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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                       Fifth Circuit

                                                                      FILED
                                 No. 18-30148                     March 22, 2019
                                                                   Lyle W. Cayce
                                                                        Clerk
TERESA BUCHANAN,

             Plaintiff - Appellant

v.

F. KING ALEXANDER; DAMON ANDREW; A. G. MONACO; GASTON
REINOSO,

             Defendants - Appellees




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
WIENER, Circuit Judge
      Plaintiff-Appellant Dr. Teresa Buchanan (“Dr. Buchanan”) was fired
from her tenured professorship by the Board of Supervisors (“the Board”) of
Louisiana State University and Agricultural and Mechanical College (“LSU”)
in June 2015. In January 2016, Dr. Buchanan filed the instant lawsuit against
(1) F. King Alexander (“President Alexander”), President and Chancellor of
LSU; (2) Damon Andrew (“Dean Andrew”), Dean of the College of Human
Sciences and Education at LSU; (3) A.G. Monaco (“Vice Chancellor Monaco”),
Vice Chancellor of the Office Human Resource Management at LSU; and (4)
Gaston Reinoso (“Director Reinoso”), Director of the Office of Human Resource
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Management and Executive Director of Equal Employment Opportunities at
LSU (collectively “Defendants”). Dr. Buchanan alleged (a) that Defendants
violated her First and Fourteenth Amendment right to free speech and
academic freedom (the “as-applied challenge”), (b) that Defendants violated her
Fourteenth Amendment procedural and substantive due process rights, and (c)
a facial challenge to LSU’s sexual harassment policies (the “facial challenge”).
Dr. Buchanan sought reinstatement and declaratory and injunctive relief. On
cross-motions for summary judgment, the district court granted Defendants’
motion and dismissed Dr. Buchanan’s claims. Dr. Buchanan now appeals that
decision.
                               I.    FACTS AND PROCEEDINGS
   A. Factual Background
       Before she was fired, Dr. Buchanan was an associate professor at LSU
with tenure. She taught in the Early Childhood Program for teacher education.
In November 2013, LSU received a complaint from the superintendent of a
local public school district regarding Dr. Buchanan’s “professionalism and her
behavior” when she visited schools in his district. LSU also received complaints
from some of Dr. Buchanan’s students regarding her classroom behavior. One
student complained about Dr. Buchanan’s comments regarding the student’s
sexual relationship with her fiancé. 1 Another student complained that Dr.
Buchanan recorded her crying during an assessment team meeting. 2 LSU had
received a letter in 2012 from a group of students complaining that Dr.



       1 “According to Student 1: ‘Dr. Buchanan had offered them condoms, had told them it
was unacceptable to become pregnant. And that if you chose to become a mother, that your
grades would suffer for that. She told them . . . enjoy the sex while the sex is – good. If you’re
dating – if you’re dating, make sure the sex is good, something along those lines.’” Dr.
Buchanan further told the student that her fiancé was “supportive now while the sex is good,
but just wait until you’re married five years.”
       2 This student claimed that Dr. Buchanan was aggressive during the meeting and

yelled at her. The student stated that she felt attacked.
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Buchanan made offensive classroom comments, such as (1) “a woman is
thought to be a dike if she wears brown pants”; (2) “it was a choice to be in the
program and it was not the fault or problem of the professors if any of us chose
to be mommies or wives and not to expect to get an A in the class”; and (3) use
of “extreme profanity on a regular basis.”
      These complaints were reported to Associate Dean Jennifer Curry
(“Dean Curry”) who discussed them with Dr. Earl Cheek (“Dr. Cheek”),
Director of the College of Education. After learning of these incidents, Dean
Andrew directed Dean Curry to gather the complaints; he then consulted with
Human Resources. 3 In December 2013, Dean Andrew told Dr. Buchanan that
she would be removed from the classroom during a human resources
investigation. Director Reinoso investigated to determine whether Dr.
Buchanan had violated LSU policies, interviewed witnesses, and wrote a
report. Dean Andrew reviewed Director Reinoso’s report and recommended
appointment of a Faculty Senate Grievance Committee (“Faculty Committee”)
under LSU’s Policy Statement-104 for Dismissal for Cause of Faculty. In
January 2014, Dr. Buchanan met with Director Reinoso and other human
resources managers to discuss the complaints.
      In May 2014, Director Reinoso sent a memorandum to Dr. Buchanan
which stated that he found her “actions and behavior . . . inappropriate,
unwelcome, and a direct violation of the University’s Policy Statements on
Sexual Harassment, PS-73 and PS-95” and her “reported communication style
with students, faculty, and outside administrators . . . to be inappropriate.” In
June 2014, Dean Andrew met with Dr. Buchanan to discuss Director Reinoso’s
report, and they subsequently communicated about the report in writing. In



      3 While gathering the complaints, Dean Curry was informed that Dr. Buchanan “was
no longer authorized to be on any Iberville Parish school campus.”
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July 2014, Dean Andrew recommended to Provost Stuart Bell that Dr.
Buchanan be dismissed for cause. Provost Bell then requested and impaneled
a Faculty Committee.
      In March 2015, the Faculty Committee held a lengthy hearing regarding
Dr. Buchanan’s classroom behavior. The Faculty Committee concluded that
Dr. Buchanan had violated LSU’s sexual harassment policies, PS-73 and PS-
95, “through her use of profanity, poorly worded jokes, and sometimes sexually
explicit ‘jokes.’” The Committee also found that Dr. Buchanan had created a
“hostile learning environment.” The Committee recommended censure.
      In April 2015, despite the Faculty Committee’s censure recommendation,
President Alexander informed Dr. Buchanan that he was going to recommend
to the Board that she be dismissed for cause and violations of LSU’s policies
and the Americans with Disabilities Act (“ADA”). 4 Dr. Buchanan appealed this
recommendation and addressed the Board. The Board fired Dr. Buchanan in
June 2015.
   B. Procedural Background
      Dr. Buchanan filed this lawsuit after she was fired. The parties filed
cross-motions for summary judgment. The district court denied Dr.
Buchanan’s motion and granted Defendants’ motion, holding that: (1) for
purposes of these Defendants’ qualified immunity, liability for retaliation in
violation of the First Amendment based on a defendant’s merely causing an
adverse employment action was not clearly established, (2) there was no
evidence of a violation of Dr. Buchanan’s First Amendment right to academic
freedom, (3) LSU’s sexual harassment policies were not facially overbroad, (4)
LSU’s sexual harassment policies as applied to Dr. Buchanan did not violate


      4  The Faculty Committee also investigated whether Dr. Buchanan violated the ADA
by revealing a student’s medical information to other students. The Committee found
insufficient evidence to establish an ADA violation.
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                                      No. 18-30148
her First Amendment rights, and (5) Defendants did not violate Dr.
Buchanan’s right to procedural due process. 5 Dr. Buchanan now appeals the
district court’s denial of her facial and as-applied challenges to LSU’s sexual
harassment policies and the district court’s holdings that Defendants are not
personally liable.
                                II.   LAW AND ANALYSIS
   A. As-Applied Challenge
       When a litigant brings both as-applied and facial challenges, we
generally decide the as-applied challenge first because it is the narrower
consideration. 6 The Fifth Circuit reviews summary judgments de novo 7 and
cases raising First Amendment issues by examining the whole record. 8
       The Supreme Court has established that academic freedom is “a special
concern of the First Amendment, which does not tolerate laws that cast a pall
of orthodoxy over the classroom.” 9 Accordingly, “classroom discussion is
protected activity.” 10 However, even this protection has limits: Students,
teachers, and professors are not permitted to say anything and everything
simply because the words are uttered in the classroom context. 11


       5 Buchanan v. Alexander, 284 F. Supp. 3d 792 (M.D. La. 2018).
       6 Serafine v. Branaman, 810 F.3d 354, 362 (5th Cir. 2016).
       7 MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003), abrogated on

other grounds by Crowell v. Shell Oil Co., 541 F.3d 295 (5th Cir. 2008).
       8 Denton v. Morgan, 136 F.3d 1038, 1042–43 (5th Cir. 1998).
       9 Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).
       10 Kingsville Indep. Sch. Dist. v. Cooper, 611 F.2d 1109, 1113 (5th Cir. 1980).
       11 See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (holding that

student could not claim First Amendment protection for offensively lewd and indecent
speech); Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986) (holding that professor had no First
Amendment right to use profane language in the classroom). In his book, Democracy,
Expertise, and Academic Freedom, Robert C. Post, Yale Law Professor and former Dean of
Yale Law School and general counsel for the AAUP, discusses the limits of First Amendment
academic freedom. He notes that the value of academic freedom depends on universities
holding professors to professional standards in contrast with the traditional First
Amendment value of the free marketplace of ideas. Therefore, “[t]he right question for courts
to ask about academic freedom is how to fashion doctrine that best protects the ‘freedom of
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          Public university professors are public employees. To establish a § 1983
claim for violation of the First Amendment right to free speech, they must show
that (1) they were disciplined or fired for speech that is a matter of public
concern, and (2) their interest in the speech outweighed the university’s
interest in regulating the speech. 12 The first question, asking whether the
professor’s speech is protected as a matter of public concern, is a question of
law. 13
                The inquiry into whether Plaintiff’s interests in speaking
          outweigh the College’s interests in regulating Plaintiff’s speech is
          a factual determination conducted under the well known
          Pickering[-Connick] balancing test. . . . If Plaintiff’s interests in the
          prohibited speech outweigh the College’s interests, then Plaintiff’s
          First Amendment rights have been violated. . . . If the First
          Amendment violation was a substantial or motivating factor in
          Defendants’ disciplinary action against Plaintiff, Defendants may
          present evidence that they would have disciplined Plaintiff in the
          absence of his protected conduct. . . . However, if Plaintiff’s speech
          does not involve a matter of public concern, it is unnecessary for
          the court to scrutinize the reason for the discipline. 14

          If Dr. Buchanan did not speak as a citizen on a matter of public concern,
then she has no First Amendment claim for LSU’s response to her speech. 15
“[W]hether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed



thought, of inquiry . . . of the academic profession.’” Robert C. Post, Democracy, Expertise,
and Academic Freedom: A First Amendment Jurisprudence for the Modern State 67, 80 (2012)
(quoting the 1915 Declaration of Principles on Academic Freedom and Academic Tenure
reprinted in American Association of University Professors, Policy Documents and Reports
291-301 (9th ed. 2001)).
       12 See Connick v. Myers, 461 U.S. 138, 147–50 (1983); Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968); Martin, 805 F.2d at 584.
       13 Connick, 461 U.S. at 148 n.7; Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994).
       14 Bonnell v. Lorenzo, 241 F.3d 800, 810 (6th Cir. 2001) (citing Pickering, 391 U.S. at

568; Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Cir. 1995); Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977); Connick, 461 U.S. at 146).
       15 See Connick, 461 U.S. at 147–48.

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by the whole record.” 16 “Speech involves a matter of public concern when it
involves an issue of social, political, or other interest to a community.” 17 When
a public employee speaks in his capacity as an employee and on personal
matters, rather than in his capacity as a citizen on a matter of public interest,
his speech falls outside the protection of the First Amendment. 18 A mere
element of personal concern, however, does not prevent finding that an
employee’s speech as a whole includes a matter of public concern. 19
       We agree with the district court here that Dr. Buchanan’s use of
profanity and discussion of her sex life and the sex lives of her students was
not related to the subject matter or purpose of training Pre-K–Third grade
teachers. This court has held that, in the college classroom context, speech that
does not serve an academic purpose is not of public concern. 20 Dr. Buchanan
would rely on the Ninth Circuit’s holding in Cohen v. San Bernardino Valley




       16  Id. at 147–48.
       17  Adams v. Trustees of the Univ. of N.C.–Wilmington, 640 F.3d 550, 564 (4th Cir. 2011)
(quoting Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004)) (citing Connick,
461 U.S. at 146).
        18 Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir.

2000), abrogated on other grounds by Gibson v. Kilpatrick, 838 F.3d 476 (5th Cir. 2016) (citing
Connick, 461 U.S. at 147).
        19 Id. at 365.
        20 Martin, 805 F.2d at 585 (holding that a professor’s use of profanity to castigate his

students was not a matter of public concern because it served no academic purpose); see also
Bonnell, 241 F.3d at 820 (holding that a professor “may have a constitutional right to use
words such as ‘pussy,’ ‘cunt,’ and ‘fuck,’ but he does not have a constitutional right to use
them in a classroom setting where they are not germane to the subject matter”); Dambrot, 55
F.3d at 1190 (holding that “[a]n instructor’s choice of teaching methods does not rise to the
level of protected expression”); cf. Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 682 (6th Cir.
2001) (holding that a professor’s right to use vulgarity and racial slurs during analysis of the
historical use of oppressive and marginalizing language was protected speech); Kerr v. Hurd,
694 F. Supp. 2d 817, 842–43 (S.D. Ohio 2010) (holding that discussion and advocacy of a
medical technique during classroom instruction was a matter of public concern because it
was relevant to a national debate on best practices for delivering babies).
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College 21 that a university’s sexual harassment policy was “simply too vague
as applied . . . [because the professor’s] speech did not fall within the core region
of sexual harassment as defined by the Policy.” 22 Dr. Buchanan’s speech is
easily distinguished from Professor Cohen’s speech. In Cohen, the use of
profanity and discussion of controversial viewpoints was “at least tangentially
related” to teaching college-level English. 23 Here, the use of profanity and
discussion of professors’ and students’ sex lives were clearly not related to the
training of Pre-K–Third grade teachers. Dr. Buchanan’s speech was not,
therefore, a matter of public concern; we thus affirm the district court’s holding
that LSU’s policies did not violate the First Amendment as applied to Dr.
Buchanan because her speech was not protected.
   B. Facial Challenge
       “Generally, we ‘proceed to an overbreadth issue’ only if ‘it is determined
that the statute would be valid as applied.’” 24 Here, because Dr. Buchanan’s
as-applied challenge fails, we proceed to consideration of the facial overbreadth
challenge.
       Dr. Buchanan sued the wrong parties. The proper defendants to a facial
challenge are the parties responsible for creating or enforcing the challenged
law or policy. 25 In Jordahl v. Democratic Party of Virginia, the Fourth Circuit
held that the plaintiffs had failed to present a facial challenge. 26 Those


       21  92 F.3d 968 (9th Cir. 1996) (discussing discipline of a college professor for his use of
profanity, discussion of pornography, and assertion of other controversial viewpoints during
class discussion in a college-level English class).
        22 Id. at 972 (reasoning that the vagueness of the policy did not provide notice to the

professor that it would be applied to his “longstanding teaching style”).
        23 Buchanan, 284 F. Supp. 3d at 834.
        24 Serafine, 810 F.3d at 362–63 (quoting Bd. of Trs. v. Fox, 492 U.S. 469, 484–85

(1989)).
        25 See Jordahl v. Democratic Party of Va., 122 F.3d 192, 199 n.6 (4th Cir. 1997)

(reasoning that for a facial challenge to a state law, the proper party was the state rather
than the party seeking an injunction under the law).
        26 Id. at 199.

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plaintiffs had sued the Democratic Party of Virginia (“DPV”) alleging a
violation of their free speech rights after the DPV sought injunctions
“forbidding the plaintiffs from distributing [voter] guides.” 27 The appeals court
reasoned that, even though the DPV was the direct actor seeking enforcement
of state statutes and an injunction against plaintiffs, it was not the proper
party to a facial challenge. 28 Similarly, when professors or students challenge
a university’s policies, the proper defendant party is the university or
university board. 29
       Here, Dr. Buchanan has sued only employees and officials with
individual and limited roles in administration of LSU’s polices, but with no
ultimate authority to enforce them. She failed to sue the Board of Supervisors,
which is responsible for the creation and enforcement of the policies. 30 The
Board, therefore, is the only proper party defendant to a facial challenge to
LSU’s policies. 31 We therefore vacate the district court’s ruling on the facial



       27  Id. at 194.
       28  Id. at 194, 199 n.6.
        29 See e.g., DeJohn v. Temple Univ., 537 F.3d 301 (3rd Cir. 2008) (deciding graduate

student’s facial challenge to university’s sexual harassment policy brought against
university); Piggee v. Carl Sandburg Coll., 464 F.3d 667 (7th Cir. 2006) (deciding professor’s
challenge to college’s sexual harassment policy brought against college); Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001) (deciding students’ facial challenge to school
district’s anti-harassment policy brought against school district); Dambrot, 55 F.3d 1177
(deciding coach’s challenge to university’s harassment policy brought against university).
        30 The Louisiana Constitution grants the LSU Board of Supervisors the authority to

“supervise and manage” the school. La. Const. art. VIII, § 7. The Board of Supervisors’ Bylaws
state that the President establishes administrative and educational policies subject to the
direction and control of the Board. Bylaws, Board of Supervisors, LSU, LSU.edu (Dec. 12,
2018, 3:01 PM), https://lsu.edu/bos/docs/bylaws-adopted-2018-10-04.pdf. LSU PS-104 states
that a recommendation to dismiss a tenured faculty member for cause requires confirmation
by the Board.
        31 We distinguish this case from Esfeller v. O’Keefe, 391 F. App’x 337 (5th Cir. 2010)

(unpublished). In Esfeller, a student brought a facial challenge to LSU’s Student Code of
Conduct. The student sued the LSU Board of Supervisors, and the district court dismissed
the Board. On appeal his court held that the Code was not facially overbroad. There, the
plaintiff student did not appeal dismissal of the Board, and, unlike the policy in this case, the
university president had ultimate authority to enforce the Code.
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challenge and dismiss that claim for Dr. Buchanan’s has failure to sue the
proper party.
   C. Qualified Immunity
      We need not address the district court’s holding on qualified immunity
because Dr. Buchanan’s claims fail. We nevertheless affirm that all
Defendants are entitled to qualified immunity on her damages claims.
      The qualified immunity inquiry comprises two questions: (1) “whether
the defendant violated the plaintiff’s constitutional rights” and (2) whether
that right was clearly established. 32 “We now have discretion to skip the first
inquiry and resolve a case solely on clearly established grounds.” 33 Before this
court issued its 2018 opinion in Sims v. City of Madisonville, the law was
unsettled whether a nondecisionmaker defendant who only recommended that
a plaintiff be fired could be held liable for a § 1983 First Amendment claim 34:
             Although [Sims] clarif[ied] that Jett controls . . . , it provides
      no recourse to [Buchanan]. That is because of the second part of
      the qualified immunity inquiry, which requires a plaintiff to show
      that any violation of rights was clearly established at the time the
      conduct occurred. When [Buchanan] was terminated in [June
      2015] the inconsistency in our law on whether First Amendment
      liability can attach to a public official who did not make the final
      employment decision had not been resolved. . . . If judges have
      mixed up principles of . . . liability in this area and failed to
      recognize Jett as the controlling decision, [school] officials should
      not be expected to have a more nuanced understanding of section
      1983 law. 35

Although the district court did not discuss this unsettled matter of law in its
reasoning on qualified immunity, its holding that Defendants’ acts were




      32 Sims v. City of Madisonville, 894 F.3d 632, 638 (5th Cir. 2018).
      33 Id. (citing Pearson v. Callahan, 555 U.S. 223, 240 (2009)).
      34 Sims, 894 F.3d at 638, 640; Culbertson v. Lykos, 790 F.3d 608, 627 (5th Cir. 2015).
      35 Sims, 894 F.3d at 641.

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objectively reasonable considering clearly established law at the time was not
error.
                               III.   CONCLUSION
         The district court correctly concluded that Dr. Buchanan’s speech was
not protected by the First Amendment. The district court’s holding on the as-
applied challenge is AFFIRMED. On the facial challenge, Dr. Buchanan has
not sued the proper party. The district court’s holding on the facial challenge
is VACATED and Dr. Buchanan’s claim is DISMISSED on this alternate
ground.




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