Tempo’s lapse; several of Tempo’s final
issues contained little or no original content beyond that authored by Providence.
Plaintiffs also ask this court for a declaration that the elimination of Timothy Edwards’s
position as Tempo’s business manager violated the First Amendment and an order reinstating that
38
position. Plaintiffs’ request is awkward because Timothy Edwards is not a plaintiff in this action.
Although the court finds the elimination of the business manager position suspect, Plaintiff did not
produce adequate evidence at trial to prove that Edwards’s termination was motivated by Tempo’s
editorial content. Indeed, the court is not even aware who was responsible for the decision to
eliminate the business manager position. Even if the court were to entertain an injunction ordering
the University to hire a new business manager, the issue is now moot because Tempo is no longer
operational.
Finally, Plaintiffs ask for a declaration that Providence “was forced to resign as editor of
Tempo and to withdraw from Chicago State University as a result of harassment and censure of
Tempo, and an order directing Defendants to readmit him to the University and reinstate him as
editor of Tempo.” (Pls.’ Mem. on Appropriate Equitable Remedies at 13-15.) The evidence does
not establish, however, that University officials drove Providence from Tempo or the University.
Providence himself announced he was resigning as Tempo’s editor in order to focus on his grades.
Although Providence’s numerous conflicts with university officials during his tenure as editor
undoubtably added to the burden of that position, Providence voluntarily departed from Tempo.
Moreover, the only impediment to Providence’s return to CSU, should he choose to do so, is his
outstanding tuition debt, which has nothing to do with this litigation.
CONCLUSION
For the reasons discussed herein, Defendants’ motion to dismiss claims pursuant to the
Illinois College Campus Press Act [86] is denied. The court declares that Moore’s termination was
a violation of Plaintiffs’ First Amendment rights. The court orders Defendants to reinstate Moore
to his previous or similar position. The court further orders Defendants to expunge all negative
materials regarding Moore’s termination in his employment records. All other equitable relief
39
requested by Plaintiffs is denied. The judgment is final and appealable, but the court will retain
jurisdiction to enforce the relief ordered here.
ENTER:
Dated: March 13, 2012
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
40
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?