McBrearty v. Kappeler et al

Filing 52

MEMORANDUM OPINION & ORDER: IT IS ORDERED: 1. Defendant Garrison's 41 Motion for Extension of Time to File Response to Plaintiff McBrearty's Motion for Summary Judgment is GRANTED; 2. Plaintiff McBrearty's 40 Motion for Summary Judgment is DENIED; 3. Defendant Carol Garrison's 44 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 1/9/2018. (KM)cc: COR, Pltf via U.S. mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JENEAN MCBREARTY,
Plaintiff,
v.
DR. VICTOR KAPPELER, et al.,
Defendants.
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Civil No. 5:16-121-JMH

MEMORANDUM OPINION & ORDER

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This matter is before the Court upon cross-Motions for Summary
Judgment filed by Defendant Carole Garrison [DE 44] and Plaintiff
Jenean McBrearty, pro se [DE 40; Response at DE 45].1 McBrearty
argues that Garrison violated her right to free speech and to due
process under the First and Fourteenth Amendments to the United
States Constitution when Garrison, as her instructor, removed a
post that McBrearty made to a class discussion board and then
somehow injured her chances of obtaining future employment at
Eastern Kentucky University.
“To successfully establish a prima facie case under 42 U.S.C.
§ 1983, a plaintiff must prove two elements: (1) the defendant
must be acting under the color of state law, and (2) the offending
conduct must deprive the plaintiff of rights secured by federal

1

Defendant Garrison’s Motion for an Extension of Time [DE 41] to file a Response
to Plaintiff Garrison’s Motion for Summary Judgment is well-taken and will be
granted.

law.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing
Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Garrison does not
dispute she was acting in her official capacity as an EKU professor
at all times relevant to McBrearty’s claims, and therefore does
not deny she was acting under color of state law. However, despite
McBrearty’s assertions, Garrison argues and the Court agrees that
Garrison conduct did not violate any of McBrearty’s constitutional
rights for the reasons set forth in this opinion. Therefore,
Garrison is entitled to summary judgment on all claims made against
her, and McBrearty’s Motion for Summary Judgment will be denied.
I.
Plaintiff McBrearty enrolled in Defendant Garrison’s online
PLS 326 class, “Police, Liability and Ethics,” at Eastern Kentucky
University (“EKU”). As part of the class, students were expected
participate

in

online

discussions,

contained

on

a

Blackboard

discussion page. As the parties explain it, only those particular
individuals enrolled in Garrison’s PLS 326 class were permitted
access to the discussion thread at issue. There was no “general
access” to these discussions; rather, Garrison’s students had to
obtain permission to access the forum by way of enrolling in the
course. Each week, Garrison would post a discussion board prompt,
and students were expected to both respond to the initial post and
respond to two of their classmates’ posts. Student participation

in these discussions was reflected as 10% of the student’s overall
grade in the course.
In the seventh week of the course, Garrison posted this
discussion prompt:
Imagine you are a newly appointed Police Chief
of a brand new department. A newly chartered
small city has hired you to organize and staff
this state of the art professional police
department.
Identify
and
define
operationally/thoroughly
each
of
five
characteristics, values or traits you will
look for in people you hire for our
department. Be sure to defend why these are
the five most important things to look for in
recruiting professional police officers (what
consequences are there if this characteristic
or value is present or absent that is critical
to an effective law enforcement agency).
Examples, but you can use your own if you can
defend
them:
courageous,
self-control,
generous, high-minded, gentle truthfulness,
modest, empathetic, imaginative, decisive,
good
communicator,
aware,
educated,
respectful, tolerant, physically fit, honest.
McBrearty

responded

at

length

and

concluded

with

the

following statement:
What I’d look for in my officers is what the
military once looked for in its officers:
Renaissance people with the ability to
innovate, seize the initiative, and maintain
high standards of performance in the line of
duty. I’d want them to have the sound judgment
of an Eisenhower, the initiative of a Patton,
the
courage
of
a
Churchill,
and
the
determination of a Hitler.
Two students responded with short comments on the relative
merits of crafting a police force comprised of individuals with

military police training. Then, a third student offered an extended
response addressing many points, including Eisenhower’s decision
to send federal troops to keep the peace in Little Rock during the
integration of Central High School in the wake of Brown v. Board
of Education and the protection of the First Amendment and other
constitutional provisions by police officers. He continued,
Auschwitz, Sobibor, Treblinka, etc. . . . are
examples of Hitler’s determination, a genocide
where 11 million or possibly more people died.
Under Hitler’s rule, Germany invaded or
occupied Czechoslovakia, Austria, Poland,
Denmark, Norway, Belgium, France, Yugoslavia,
Greece, and the Soviet Union among others. The
Second World War resulted in approximately 70
to 80 million deaths. One cannot forget the
Nuremberg Laws that Hitler and the Nazi party
enacted that racially divided German society
and helped lead German into the holocaust.
Jenean, I hope that you can appreciate how
evoking the name or image of Hitler can bring
about strong emotions within people. I respect
your right to use him as an example, but I
question its validity in this measure.
Hitler’s determination was not based in moral
outcomes for himself, his people, or the
world.
McBrearty responded, in part:
With all due respect, I said I would want my
officers to have “the determination” of a
Hitler, not that I would want them to believe
as he did or behave as he did. But he was one
determined individual! Few people know he
served honorably in WWI and won the Iron
Cross. He was not a “coward” or sex pervert.
There is much propaganda about him that was
BS --- and used by politicians everywhere as
an accusation of corruption. Like the word
racism, racist, and sexist, etc. I’m no longer

cowed by or afraid of words. And, having read
the first three Chapters [sic] of Mein Kampf,
I understand where he was coming from and just
how
disenfranchised
the
German
people
felt….not unlike how minorities feel. Yes, I
know alluding to him evokes strong emotion,
but that’s the point. We cannot be afraid of
words, dead people, or ideas.
How can we have a real conversation about
anything when we are gagged by PC, by fear,
by aversion to ideas? Hitler is used as a
bogeyman, but do we ever contemplate that
Stalin’s regime killed twice the number of
people that Hitler’s regime did? And Chairman
Mao, three times as many? How many students
know about The Great Leap Forward that killed
off so many of China’s intellectuals? About
show trials? How many students have read
Koestler’s Darness [sic] at Noon? Communism
has jailed, tortured, enslaved, and butchered
twenty times the number of people Hitler
killed yet we hear nothing about this. Our
history books don’t teach our children about
the evils of Communism, of statism, and the
government shredding of our Constitution. We
are not allowed to talk about the horrors of
Islam, of the connection between the black
power movement and islam [sic]. How many
people know the name of Elijah Muhammed, and
the Nation of Islam that preaches black racism
and separatism? About these things, we must
be silent, even though a “conversation” is a
two-way street.
If we are to be free, we must exercise our
right to free speech. Use it or lose it. When
people can be gunned down and the perpetrators
excused by our government because a cartoon
contest was “insulting” to a religion, it is
time we seriously examine how suppressed we
really are. Since when do we yield our rights
because someone is offended? We must stop
being afraid of words.

Garrison decided to remove the thread, including McBrearty’s
post and the comments on it. She explained that she did so once
another student and McBrearty began commenting and discussing a
subject which had nothing to do with the initial assignment nor
was related to preparation for their final examination in the
course.

Garrison

did

not

pursue

EKU’s

student

disciplinary

procedures against McBrearty nor was McBrearty’s grade impacted as
a result of the discussion or Garrison’s decision to remove the
thread, as McBrearty received an A in the course. From Garrison’s
perspective, that was the end of the matter, but not so for
McBrearty, who repeatedly sought recourse from the administration
of EKU to no avail and claims that her opportunities for employment
at EKU were injured.
II.
Summary judgment is appropriate only “if the movant shows
that there is no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a). “A genuine issue of material fact exists when ‘there
is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.’” Laster v. City of Kalamazoo,
746 F.3d 714, 726 (6th Cir. 2014) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). The Court reviews all
evidence and draws all inferences in the light most favorable to
the nonmoving party. Chapman v. UAW Local 1005, 670 F.3d 677, 680
(6th Cir.2012) (en banc); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The question is whether
“the

evidence

presents

a

sufficient

disagreement

to

require

submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251–52,
106 S.Ct. 2505. The non-moving party may not “rely on subjective
beliefs to show a genuine dispute” nor may they “defeat summary
judgment by conclusory responses.” ACLU v. Mercer County, 240 F.
Supp. 2d 623, 625 (E.D.Ky. 2003).
To successfully establish a prima facie case under 42 U.S.C.
§ 1983, a plaintiff must prove two elements: “(1) the defendant
must be acting under the color of state law, and (2) the offending
conduct must deprive the plaintiff of rights secured by federal
law.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing
Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Professor Garrison
does not dispute she was acting in her official capacity as an EKU
professor

at

all

times

relevant

to

McBrearty’s

claims,

and

therefore does not deny she was acting under color of state law.
McBrearty argues that Garrison’s decision to remove the thread
from the class discussion forum constitutes a violation of her
right to free speech under the First Amendment and that it somehow
violated her right to due process under the Fourteenth Amendment
to

the

United

States

Constitution

because

she

lost

future

employment opportunities at EKU. On the facts before this Court,
no reasonable juror could find that Garrison’s actions violated

McBrearty’s constitutional rights, as explained below, and her
§ 1983 claim fails in this regard. Summary judgment will be denied
to McBrearty and will be granted in favor of Garrison.
III.
Among other things, this case presents a unique variation on
Godwin’s Law, the Internet adage and special case of the Bernoulli
trial sometimes referred to as reduction ad Hilterum: as an online
discussion grows longer, the probability of a comparison involving
Hitler approaches one. See Mike Godwin, Meme, Counter-meme, WIRED
(October 1, 1994, 12:00 PM), https://www.wired.com/1994/10/godwinif-2/

(last

viewed

on

January

https://perma.cc/C48Y-KB5K);

see

8,

also,

2018)

(permalink

“Godwin’s

Law,”

English

at

Oxford

Dictionary,

http://www.oed.com/view/Entry/340583?redirectedFrom=godwin%27s+l
aw#eid (last viewed on January 8, 2018) (“A facetious aphorism
maintaining that as an online debate increases in length, it
becomes inevitable that someone will eventually compare someone or
something to Adolf Hitler or the Nazis.”). Plaintiff McBrearty
made the comparison right away in the thread, albeit in a way that
was,

at

least,

initially

flattering.

One

of

her

classmates

eventually took her to task and argued, as Godwin observes, that
the comparison “trivialized the horror of the Holocaust and the
social

pathology

of

the

https://www.wired.com/1994/10/godwin-if-2/.

Nazis,”
Thus,

the

Godwin,
game

was

afoot until Garrison removed the thread in an effort to restore
order to the online discussion.
McBrearty’s speech and Garrison’s actions are subject to
analysis

under

the

First

Amendment

to

the

United

States

Constitution, as students retain the robust constitutional right
to freedom of speech at school and in their class assignments, but
the constitutional rights of students in schools must be “applied
in light of the special characteristics of the school environment.”
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)
(quoting
District,

Tinker
393

educational

v.

U.S.

Des

Moines

Independent

503,

506

(1969)).

institutions

are

involved,

Community

“[W]here
this

School

state-operated

Court

has

long

recognized ‘the need for affirming the comprehensive authority of
the States and of school officials, consistent with fundamental
constitutional safeguards, to prescribe and control conduct in the
schools.’” Healy v. James, 408 U.S. 169, 180 (1972) (quoting
Tinker, 393 U.S. at 507).
In Barr v. Lafon, 538 F.3d 554, 563-64 (6th Cir. 2008), the
Sixth Circuit addressed the three types of student speech and when
and how each type may be regulated:
(1) under Fraser, a school may categorically
prohibit vulgar, lewd, indecent, or plainly
offensive student speech, (2) under Hazelwood,
a school has limited authority to censor
school-sponsored student speech in a manner
consistent with pedagogical concerns, and (3)
the Tinker standard applies to all other

student speech and allows regulation only when
the school reasonably believes that the speech
will substantially and materially interfere
with schoolwork or discipline[.]2
(internal citations omitted).
Looking at McBrearty’s speech as school-sponsored speech
under Hazelwood, the finder of fact is concerned with whether
Garrison removed the thread because of her concern that students
were being disrupted and distracted from their education and, in
particular, the departure of the thread from the pedagogical
purpose of the discussion assignment. “Public educators may limit
‘student speech in school-sponsored expressive activities so long
as their actions are reasonably related to legitimate pedagogical
concerns.’

The

neutral

enforcement

of

a

legitimate

school

curriculum generally will satisfy this requirement[.]” Ward v.
Polite, 667 F.3d 727, 733 (6th Cir. 2012) (applying the Hazelwood
test for regulating student speech to college settings) (internal
citation

omitted).

The

“First

Amendment

does

not

require

an

educator to change the assignment to suit the student’s opinion or
to approve the work of a student that, in his or her judgment,
fails to meet a legitimate academic standard.” Brown v. Li, 308

2

McBrearty argues that Garrison’s real reason for removing the thread in
question is because the professor found the content of her speech objectionable.
Even if the Court assumes that Garrison found the speech objectionable, the
undisputed material facts show that Garrison removed McBrearty’s thread because
she found it disruptive and off-topic. See Garrison Depo. at 27 (“I don’t remove
posts that are objectionable. I remove posts that disrupt my class.”). Thus, no
evaluation is needed of McBrearty’s speech under the Fraser doctrine.

F.3d 939, 949 (9th Cir. 2002). “It is only when the decision to
censor a school-sponsored publication, theatrical production, or
other vehicle of student expression has no valid educational
purpose that the First Amendment is so ‘directly and sharply
implicate[d],’ as to require judicial intervention to protect
students'

constitutional

rights.”

Hazelwood,

484

U.S.

at

273

(internal citation omitted).
In light of the undisputed material evidence in this matter,
no reasonable jury could conclude that Garrison’s decision had no
valid

educational

purpose

or

was

not

reasonably

related

to

legitimate pedagogical concerns. The thread in question, which
began with McBrearty’s relevant if controversial invocation of
Hitler’s qualities in an assigned discussion of police leadership
qualities, quickly devolved into a series of posts centered on
political correctness, McBrearty’s distaste for “PC culture,” and
the supposed dangers of Islam, and references to how she believes
that

history

has

maligned

Hitler,

not

about

qualities

and

characteristics of police leadership – not even those which might
mirror Hitler’s leadership qualities. Because Garrison’s decision
to intervene and remove the thread was tied to the fact that it
had gone off topic, it was legitimately related to the educational
purpose of moderating an educational discussion on the subject of
police leadership qualities and the legitimate pedagogical concern

of keeping the students on topic and on task in their on-line
discussion.
Alternatively, looking at the disruptive speech analysis
available under Tinker on the same facts, there is no evidence
from

which

a

reasonable

jury

could

conclude

that

Garrison

unreasonably believed that the speech could be suppressed because
it would substantially and materially interfere with schoolwork or
discipline. Tinker, 393 U.S. at 591; see also Morse v. Frederick,
551 U.S. 393 (2007); Lowery v. Euverard, 497 F.3d 584, 593 (6th
Cir. 2007) (standard does not require any disruption to have
occurred). The undisputed material facts show that the on-line
discussion among the students went off the topical rails, and it
follows that Garrison was entitled to remove the thread to prevent
the thread from substantially and materially interfering further
with the forum discussion assignment.3

3

The same result is reached upon applying the more broadly applicable “forum”
analysis to these facts. In order to apply a forum analysis, “a speaker must
seek access to public property or to private property dedicated to public use
to evoke First Amendment concerns.” Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 801 (1985). The Court may apply a forum analysis because
the Blackboard program used in Garrison’s course, from which the subject thread
was removed, is essentially “public property” owned and operated by EKU, a
public state university. See Kincaid v. Gibson, 236 F.3d 342, 347 (6th Cir.
2001) (recognizing the application of forum analysis to expressive activity
within educational settings and applying forum analysis to Kentucky State
University’s confiscation of yearbooks); see also Cornelius, 473 U.S. at 797
(when a plaintiff alleges a violation of her First Amendment right to speak, a
plaintiff must prove: (1) the speech was protected by the First Amendment and
(2) the government excluded the plaintiff’s speech in a public or non-public
forum without justifying its actions to the standard required for the particular
forum). Blackboard serves as a “nonpublic forum,” to which EKU may control
access “based on subject matter and speaker identity so long as the distinctions
drawn are reasonable in light of the purpose served by the forum and are
viewpoint neutral.” Kincaid, 236 F.3d at 348 (internal citations omitted). Here,
only those particular individuals enrolled in Garrison’s PLS 326 class were

Neither could a jury conclude that McBrearty was denied due
process by Garrison from the undisputed material facts presented.
The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property.” Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 570 (1972). McBrearty asserts no
cognizable deprivation of procedural due process. She was not
disciplined for her post on the Blackboard discussion board, so
there could be no process denied under the disciplinary policy and
procedures to which students are entitled. To the extent that
McBrearty alleges that she was deprived of a substantive liberty
or

property

interest

because

she

lost

future

employment

opportunities as a facilitator for on-line courses at EKU, the
situation does not implicate due process. Impairment of future
government employment opportunities due to injury to reputation is

permitted access to the discussion thread at issue. Garrison provided no
“general access” to these discussions; rather, her students had to obtain
permission to access the forum by way of enrolling in the course.
“[A] speaker may be excluded from a nonpublic forum if he wishes to
address a topic not encompassed within the purpose of the forum, see Lehman v.
City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), or
if he is not a member of the class of speakers for whose especial benefit the
forum was created, see Perry Education Assn., supra[.]” Cornelius, 473 U.S. at
806. Garrison was free to preserve the forum for its intended purposes as long
as the regulation of speech was reasonable and did not attempt to suppress
speech due to the speaker’s viewpoint. See Perry Educ. Ass’n v. Perry Local
Educators Ass’n, 460 U.S. 37, 46 (1983). The reasonableness of the restriction
of speech in a nonpublic forum “must be assessed in the light of the purpose of
the forum and all the surrounding circumstances.” Cornelius, 473 U.S. at 809.
The evidence at bar demonstrates that Garrison removed McBrearty’s thread
because it was, ultimately, off-topic for the forum and, thus, disruptive of
the online class forum, not because it was objectionable. No reasonable jury
could determine that this violated McBrearty’s First Amendment right to free
speech.

not a protected liberty interest for purposes of due process. See
Siegert v. Gilley, 500 U.S. 226, 234 (1991) (alleging impairment
of future employment opportunities does not state a claim for
denial of a constitutional right when former employee brought §1983
suit against his former employer for informing his future employer
that he was unfit for the position); but see Paul v. Davis, 424
U.S. 693, 706 (1976) (holding that injury to reputation may deprive
a person of a liberty interest when the injury is combined with
the impairment of “some more tangible” government benefit such as
the “loss of government employment.”). Here, even if McBrearty
could demonstrate that Professor Garrison had actually precluded
her from potential employment at EKU, McBrearty has not been
deprived of a protected liberty or property interest. Accordingly,
her claim for violation of due process under the Fourteenth
Amendment fails as a matter of law.
IV.
For all of the reasons explained above, Plaintiff McBrearty’s
claims against Defendant Garrison fail.
Accordingly, IT IS ORDERED:
(1)

that Defendant Garrison’s Motion for an Extension of

Time [DE 41] to file a Response to Plaintiff McBrearty’s Motion
for Summary Judgment is GRANTED;
(2)

Plaintiff McBrearty’s Motion for Summary Judgment [DE

40] is DENIED;

(3)

Defendant Carole Garrison’s Motion for Summary Judgment

[DE 44] is GRANTED.
This the 9th day of January, 2018.