April 4, 2019

Rights to free speech and, or, academic freedom not offended by requiring a candidate for a teaching position to demonstration his or her teaching skills


The petitioner [Plaintiff] in this action appealed the federal district court's dismissal of his claims that members of a hiring committee at a State University of New York campus discriminated against him based on his age and disability and violated his First Amendment rights to free speech and academic freedom to the United States Circuit Court of Appeals, Second Circuit. Plaintiff also challenged the constitutionality of 28 U.S.C. §1915, certain procedural rules established by the District Court Judge and alleged that the magistrate judge was biased against him and should have been recused.*

Assuming, but not deciding that Plaintiff's age and disability discrimination claims are cognizable under §1983, the Circuit Court said it must first determine if the facts alleged in Plaintiff's complaint “plausibly support” the following elements:

[a] Plaintiff is a member of a protected class;

[b] Plaintiff was qualified;

[c] Plaintiff suffered an adverse employment action; and

[d] Plaintiff demonstrated at least minimal support for the proposition that the employer was motivated by discriminatory intent.

The Circuit Court held that Plaintiff's complaint did not meet this minimal standard.

Although Plaintiff alleges that the other candidates that were offered the teaching positions for which he applied were younger and less-qualified than he, the court said that these conclusory allegations do not plausibly support a discrimination claim because Plaintiff [1] "has not pled the qualifications for the position, [2] whether his qualifications met those requirements, or [3] whether the other candidates’ qualifications met those requirements."

With respect to Plaintiff's allegation that the hiring committee gave him negative evaluations for his teaching demonstration in order to cover up its discriminatory animus, the Circuit Court said that such "negative evaluations that SUNY gave [Plaintiff] ... conveyed legitimate concerns that [Plaintiff's] teaching philosophy conflicted with the university’s curriculum and needs and equally legitimate concerns about [Plaintiff's] practical skills as a teacher." Further, said the court, Plaintiff's allegation that an elderly SUNY professor had created administrative difficulties by taking medical leave does not support an inference that these legitimate reasons for not offering Plaintiff the position were pretext for discrimination.

The court opined that (a) Plaintiff's claims did not plausibly support an inference that SUNY is liable for age discrimination and (b) his allegation that SUNY violated his First Amendment guarantees of free speech and academic freedom by requiring him to give a teaching demonstrations also failed. 

Recognizing that the First Amendment protects academic freedom, the Circuit Court explained that "a university may nonetheless place parameters on scholarship when the parameters protect the university’s legitimate interest in ensuring that teaching candidates can communicate ideas effectively," citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260, in which the Supreme Court noted that "schools may exercise some control over speech in schools if the school’s actions are 'reasonably related to legitimate pedagogical concerns.'”

Holding that SUNY did not violate Plaintiff's First Amendment rights to free speech or academic freedom by requiring him to perform a teaching demonstration as a candidate for a teaching position, the Circuit Court concluded that Plaintiff "has not satisfactorily pled" that any SUNY employees discriminated against him or violated his First Amendment rights and affirmed the district court's order dismissing his complaint.

* With respect to challenges to the district court’s procedure, the Circuit Court ruled that Plaintiff did not have standing to challenge either §1915’s constitutionality or the district judge’s individual practices because he had not suffered an injury because of the district court’s review of his complaint pursuant to §1915 or as the result of the district court’s pre-motion letter requirement. As to Plaintiff's motion to remove the magistrate judge, the motion was deemed moot and "otherwise fails on the merits because Plaintiff’s allegation that the magistrate was biased was impermissibly premised solely on adverse rulings."


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