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. e du/thir dc ir c uit_1998/191Filed 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 a t the California University of Pennsylvania, brought this action pursuant to 42 U.S.C. S 1983, alleging that the Uni versity and its officers ("the University") violated severa l of his constitutional rights. Specifically, Edwards claime d that the University deprived him of his rights to free speec h, due process, and equal protection by restricting his ch oice of classroom materials, criticizing his teaching perfo rmance, and suspending him with pay for a portion of one ac ademic term. In addition, Edwards alleged that the Univers ity retaliated against him for filing this lawsuit.

Prior to trial, the district court dismissed Edward s's equal protection claim and granted summary judgment in fa vor 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 f or the

2University. 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 d ue process claim; 3) the district court's dismissal of his equal protection claim; 4) the district court's ruling th at the verdict was not against the great weight of the evi dence; 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, Profe ssor 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 classro om tools, such as projection equipment, chalkboards, photogra phs, and films. See App. I at 299-306. Later syllabi pre pared by Edwards, however, included a new emphasis on issues of bias, censorship, religion, and humanism, and Edwar ds listed numerous publications concerning these issue s as required or suggested reading. Id. at 307-37.

In May 1989, one of Edwards's students complained t o 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, N ancy Nelson, wrote a letter to Edwards in which she outl ined the student's concerns and indicated that a meeting on the
issue would be held in the fall. Nelson met with Ed wards and other school officials to discuss the complaint and, on November 28, 1989, Nelson wrote to Edwards and dire cted 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 Univ ersity, John Pierce Watkins, and the two exchanged letters through July 1990. Watkins expressed his approval o f
Nelson's actions and directed Edwards to avoid adva ncing religious beliefs through his lectures and handouts . Dr. Edwards continued to teach the IEM course during th e 1991 and 1992 school years.

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

3assuming this position, Campbell became concerned t hat

Edwards had "interjected something that didn't belo ng in the [IEM] course[:] A distinct bias on religion and religious questions." App. II, Trial Tr. 2/13/97, at 38. Afte rconcluding that Edwards was teaching from a nonapproved syllabus, Campbell brought the issue to th e department faculty during the Spring 1993 term, and the faculty voted to reinstate an earlier version of th e IEM syllabus. Relying on the earlier syllabus, Campbell revoked
certain book orders that Edwards had made for the F all 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 th e meeting's agenda.

In the weeks prior to the Fall 1993 term, Professor Edwards's schedule was rearranged, and he was assig ned
to teach an additional course -- "Educational Tests and Measurements" (ETM) -- that he had never taught. Edwards was dissatisfied with the change, and Campb ell received complaints that Edwards failed to attend s ome of
his ETM classes and walked out of others. At the September 1993 faculty meeting, Campbell and Edward s engaged in an exchange in which Campbell called Edw ards an "embarrassment to the department" and made comments to the effect that Edwards might be better suited to a "fundamentalist college[ ]" than a "public uni versity." App. I at 391, 400. A non-verbatim account of the m eeting
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 pac ket of materials that they wished to discuss with Edwards. The administration scheduled a meeting for Monday, Octo ber 25, 1993, but apparently did not mail the packet to Edwards until Friday, October 22, 1993. Upon arrivi ng at the meeting, Edwards stated that he had not receive d any
materials in the mail and he asked for additional t ime to prepare. App. I at 408-10. At this point, Nancy Nel son relieved Edwards of his duties, with pay, until he was ready to discuss the University's concerns. Id. at 411. E dwards

4remained suspended with pay for the remainder of th e

semester but returned to the classroom for the Spri ng 1994

term to teach two ETM courses and one IEM course.

Edwards initially brought suit against the Universi ty in September 1991, alleging violations of his First Am endment free speech rights, his Fourteenth Amendment due pr ocess rights, and his rights under the Establishment Clau se. In October 1991, Edwards filed an amended complaint wh ich included an equal protection claim. After his suspe nsion in 1993, Edwards filed a second amended complaint whic h contained a free speech claim, a retaliation claim, a due process claim, and an equal protection claim. The d istrict court granted summary judgment on Edwards's due process claim in January 1997, and the court denied Edwards's motion for reconsideration in February 19 97. On February 11, 1997, the first day of trial, the dist rict sua sponte dismissed Edwards's equal protection claim f or failure to state a claim and denied Edwards's motio n to file a third amended complaint. The case then went to tr ial on
Edwards's First Amendment and retaliation claims.

Before submitting the case to the jury, the distric t court held a conference on jury instructions and rejected much of Edwards's proposed First Amendment instruction. Aft er 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 wh ether the University violated his First Amendment rights by restricting his "choice of curriculum materials and the content and subjects of his classes." Appellant's B r. at 27. Although Edwards agrees with the standard given by the district court -- that the University had to show t hat its actions were "reasonably related to a legitimate ed ucational interest," App. IV, Trial Tr. Feb. 25, 1997, at 26 -- Edwards argues that the district court did not adequately e xplain

5this standard and, thus, "permitted the jury to spe culate on

the parameters of freedom of speech." Appellant's B r. at 24. Specifically, Edwards contends that the district co urt 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 o f a professor's right to choose his curriculum material s absent an official school policy.

We do not find it necessary to determine whether th e district court's instruction adequately defined the "reasonably related to a legitimate educational int erest" standard because, as a threshold matter, we conclud e that a public university professor does not have a First Amendment right to decide what will be taught in th e classroom. This conclusion is compelled by our deci sion 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 i n 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, inclu ding her advocacy of particular teaching methods, is protect ed, 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 materia ls, 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 t he absence of an official existing school policy prohibiting" a prof essor from selecting certain classroom materials, a professor has a Firs t Amendment right to choose his curriculum materials. See Appellant's Br . at 28. This interpretation ignores: 1) the Bradley court's inst ruction that public school teachers must abide by "school policy or dic tates" 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 f act that the school in Bradley, like the University here, took action with out establishing an official policy. Id. at 1174.

6136 F.3d 364, 370 (4th Cir. 1998) (in banc) ("We ag ree . . .

that the school, not the teacher, has the right tof ix the curriculum."); Kirkland v. Northside Indep. Sch. Di st., 890 F.2d 794, 800 (5th Cir. 1989) ("Although the concep t of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upo n teachers the control of public school curricula."). But see Bishop v. Aronov, 926 F.2d 1066, 1075 (11th Cir. 19 91) (finding that a public university's restrictions on a professor's in-class speech "implicate[d] First Ame ndment freedoms").

Our conclusion that the First Amendment does not pl ace restrictions on a public university's ability to co ntrol 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 passag e 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 determine s the content of the education it provides, it is the University speaking, and we have permitted the governme nt to regulate the content of what is or is not ex pressed when it is the speaker or when it enlists pr ivate entities to convey its own message. . . . It does not follow, however, . . . that viewpoint-based restrict ions are proper when the University does not speak it self or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of vi ews from private speakers. A holding that the Univers ity may not discriminate based on viewpoint of private p ersons whose speech it facilitates does not restric t the University's own speech, which is controlled by different principles.

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

Edwards's reliance on the principle of academic fre edom

7does not affect our conclusion that the University can make

content-based decisions when shaping its curriculum . The Supreme Court has explained that "[a]cademic freedo m 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 U niv. of Michigan v. Ewing, 474 U.S. 214, 226 n.12 (citation s omitted). The "four essential freedoms" that consti tute
academic freedom have been described as a universit y's freedom to choose "who may teach, what may be taugh t, how it shall be taught, and who may be admitted to study." Regents of Univ. of California v. Bakke, 438 U.S. 2 65, 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 constitutio nal right to choose curriculum materials in contraventi on of the University's dictates. Accordingly, we affirm the d istrict court's decision not to grant a new trial on this i ssue.

B.

Edwards's second contention is that the district co urt erred when it granted summary judgment for the Univ ersity on his procedural due process claim. The district c ourt initially ruled on this issue prior to trial, concl uding that, "because Edwards was suspended with pay, he cannot prove that he was deprived of a property interest d eserving due process guarantees." App. I at 138. Edwards mov ed for reconsideration on the ground that the district cou rt'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 appropr iate," Appellant's Br. at 31, is incorrect. The case cited for this propos ition, Edwards v. Aguillard, 482 U.S. 578 (1987), reaches no such con clusion. 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 p oint in Aguillard,
which is an Establishment Clause case, does the Court def ine academic freedom for purposes of the Free Speech Clause.

8Edwards's motion, explaining that he had not "plead ed

facts sufficient to make out a liberty interest cla im 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 deprivat ion of present or future employment, is not a liberty inte rest protected by the fourteenth amendment." Robb v. Cit y 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"bot h damage to reputation and the extinguishment of government employment as a predicate for due proces s protection."). Since it is undisputed that Edwards remained employed with pay at all times relevant to this cas e, his claim is barred by our decisions in Robb and Strum. While Edwards's temporary removal from class duties may h ave further stigmatized him, this action does not const itute a deprivation of employment. Therefore, we will affir m the district court's grant of summary judgment on Edwar ds's due process claim.

C.

Edwards next contends that the district court impro perly dismissed his equal protection claim. In making thi s argument, Edwards places considerable reliance on f acts that came out at trial. See Appellant's Br. at 42; Appellant's Reply Br. at 18. However, the district court dismis sed Edwards's equal protection claim prior to trial bec ause Edwards's counsel admitted that the second amended complaint did not adequately allege an equal protec tion 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 sh ow persons similarly situated were treated in a different manner because of participation in a protect ed class?

Mr. Carson: That's the criteria.

9Under 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 h e should have been allowed to file a third amended complaint on the first day of trial -- are both without merit. Accor dingly, we
affirm the district court's resolution of both issu es.

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 Univ ersity's dictates; 2) that Edwards failed to state a procedu ral 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 f ailed 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 p ass 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 reveal ed 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.

10A True Copy:

Teste:

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

11