                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-10-1998

Edwards v. California Univ PA
Precedential or Non-Precedential:

Docket 97-3285




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Recommended Citation
"Edwards v. California Univ PA" (1998). 1998 Decisions. Paper 191.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/191


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Filed August 10, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3285

DILAWAR M. EDWARDS, Ph.D.
Appellant

v.

CALIFORNIA UNIVERSITY OF PENNSYLVANIA;
JOHN PIERCE WATKINS, Ph.D., President;
NANCY Z. NELSON, Ed.D., Vice President for Academic
Affairs; WILLIAM BENEDETTI, Ed.D., Dean in their
official capacities; DAVID CAMPBELL, Chairperson,
Educational Studies Dept.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 91-01668)

Argued: March 13, 1998

Before: STAPLETON and ALITO, Circuit Judges,
and O'KELLEY, District Judge*

(Opinion Filed: August 10, 1998)



_________________________________________________________________
* Hon. William C. O'Kelley, United States District Judge for the Northern
District of Georgia, sitting by designation.
       CRAIG L. PARSHALL (Argued)
       Suite 202
       910 Princess Anne Street
       Fredericksburg, VA 22401

       EUGENE ORLANDO, JR.
       Orlando & Strahn
       5341 Perkiomen Avenue
       Reading, PA 19606

       Counsel for Appellant

       THOMAS F. HALLORAN, JR.
        (Argued)
       6th Floor
       Office of Attorney General of
        Pennsylvania
       564 Forbes Avenue
       Manor Complex
       Pittsburgh, PA 15219

       Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Appellant Dilawar M. Edwards, a tenured professor at the
California University of Pennsylvania, brought this action
pursuant to 42 U.S.C. S 1983, alleging that the University
and its officers ("the University") violated several of his
constitutional rights. Specifically, Edwards claimed that the
University deprived him of his rights to free speech, due
process, and equal protection by restricting his choice of
classroom materials, criticizing his teaching performance,
and suspending him with pay for a portion of one academic
term. In addition, Edwards alleged that the University
retaliated against him for filing this lawsuit.

Prior to trial, the district court dismissed Edwards's equal
protection claim and granted summary judgment in favor of
the University on Edwards's due process claim. The case
then went to trial on Edwards's First Amendment and
retaliation claims, and a jury returned a verdict for the

                               2
University. On appeal, Edwards assigns as error: 1) the
district court's First Amendment jury instruction; 2) the
district court's grant of summary judgment on his due
process claim; 3) the district court's dismissal of his equal
protection claim; 4) the district court's ruling that the
verdict was not against the great weight of the evidence;
and 5) the district court's decision not to permit a third
amended complaint. We affirm.

I.

During the time-period at issue in this case, Professor
Edwards taught a course at the University entitled
"Introduction to Educational Media" (IEM). Syllabi from the
early 1980s indicate that the IEM course initially focused
on how teachers can effectively use various classroom tools,
such as projection equipment, chalkboards, photographs,
and films. See App. I at 299-306. Later syllabi prepared by
Edwards, however, included a new emphasis on issues of
bias, censorship, religion, and humanism, and Edwards
listed numerous publications concerning these issues as
required or suggested reading. Id. at 307-37.

In May 1989, one of Edwards's students complained to
University officials that Edwards had used the IEM class to
advance religious ideas. On August 14, 1989, the
University's Vice President for Academic Affairs, Nancy
Nelson, wrote a letter to Edwards in which she outlined the
student's concerns and indicated that a meeting on the
issue would be held in the fall. Nelson met with Edwards
and other school officials to discuss the complaint and, on
November 28, 1989, Nelson wrote to Edwards and directed
that he "cease and desist" from using "doctrinaire
material[s]" of a religious nature. App. I at 366. Edwards
appealed this decision to the President of the University,
John Pierce Watkins, and the two exchanged letters
through July 1990. Watkins expressed his approval of
Nelson's actions and directed Edwards to avoid advancing
religious beliefs through his lectures and handouts. Dr.
Edwards continued to teach the IEM course during the
1991 and 1992 school years.

In 1992, Professor David Campbell was named chair of
the Education Department at the University. Upon

                               3
assuming this position, Campbell became concerned that
Edwards had "interjected something that didn't belong in
the [IEM] course[:] A distinct bias on religion and religious
questions." App. II, Trial Tr. 2/13/97, at 38. After
concluding that Edwards was teaching from a non-
approved syllabus, Campbell brought the issue to the
department faculty during the Spring 1993 term, and the
faculty voted to reinstate an earlier version of the IEM
syllabus. Relying on the earlier syllabus, Campbell revoked
certain book orders that Edwards had made for the Fall
1993 semester and, when Edwards objected, Campbell told
him that he could put the matter on the agenda for the
September 1993 faculty meeting. Campbell testified that
Edwards never asked that the matter be placed on the
meeting's agenda.

In the weeks prior to the Fall 1993 term, Professor
Edwards's schedule was rearranged, and he was assigned
to teach an additional course -- "Educational Tests and
Measurements" (ETM) -- that he had never taught.
Edwards was dissatisfied with the change, and Campbell
received complaints that Edwards failed to attend some of
his ETM classes and walked out of others. At the
September 1993 faculty meeting, Campbell and Edwards
engaged in an exchange in which Campbell called Edwards
an "embarrassment to the department" and made
comments to the effect that Edwards might be better suited
to a "fundamentalist college[ ]" than a "public university."
App. I at 391, 400. A non-verbatim account of the meeting
was distributed to all members of the Education
Department.

In response to the student complaints about Edwards's
ETM class, school administrators put together a packet of
materials that they wished to discuss with Edwards. The
administration scheduled a meeting for Monday, October
25, 1993, but apparently did not mail the packet to
Edwards until Friday, October 22, 1993. Upon arriving at
the meeting, Edwards stated that he had not received any
materials in the mail and he asked for additional time to
prepare. App. I at 408-10. At this point, Nancy Nelson
relieved Edwards of his duties, with pay, until he was ready
to discuss the University's concerns. Id. at 411. Edwards

                               4
remained suspended with pay for the remainder of the
semester but returned to the classroom for the Spring 1994
term to teach two ETM courses and one IEM course.

Edwards initially brought suit against the University in
September 1991, alleging violations of his First Amendment
free speech rights, his Fourteenth Amendment due process
rights, and his rights under the Establishment Clause. In
October 1991, Edwards filed an amended complaint which
included an equal protection claim. After his suspension in
1993, Edwards filed a second amended complaint which
contained a free speech claim, a retaliation claim, a due
process claim, and an equal protection claim. The district
court granted summary judgment on Edwards's due
process claim in January 1997, and the court denied
Edwards's motion for reconsideration in February 1997. On
February 11, 1997, the first day of trial, the district sua
sponte dismissed Edwards's equal protection claim for
failure to state a claim and denied Edwards's motion to file
a third amended complaint. The case then went to trial on
Edwards's First Amendment and retaliation claims.

Before submitting the case to the jury, the district court
held a conference on jury instructions and rejected much of
Edwards's proposed First Amendment instruction. After the
jury returned a verdict for the University, Edwards moved
for a new trial. The district court denied Edwards's motion,
and Edwards appealed.

II.

A.

Edwards first contends that the district court
inadequately instructed the jury on the issue of whether
the University violated his First Amendment rights by
restricting his "choice of curriculum materials and the
content and subjects of his classes." Appellant's Br. at 27.
Although Edwards agrees with the standard given by the
district court -- that the University had to show that its
actions were "reasonably related to a legitimate educational
interest," App. IV, Trial Tr. Feb. 25, 1997, at 26 -- Edwards
argues that the district court did not adequately explain

                                5
this standard and, thus, "permitted the jury to speculate on
the parameters of freedom of speech." Appellant's Br. at 24.
Specifically, Edwards contends that the district court failed
to provide guidance in the following four areas: 1) the
necessity of avoiding viewpoint discrimination; 2) the
strength of a professor's academic freedom rights; 3) the
correct legal standard regarding the discussion of religious
issues in public classrooms; and 4) the existence of a
professor's right to choose his curriculum materials absent
an official school policy.

We do not find it necessary to determine whether the
district court's instruction adequately defined the
"reasonably related to a legitimate educational interest"
standard because, as a threshold matter, we conclude that
a public university professor does not have a First
Amendment right to decide what will be taught in the
classroom. This conclusion is compelled by our decision in
Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172 (3d Cir.
1990), where we explained that "no court has found that
teachers' First Amendment rights extend to choosing their
own curriculum or classroom management techniques in
contravention of school policy or dictates." Id. at 1176.
Consistent with this observation, we concluded that
"[a]lthough a teacher's out-of-class conduct, including her
advocacy of particular teaching methods, is protected, her
in-class conduct is not." Id. (citation omitted).1 Therefore,
although Edwards has a right to advocate outside of the
classroom for the use of certain curriculum materials, he
does not have a right to use those materials in the
classroom. Accord Boring v. Buncombe County Bd. of Educ.,
_________________________________________________________________

1. Edwards interprets Bradley as holding that "in the absence of an
official existing school policy prohibiting" a professor from selecting
certain classroom materials, a professor has a First Amendment right to
choose his curriculum materials. See Appellant's Br. at 28. This
interpretation ignores: 1) the Bradley court's instruction that public
school teachers must abide by "school policy or dictates" when choosing
their curriculum, 910 F.2d at 1176 (emphasis added); 2) the court's
broad conclusion that a public school teacher's"in class conduct is not"
protected by the First Amendment, id.; and 3) the fact that the school in
Bradley, like the University here, took action without establishing an
official policy. Id. at 1174.

                               6
136 F.3d 364, 370 (4th Cir. 1998) (in banc) ("We agree . . .
that the school, not the teacher, has the right tofix the
curriculum."); Kirkland v. Northside Indep. Sch. Dist., 890
F.2d 794, 800 (5th Cir. 1989) ("Although the concept of
academic freedom has been recognized in our
jurisprudence, the doctrine has never conferred upon
teachers the control of public school curricula."). But see
Bishop v. Aronov, 926 F.2d 1066, 1075 (11th Cir. 1991)
(finding that a public university's restrictions on a
professor's in-class speech "implicate[d] First Amendment
freedoms").

Our conclusion that the First Amendment does not place
restrictions on a public university's ability to control its
curriculum is consistent with the Supreme Court's
jurisprudence concerning the state's ability to say what it
wishes when it is the speaker. The following passage from
Rosenberger v. University of Virginia, 515 U.S. 819 (1995),
addresses this issue in the university context:

       [W]hen the State is the speaker, it may make content-
       based choices. When the University determines the
       content of the education it provides, it is the University
       speaking, and we have permitted the government to
       regulate the content of what is or is not expressed
       when it is the speaker or when it enlists private entities
       to convey its own message. . . . It does not follow,
       however, . . . that viewpoint-based restrictions are
       proper when the University does not speak itself or
       subsidize transmittal of a message it favors but instead
       expends funds to encourage a diversity of views from
       private speakers. A holding that the University may not
       discriminate based on viewpoint of private persons
       whose speech it facilitates does not restrict the
       University's own speech, which is controlled by
       different principles.

Id. at 833-34. Since the University's actions in the instant
case concerned the "content of the education it provides,"
id. at 833, we find that the University was acting as
speaker and was entitled to make content-based choices in
restricting Edwards's syllabus.

Edwards's reliance on the principle of academic freedom

                               7
does not affect our conclusion that the University can make
content-based decisions when shaping its curriculum. The
Supreme Court has explained that "[a]cademic freedom
thrives not only on the independent and uninhibited
exchange of ideas among teachers and students, but also,
and somewhat inconsistently, on autonomous
decisionmaking by the academy itself." Regents of Univ. of
Michigan v. Ewing, 474 U.S. 214, 226 n.12 (citations
omitted). The "four essential freedoms" that constitute
academic freedom have been described as a university's
freedom to choose "who may teach, what may be taught,
how it shall be taught, and who may be admitted to study."
Regents of Univ. of California v. Bakke, 438 U.S. 265, 312
(1978) (opinion of Powell, J.) (quotations omitted). 2 In sum,
caselaw from the Supreme Court and this court on
academic freedom and the First Amendment compel the
conclusion that Edwards does not have a constitutional
right to choose curriculum materials in contravention of the
University's dictates. Accordingly, we affirm the district
court's decision not to grant a new trial on this issue.

B.

Edwards's second contention is that the district court
erred when it granted summary judgment for the University
on his procedural due process claim. The district court
initially ruled on this issue prior to trial, concluding that,
"because Edwards was suspended with pay, he cannot
prove that he was deprived of a property interest deserving
due process guarantees." App. I at 138. Edwards moved for
reconsideration on the ground that the district court's
opinion did not adequately consider whether he had been
deprived of a liberty interest. The district court denied
_________________________________________________________________

2. Edwards's contention that the Supreme Court has elsewhere defined
academic freedom as the "principle that individual instructors are at
liberty to teach that which they deem to be appropriate," Appellant's Br.
at 31, is incorrect. The case cited for this proposition, Edwards v.
Aguillard, 482 U.S. 578 (1987), reaches no such conclusion. Rather, the
passage relied upon by Edwards simply describes the conclusion of the
court of appeals in that case. Id. 586 n.6. At no point in Aguillard,
which
is an Establishment Clause case, does the Court define academic
freedom for purposes of the Free Speech Clause.

                               8
Edwards's motion, explaining that he had not "pleaded
facts sufficient to make out a liberty interest claim
regarding reputation." App. II, Feb. 12, 1997 Trial Tr. at 12.
We agree.

This court has previously held that "[s]tigma to
reputation alone, absent some accompanying deprivation of
present or future employment, is not a liberty interest
protected by the fourteenth amendment." Robb v. City of
Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984). See also
Strum v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987)
(explaining that the Supreme Court has required"both
damage to reputation and the extinguishment of
government employment as a predicate for due process
protection."). Since it is undisputed that Edwards remained
employed with pay at all times relevant to this case, his
claim is barred by our decisions in Robb and Strum. While
Edwards's temporary removal from class duties may have
further stigmatized him, this action does not constitute a
deprivation of employment. Therefore, we will affirm the
district court's grant of summary judgment on Edwards's
due process claim.

C.

Edwards next contends that the district court improperly
dismissed his equal protection claim. In making this
argument, Edwards places considerable reliance on facts
that came out at trial. See Appellant's Br. at 42; Appellant's
Reply Br. at 18. However, the district court dismissed
Edwards's equal protection claim prior to trial because
Edwards's counsel admitted that the second amended
complaint did not adequately allege an equal protection
violation. See App. II, Feb. 11, 1997 Trial Tr. at 9-10, 74-75.3
_________________________________________________________________

3. The relevant exchange between the district court and Edwards's trial
counsel, Jack Parson, proceeded as follows:

       The Court: What do you think you need to do to make out an
       equal protection claim, don't you have to show
       persons similarly situated were treated in a different
       manner because of participation in a protected class?

       Mr. Carson: That's the criteria.

                               9
Under these circumstances, Edwards is not entitled to
revive his equal protection claim on appeal.

D.

Edwards's final two contentions -- that the verdict was
against the great weight of the evidence and that he should
have been allowed to file a third amended complaint on the
first day of trial -- are both without merit. Accordingly, we
affirm the district court's resolution of both issues.

III.

In sum, we conclude: 1) that Professor Edwards does not
have a First Amendment right to choose classroom
materials and subjects in contravention of the University's
dictates; 2) that Edwards failed to state a procedural due
process liberty claim because he did not allege a
deprivation of employment; and 3) that the district court
properly dismissed Edwards's equal protection claim after
Edwards's own counsel conceded that the complaint failed
to adequately state such a claim. We find Edwards's
remaining arguments on appeal to be without merit.
Accordingly, we affirm. We emphasize that we only pass on
the narrow legal issues presented to us. Nothing in our
opinion should be read to mean that we condone all of the
conduct of the University officials that was revealed at trial.
_________________________________________________________________

       The Court:   Where's that allegation?

       Mr. Carson: In this amended complaint, it is not there, not
       specifically set out.

       The Court: This is the complaint. Okay. You are saying no equal
       protection argument in the second amended
       complaint?

       Mr. Carson: No, Your Honor.

       The Court:   There is none?

       Mr. Carson: No.

App. II, Feb. 11, 1997 Trial Tr. at 9-10.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               11
