UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT J. SCALLET,
Plaintiff-Appellant,

v.

JOHN ROSENBLUM; CLYDE RAY SMITH;
ROBERT HARRIS,
Defendants-Appellees,

and
                                                               No. 96-1138
THOMAS JACKSON; DANIEL HALLAHAN;
JOHN CASTEEN; JOHN BUCKMAN;
RECTOR AND BOARD OF VISITORS OF
THE UNIVERSITY OF VIRGINIA,
Defendants.

AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS,
Amicus Curiae.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-94-16-C)

Argued: October 29, 1996

Decided: January 29, 1997

Before HALL and LUTTIG, Circuit Judges, and
BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Edward Arthur Scallet, LEBOEUF, LAMB, GREENE &
MACRAE, L.L.P., Washington, D.C., for Appellant. Earl Carlyle
Dudley, Jr., Associate General Counsel/Special Assistant Attorney
General, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia, for
Appellees. ON BRIEF: Michael E. Rosman, CENTER FOR INDI-
VIDUAL RIGHTS, Washington, D.C., for Appellant. Lee E. Good-
man, Associate General Counsel/Special Assistant Attorney General,
UNIVERSITY OF VIRGINIA, Charlottesville, Virginia, for Appel-
lees. Jerrold J. Ganzfried, Kerry Adams, Joseph A. Micallef, Timothy
K. Armstrong, HOWREY & SIMON, Washington, D.C.; Michael A.
Olivas, Ann H. Franke, AMERICAN ASSOCIATION OF UNIVER-
SITY PROFESSORS, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert J. Scallet, a former writing instructor at the Darden Gradu-
ate School of Business Administration of the University of Virginia,
appeals an order of the district court granting summary judgment in
favor of Appellees, the dean and two associate deans at Darden, on
his claim that his contract was not renewed in order to suppress his
exercise of the right of free speech under the First Amendment. We
affirm.

I.

Scallet was a non-tenured instructor in Darden's analysis and com-
munications course ("A&C"), a required writing and public speaking
course for all first-year business students. While Scallet taught at Dar-
den, it is undisputed that he was a strong advocate of diversity both

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in and out of the classroom. From 1988 until the spring of 1991, Scal-
let served as "course head" for the A&C department. However, in
response to a number of complaints lodged against Scallet describing
his confrontational style and strained working relationships with other
members of the writing faculty, he was removed from the course head
position but remained on the faculty as a writing instructor. Following
this decision, Appellees continued to receive complaints about Scal-
let's lack of collegiality, the environment of fear and distrust he cre-
ated which led to disruptions in the department, and other conduct
which the district court characterized as bordering on sexual harass-
ment.

Appellees met with all of the members of the writing faculty prior
to deciding whether to renew Scallet's contract for the 1992-93 year.
At this meeting, the faculty members collectively expressed concerns
about their ability to continue working with Scallet. Allegedly as a
result of these concerns and the numerous prior complaints, Appellees
decided not to renew Scallet's contract.

Scallet commenced this action in district court under 42 U.S.C.
§ 1983. Following discovery, and after extensive briefing and argu-
ment, the district court entered summary judgment for Defendants/
Appellees on Scallet's First Amendment claim, which is the only
issue on appeal.

Applying the balancing test of Pickering v. Board of Educ., 391
U.S. 563 (1968), the district court found that Scallet's in-class advo-
cacy of diversity through the materials he taught in class related to
matters of public concern. However, the court concluded that it was
not protected by the First Amendment because it was disruptive, and
because the Darden administration's interest in controlling its curricu-
lum outweighed Scallet's interest in his classroom speech. To the
extent that Scallet engaged in any clearly protected speech, such as
posting newsclippings and cartoons around his office door and speak-
ing out in faculty meetings, the district court found that such speech
was not the "but for" cause of the non-renewal of his contract "in light
of the compelling and substantial evidence of Scallet's misconduct
and inability to work with his colleagues in the A&C Department."
Scallet v. Rosenblum, 911 F. Supp. 999, 1019 (W.D. Va. 1996).

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II.

The record is clear that the speech which Scallet contends is pro-
tected was not the cause of Appellees' failure to renew his contract.
Specifically, answers to interrogatories and depositions of faculty
members establish that numerous complaints were made to each
Appellee during the years leading up to the non-renewal decision.
These complaints described a confrontational style that made the
other writing teachers feel physically and emotionally threatened, and
that in some cases did, as the district court said, border on sexual
harassment. The record reveals that some of these complaints led to
Scallet's removal from the course head position a year before the non-
renewal decision. After his demotion, faculty members continued to
complain about the same conduct and Appellees personally observed
strained relationships in the writing department. Based on the numer-
ous complaints and personal observations, Appellees made the deci-
sion not to renew Scallet's contract.

We agree with the district court that Scallet has failed to raise gen-
uine issues as to the actual reason for his non-renewal which require
resolution by the trier of fact. A reasonable juror could not find that
Appellees retaliated against Scallet for his in-class speech, his advo-
cacy in faculty meetings, or because of the posted articles and car-
toons outside his office.

III.

Assuming, arguendo, that Scallet's interest in some academic
speech was constitutionally protected, Appellees are still entitled to
summary judgment on the basis of qualified immunity. Government
officials are immune from Section 1983 liability for money damages
as long as "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, 817-19 (1982). The dis-
trict court recognized that "the Supreme Court . . . has never spoken
to the level of First Amendment protection afforded teachers' in-class
speech," and indicated that it was "called upon in this case to strike
a difficult balance between important, competing interests." Scallet,
911 F. Supp. at 1009, 1015.

                     4
It is evident that the parameters of the protection afforded to a uni-
versity professor's academic speech were not clearly defined in May
1992 and are not clearly defined today. When the unlawfulness of a
particular action is not apparent to a reasonable person in light of pre-
existing law and legitimate questions exist concerning whether the
official violated the plaintiff's constitutional rights, the official is pro-
tected by qualified immunity. Tarantino v. Baker , 825 F.2d 772, 774-
75 (4th Cir. 1987). In Dimeglio v. Haines, 45 F.3d 790, 805 (4th Cir.
1995), we recognized that "it was, and is, not clear that when an indi-
vidual presents himself as speaking in his capacity as a public
employee, that his speech is protected." We went on to say that "only
infrequently will it be `clearly established' that a public employee's
speech on a matter of public concern is constitutionally protected,
because the relevant inquiry requires a `particularized balancing' that
is subtle, difficult to apply, and not yet well-defined." Id. at 806. In
view of the difficulty that federal courts themselves have had in grap-
pling with the concepts of academic freedom both as to the teacher
and the educational institution, three business school professors and
administrators not trained in the law could hardly be expected to rec-
ognize the contours of Scallet's rights.

AFFIRMED

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