Keating v. University of South Dakota et al

Filing 95

MEMORANDUM OPINION AND ORDER granting in part and denying in part 84 Motion for Summary Judgment. Signed by U. S. District Judge Lawrence L. Piersol on 9/30/13. (DJP)

Fn.ED
SEP 3 0 l013
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

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CHRISTOPHER KEATING,
CIV 04-4208
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-vs­
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MEMORANDUM OPINION
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UNIVERSITY OF SOUTH DAKOTA,
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AND ORDER
JAMES ABBOTT, ROYCE ENGSTROM, *
DONALD DAHLIN, MATTHEW MOEN, *
TIMOTHY HEATON, CHRISTINA
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KELLER, SOUTH DAKOTA BOARD
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OF REGENTS, MIKE ROUNDS,
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Defendants.
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Plaintift:

Pending before the Court is Defendants' motion for summary judgment, Docket 84. Plaintiff

Christopher Keating filed two responses in opposition to the motion, and Defendants have submitted
a reply brief. The summary judgment motion will be granted in part and denied in part for the reasons
set forth below.

DECISION

Rule 56(a) ofthe Federal Rules ofCivil Procedure provides that summary judgment shall be
entered "if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on a motion for
summary judgment, the Court is required to view the facts in the light most favorable to the non­
moving party and must give that party the benefit of all reasonable inferences to be drawn from the
underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party
bears the burden of showing both the absence of a genuine issue ofmaterial fact and its entitlement
to judgment as a matter oflaw. Fed. R. Civ. P. 56(c)(I); Anderson v. Liberty Lobby. Inc., 477 U.S.
242, 257 (1986). Once the moving party has met its burden, the non-moving party may not rest on

the allegations of its pleadings but must set forth specific facts, by affidavit or other evidence,
showing that a genuine issue ofmaterial fact exists. Fed. R. Civ. P. 56( c)( I); Anderson, 477 U.S. at

257; City ofMt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273-74 (8th Cir. 1988).

In the present case, Keating's employment contract with the University ofSouth Dakota was
not renewed based on his alleged lack of civility pursuant to the COHE agreement. Keating asserts
claims under 42 U.S.C. § 1983, contending that Defendants' actions deprived him of his right to
engage in free speech which is protected under the First Amendment to the United States
Constitution, and that the civility clause of the COHE agreement is unconstitutionally vague or
overbroad.

Defendants argue that the Eleventh Amendment affords them immunity from suit in federal
court, and they also assert that they are entitled to judgment on the merits ofKeating's claims even
if they are not entitled to immunity. The background and relevant facts which are recited in the
court's previous Memorandum Opinions, Dockets 43, 53 and 73, are not in dispute and will not be
repeated here. For ease ofreference, the email that led to the nonrenewal of Keating's contract will
be set forth below, along with the civility clause of the COHE agreement.

On April 24, 2004, Keating sent an email to Dr. Heaton. Keating describes the email as a
private email between Dr. Heaton, Dr. Keller and himself, which was shared with no one else, and
was in direct response to an email sent by Dr. Heaton to Keating. Docket 1 at p. 3. Keating's email
states, in part:
On the other hand, I did come to you with my problems and the result was
highly unsatisfactory. You came back and insisted that not only did I not have
anything to complain about, but everything except the price of corn futures was my
fault. We will ignore the fuct the two are mutually exclusive. How could I be at fault
for everything when you already concluded there was nothing wrong? You and Dr.
Keller took this matter out of the department and made it a school-wide problem.
You did nothing to address my problems except to tell me that I was essentially not
part of the department. You two then threatened me with false charges of sexual
harassment and stated in your letter that I had engaged in inappropriate behavior.

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I came to you with a problem and you made it infinitely worse. Your actions
have caused permanent damage to my relationship with the two of you. There is no
way I can trust you with another problem.
I cannot communicate with Dr. Keller because she is a lieing (sic),
backstabbing sneak. I ask her questions and she will not answer. She learns
important information and she withholds it. She keeps a secret file on me that she
pulls out to use against me. She then talks badly about me around campus.
Docket I at p. 2-3.

Keating's language was found to be in violation of the civility clause in the employment
contract between the University of South Dakota and its faculty, as represented by the Council of
Higher Education (COHE). Appendix G of the COHE Contract is entitled "Statement Concerning
Faculty Expectations." Docket 86 at ~ 2. The civility provision is contained within that Appendix
and is entitled "Civility in working with colleagues, staff members, students and others." Id. at ~ 3.

It provides:
Universities playa special role in preparing students to lead the complex social
organizations through which businesses and professions operate and through which
free people govern themselves. Students must be taught, and they must be shown
through the example given by institutional employees, that members of stable,
effective and prosperous social organizations observe norms ofconduct under which
all participants treat one another civilly and carry out their respective tasks in a
constructive and informed manner. Complex social organizations derive their strength
from the cooperation ofthose who participate in them. By virtue oftheir special role
in preparing future generations ofleaders, universities have a particular concern with
conduct that destroys the bonds of cooperation and common purpose on which
society rests by demeaning members ofthe community, and such conduct cannot be
tolerated in an institution whose very purpose is to shape the skills and conscience of
the rising generations.
Faculty members are responsible for discharging their instructional, scholarly
and service duties civilly, constructively and in an informed manner. They must treat
their colleagues, staff, students and visitors with respect, and they must comport
themselves at all times, even when expressing disagreement or when engaging in
pedagogical exercises, in ways that will preserve and strengthen the willingness to
cooperate and to give or to accept instruction, guidance or assistance.
Docket 87-1 at p. 2.

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I. Eleventh Amendment Immunity
The Eleventh Amendment of the United States Constitution provides that:
The Judicial power ofthe United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against anyone ofthe United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. Amend. XI. The Amendment has been interpreted to protect an unconsenting "State or
one of its agencies or departments" from suit in federal court by its own citizens as well as those of
another state. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The
Supreme Court has recognized two exceptions to the Eleventh Amendment immunity for the States
and their agencies.
While this immunity from suit is not absolute, we have recognized only two
circumstances in which an individual may sue a State. First, Congress may authorize
such a suit in the exercise of its power to enforce the Fourteenth Amendment-an
Amendment enacted after the Eleventh Amendment and specifically designed to alter
the federal-state balance. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49
L.Ed.2d 614 (1976). Second, a State may waive its sovereign immunity by consenting
to suit. Clarkv. Barnard, 108 U.S. 436, 447-448, 2 S.Ct. 878, 27 L.Ed. 780 (1883).

College Sav. Bankv. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).

A. University of South Dakota and Board of Regents
The University of South Dakota and the Board of Regents argue that they are arms ofthe
state and they have not waived their Eleventh Amendment immunity from suit in federal court. In
support of that argument, Defendants assert that the University of South Dakota is a state-funded
institution of higher learning. See SDCL §§ 13-51-4 (duty of Board of Regents to make
recommendations to state legislature regarding support ofinstitutions ofhigher education); 13-55E-l
(term "institution of higher education" includes any state-supported university). The Board of
Regents governs the University of South Dakota. See SDCL § 13-49-1 (control ofstate institutions
of higher education vested in Board of Regents). Members of the Board of Regents are appointed
by the Governor with the consent of the Senate. See id. An educational fund has been established

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in the state treasury to support the institutions ofhigher education under the jurisdiction ofthe Board
of Regents, see SDCL § 13-51-2, and the state treasury is to receive all funds arising from the
educational institutions governed by the Board of Regents, see SDCL § 13-53-15.

Keating counters that the Board of Regents is a political entity separate from the state
because, among other things, it can acquire property, see SDCL § 13-5IA-2, and issue bonds, see
SDCL § l3-51A-13. Keating contends that there are no state funds at risk from an adverse decision
in this case. According to Keating, the University of South Dakota, by extension, also does not
qualifY for immunity.

The Eighth Circuit and the South Dakota Supreme Court have held that the Board ofRegents
is a political subdivision ofthe state and, as such, is entitled to sovereign immunity, meaning that it
cannot be sued under § 1983. See Prostrollo v. Univ. o/S.D., 507 F.2d 775, 777 n. 1 (8th Cir. 1974)
("it is fundamental that the University ofSouth Dakota and the corporate body constituting the Board
of Regents, both political subdivisions ofthe state, may not be sued under the Civil Rights Act since
neither entity constitutes a 'person' within the meaning of § 1983") (citations omitted); Aase v. State,

S.D. Ed.

0/ Regents, 400 N.W.2d 269, 271

(S.D. 1987) (holding "that the Board of Regents is not

a person within the meaning of 42 U.S.C. § 1983 ... and may not be sued under that section")
(citations omitted); Kringen v. Shea, 333 N.W.2d 445, 446 (S.D. 1983) ("sue and be sued" clause
does not change Board of Regents' entitlement to sovereign immunity). Keating has not offered
information sufficient to contradict the holdings in these cases.

In addition, a case decided in the District ofSouth Dakota found that the South Dakota Board
ofRegents is an arm ofthe state and thus is immune from suit under the Eleventh Amendment. See

South Dakota Ed.

0/ Regents v. Hoops,

624 F.Supp 1179 (D.S.D. 1986) (analyzing the Board's

relationship with the state, including the Board's lack of financial autonomy). The Hoops case and
the statutes cited above show that funds to satisfY ajudgrnent against the Board of Regents in this
case would corne from the state's coffers, and Keating has offered no contrary argument. The court

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concludes that the Board of Regents is protected by the Eleventh Amendment from suits in federal
court.

The Board of Regents controls the University of South Dakota and, thus, the University is
also entitled to immunity. See Prostrollo, 507 F.2d at 777 n. 1 (reasoning that the University of
South Dakota, which the Board of Regents controls, cannot be sued under § 1983).

For these reasons, the Board of Regents and the University of South Dakota, as arms ofthe
state, are protected under the Eleventh Amendment from Keating's First Amendment free speech
claim seeking monetary damages, as well as his claim for an injunction against enforcement of the
civility clause. See Monroe v. Arkansas State University, 495 F.3d 591,594 (8th Cir. 2007) (states
and state agencies are entitled to Eleventh Amendment immunity from suits for any kind of relief,
including prospective injunctive relief and monetary damages). Defendants' motion for summary
judgment must be granted as to the Board of Regents and the University of South Dakota.

B. Individual Defendants
Defendants argue that the individually-named defendants, Abbott, Engstrom, Dahlin, Moen,
Heaton, Keller, and Governor Rounds, are entitled to Eleventh Amendment immunity. Officials of
a state entity entitled to Eleventh Amendment immunity are also entitled to Eleventh Amendment
immunity from claims for monetary damages against them in their official capacities. Will v. Mich.
Dep't ofState Police, 491 U.S. 58, 71 (1989). This is because a suit against a government official
in his or her official capacity is "another way of pleading an action against an entity of which an
officer is an agent." Monell v. Dep 't ofSocia I Services, 436 U.S. 658,690 n. 55 (1978). "[T]he real
party in interest in an official-capacity suit is the governmental entity and not the named official ...
." Hafer v. Melo, 502 U.S. 21, 25 (1991). On the other hand, the Eleventh Amendment does not
prevent a plaintiff from seeking damages from a state official if he sues the official in his or her
personal capacity. Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995). If
the complaint is silent as to the capacity in which the individual is sued, an official capacity suit is
assumed. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). As the Eighth

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Circuit has explained, public servants are entitled to proper notice that they may be exposed to civil
liability and damages. [d.

There is no dispute that Keating's complaint is silent as to the capacity in which the
individually-named defendants are sued. In his response to Defendants' motion for summary
judgment, Keating explains:
Plaintiff is asserting Defendants acted in their official capacities in a manner that
violated federal and Constitutional law outside the purview oftheir offices. Thus, the
complaint is against the Defendants in both their personal and official capacities.
Docket 89, p. 7. A statement made in response to a motion is not sufficient notice of a personal
capacity lawsuit. See Egerdahl, 72 F.3d at 620. Furthermore, allowing Keating to amend his
complaint to assert a personal capacity claim at this late stage of the litigation would be very
prejudicial to the defendants. For these reasons, defendants Abbott, Engstrom, Dahlin, Moen,
Heaton, Keller, and Governor Rounds are entitled to Eleventh Amendment immunity from Keating's
claims for monetary damages.

II. QuaHfied Immunity
Even ifKeating were allowed to amend his complaint to sue the individual defendants in their
personal capacities, the defendants would be entitled to qualified immunity because Keating was not
speaking on a matter of public concern.

In a § 1983 personal-capacity claim, the plaintiff seeks to hold a government official
personally liable for actions taken under the color oflaw. Clay v. Conlee, 815 F.2d 1164, 1169 (8th
Cir. 1987). A government official sued in his personal capacity may raise the defense of qualified
immunity. Under the doctrine of qualified immunity, state actors are protected from civil liability
when "their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known." Harlow v. Fitzgerald, 457 U. S. 800, 818 (1999).

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The Eighth Circuit explained that the qualified immunity inquiry is a two-step process: (I)
determiillng whether "plaintiffs have asserted a violation of a constitutional or statutory right"; and
(2) detennining whether ''that constitutional right was clearly established at the time that the plaintiffs
were discharged." Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000). A right is clearly established
if''the contours of the right [are] sufficiently clear that a reasonable official would understand that
what he is doing violates that right." Id. (internal quotation marks and citations omitted). With his
claim that Defendants violated his First Amendment right to freedom ofspeech, Keating has asserted
a violation of a constitutional right.

The second step in the qualified immunity inquiry is to detennine whether Keating's free
speech right was clearly established at the time his contract was not renewed. See Sexton, 210 F.3d
at 910. To detennine ifKeating's free speech right was clearly established, the court must detennine
whether his speech touched on matters of public concern. See id.

''Whether an employee's speech addresses a matter ofpublic concern must be detennined by
the content, form, and context" ofthe speech, and the speech must relate to some "matter ofpolitical,
social or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 147-48 (1983).
The Eighth Circuit has explained its interpretation of Connick's "public concern" requirement:
Where a public employee speaks out in public or in private on matters that relate
solely to the employee's parochial concerns as an employee, no first amendment
interests are at stake .... The focus is on the role the employee has assumed in
advancing the particular expressions: that 0 fa concerned public citizen, infonning the
public that the state institution is not properly discharging its duties, or engaged in
some way in misfeasance, malfeasance or nonfeasance; or merely as an employee,
concerned only with internal policies or practices which are of relevance only to the
employees ofthat institution.
Cox v. Dardanelle Public School Dist., 790 F.2d 668, 672 (8th Cir. 1986) (footnote and citations
omitted).

"The public concern test functions both to prevent every employee grievance from

becoming a constitutional case, and to protect a public employee's right as a citizen to speak on
issues of concern to the community." Tindle v. Caudell, 56 F.3d 966, 971 (8th Cir. 1995) (citing

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Connick, 461 U.S. at 146-47, 149). Statements that are purely job-related and statements dealing
with personnel matters generally are not protected speech. Buazard. v Meridith, 172 F.3d 546,548
(8th Cir. 1999); Shands v. City a/Kennett, 993 F.2d 1337, 1343 (8th Cir. 1993). "When focusing
on the employee's role, we consider whether the employee attempted to communicate the speech to
the public at large and the employee's motivation in speaking." Bausworth v. Hazelwood School
Dist., 986 F.2d 1197, 1198 (8th Cir. 1993).

In ruling on the motion for a preliminary injunction, this court held that Keating's speech does
not address a matter of public concern. Docket 43 at p. 10-11. Keating has not presented any
additional evidence or argument to change that determination. His allegations in the complaint that
the speech was in a private email between Drs. Heaton and Keller and himself, that it was shared with
no one else, and that it was in direct response to an email sent by Dr. Heaton, all support the court's
conc1usion that the speech is private. See Buazard, 172 F.3d at 549 (internal nature ofthe plaintiff's
statements and his role as employee in making the statements indicate speech was not a matter of
public concern). In addition, the content of the message conveyed by Keating's speech is one of
frustration relating to an individual personnel dispute or grievance, and the speech is directed at a
private effort rather than any effort to educate the public about the functioning of the University.
Simply put, Keating is complaining of a poor working relationship with his superiors and his speech
does not relate to a matter ofpolitical, social, or other concern to the community. Accordingly, even
ifKeating could sue the individually-named defendants in their personal capacities, they are entitled
to qualified immunity, which protects them from civil liability and damages for Keating's First
Amendment free speech c1aim, because Keating's constitutional right to free speech was not c1early
established.

III. Merits of Overbreadth and Vagueness Claims
Defendants acknowledge that Keating can seek prospective injunctive relief to abate a
continuing violation of federal law by a state official acting in his official capacity. Therefore,
although qualified immunity bars Keating from seeking damages against the individual defendants,
Keating can seek an injunction prohibiting them from enforcing the civility clause ifit is found to be
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overbroad or vague. See, e.g., Treleven v. University o/Minnesota, 73 F.3d 816, 819 (8th Cir. 1996)
(state's Eleventh Amendment immunity does not shield official from prospective injunctive relief);
Grantham v. Trickey, 21 F.3d 289,295 (8th Cir. 1994) (qualified immunity does not shield officials
from equitable relief). Defendants argue that they are entitled to summary judgment on the merits
of Keating's overbreadth and vagueness claims.

A. Overbreadth
Keating claims the civility clause is unconstitutionally overbroad because it bans and punishes
a broad range of speech, including that which is protected by the First Amendment. Defendants
respond that the civility clause has minimal, if any, impact on protected speech because it does not
prevent professors from commenting on any particular matter, including matters ofpublic interest as
citizens.

Rather, it only requires professors to be respectful while conducting themselves as

employees.

Overbroad restrictions on speech are those that sweep within their scope a "substantiaP
amount of constitutionally protected speech 'judged in relation to the statute's plainly legitimate
sweep." United States v. Stevens, 559 U.S. 460, 473 (2010) (a law maybe invalidated as overbroad
if "a substantial number of its applications are unconstitutional) (quoting Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442,449 n. 6 (2008»; see also Excalibur Grp., Inc. v. City
o/Minneapolis, 116 F.3d 1216, 1224 (8th Cir. 1997) ("To be facially invalidated under this doctrine,
the overbreadth of an ordinance affecting both conduct and pure speech must be both 'real' and
'substantial' in relation to its 'plainly legitimate sweep."') (quoting New York v. Ferber, 458 U.S.
747, 769-70 (1982». The overbreadth doctrine is "strong medicine" to be used "sparingly."
Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973).

Much ofthe language in the civility clause seeks to advise faculty members 0 fthe University's
ideals, but some language could chill speech that is protected by the First Amendment. Requiring
faculty members to discharge their duties "civilly," to treat one another "civilly" and with "respect,"
and prohibiting conduct that is "demeaning" to members of the community, could encompass
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protected speech. Mandating that faculty members express disagreement "in ways that will preserve
and strengthen the willingness to cooperate and to give or to accept instruction, guidance or
assistance" could hinder protected speech. For example, ifthe university determined that words used
by a professor to criticize the administration on matters ofpublic concern were uncivil, disrespectful,
demeaning or uncooperative, the professor might be punished by university officials for engaging in
speech that is constitutionally protected. 1 That possibility is not enough, however, to invoke the
overbreadth doctrine to strike down the civility clause. See, e.g., Tindle v. Caudell, 56 F.3d at 973
("[T]he ability to conceive of hypothetical problematic applications does not render the rules
susceptible to an over-breadth challenge.").

Invalidation is appropriate only if the policy is

substantially overbroad in relation to its "plainly legitimate sweep." Here, the application of the
civility clause to Keating's speech did not run afoul ofthe constitution, and the Court can envision
many other circumstances where the policy could be constitutionally applied to unprotected speech.
The Court concludes that the civility clause is reasonably interpreted as reaching substantially more
unprotected than protected speech. Any possible application ofthe civility clause to protected speech
in violation of the First Amendment "can still be remedied through as-applied litigation." Virginia
v. Hicks, 539 U.S. 113, 124 (2003).

Because Keating has failed to demonstrate that the civility clause's application to protected
speech is "substantial" relative to its constitutional applications, the court will decline to use the
"strong medicine" of overbreadth to invalidate the clause, and Defendants are entitled to summary
judgment on Keating's overbreadth claim.

IThe Eighth Circuit has held that teachers' speech can be protected even if it is critical of
administrative policies and practices. See, e.g., Cox v. Dardanelle Sch. Dist., 790 F.2d 668, 673 (8th
Cir. 1986) (teacher's speech criticizing her school district's personnel policies touching upon matters
that affected the educational functioning ofthe school were matters ofpublic concern entitled to First
Amendment protection); Lewis v. Harrison School Dist. No.1, 805 F .2d 310, 316 (8th Cir. 1986)
(principal's speech to school board criticizing superintendent's decision to transfer principal's wife
from high school to junior high was matter ofpublic concern).
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B. Vagueness
Keating argues that prohibiting speech considered to be "uncivil" without a definition ofwhat
constitutes ''uncivil'' renders the civility clause unconstitutionally vague. According to Keating, the
term ''uncivil'' fails to give fair notice as to the behavior which is prohibited and fails to provide
standards for officials enforcing the policy. Keating further asserts that a person of common
intelligence reading the policy would not be put on notice ofthe prohibited conduct.

Defendants respond that the civility clause is not unconstitutionally vague even though it does
not define the term ''uncivil'' According to Defendants, the civility clause is part ofan agreement that
establishes expectations for professors, as employees, to conduct themselves civilly, in a manner that
is not demeaning.

Defendants say, "The parameters of acceptable behavior are reasonably

ascertainable by reviewing the clause as a whole in the context ofit being one part ofthe employment
agreement." Docket 88 at p. 19.

The Eighth Circuit has held that, "[t]o 'survive a vagueness challenge, a statute must give the
person of ordinary intelligence a reasonable opportunity to know what is prohibited and provide
explicit standards for those who apply the statute. '" United States v. Dinwiddie, 76 F.3d 913, 924
(8th Cir. 1996) (quoting Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689 (8th Cir.
1992)).

The Eighth Circuit further explained:
A vague regulation is constitutionally infirm in two significant respects. First, the
doctrine ofvagueness "incorporates notions offair notice or warning," Goguen, 415
U.S. at 572, 94 S.C!. at 1247, and a regulation ''violates the first essential of due
process o flaw" by failing to provide adequate notice 0 fprohibited conduct. Connally
v. General Constr. Co., 269 U.S. 385, 391,46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)
(citations omitted). In short, a regulation is void-for-vagueness if it "forbids or
requires the doing ofan act in terms so vague that [persons] of common intelligence
must necessarily guess at its meaning and differ as to its application.... " Id. Second,
the void-for-vagueness doctrine prevents arbitrary and discriminatory enforcement.
Goguen, 415 U.S. at 573, 94 S.Ct. at 1247. "A vague law impermissibly delegates
basic policy matters to policemen, judges, and juries for resolution on an ad hoc and

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subjective basis .... " Grayned v. City ofRockford, 408 U.S. 104, 108-109,92 S.Ct.
2294, 2299, 33 L.Ed.2d 222 (1972).

Stephenson v. Davenport Community School District, 110 F.3d 1303, 1308 (8th Cir. 1997).

The rule in question fails in both respects. It is an aspirational statement but it forbids acts
in tenns so vague that persons must necessarily guess at the meaning ofthe rule and differ as to its
application. "Civilly" is not defined. What may not be viewed as "civil" by one person may only be
spirited speech to another person in an academic setting. There is no fair notice or warning from the
rule ofproscribed conduct that could, for example, lead to the loss ofone's employment. Secondly,
the rule in question does not provide explicit standards for those who apply the rule. Such explicit
standards can prevent arbitrary and discriminatory enforcement. 2 There are no such explicit standards
in the present rule.

Freedom 0 fthought and speech are the hallmarks 0 fa University. Where there are restrictions
upon free speech in such an institution, there must be some specific guidance to both the speakers and
the rule enforcers on the limitations on free speech. This civility rule is unconstitutionally vague for
a university. 3 Accordingly,
IT IS ORDERED that Defendants' motion for summary judgment, Docket 84, is
granted except that declaratory judgment is granted in favor of the Plaintiff and
against the individually-narned Defendants to the extent that the portion ofAppendix
G "Statement Concerning Faculty Expectations" of the COHE Contract entitled
"Civility in working with colleagues, staff members, students and others" is
unconstitutional for its vagueness. Summary judgment is granted in favor of the

2There was no finding of arbitrary and discriminatory enforcement in this case.
3The rules applicable to police officers in Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995) were
more specific than the undefined civility requirement ofthe University. In addition, the Tindle court
in finding the police department rules under which the office was disciplined to not be
unconstitutionally over broad or vague, observed that "Because police departments function as
para-military organizations, their members may be subject to stringent rules and regulations that could
not apply to other government agencies." Tindle at 973.
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Defendants as to the remainder ofthe declaratory judgment claims and as to all other
claims.

(,l,
Dated this~ ;ay of September, 2013.

BY= cPlilla.-­
wrence L. Piersol
United States District Judge

ATTEST:

JOSEP~'5LERK
BY:

(SEAL)

rd0-4v
DEPUTY

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