UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 INDIVIDUAL RIGHTS, Washington, D.C., for Appellant. Lee E. Goodman, Associate General Counsel/Special Assistant Attorney General,

UNIVERSITY OF VIRGINIA, Charlottesville, Virginia, for Appellees. 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 UNIVERSITY 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Unpublished opinions are not binding precedent in this circuit.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 Graduate 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 communications course ("A&C"), a required writing and public speaking

course for all first-year business students. While Scallet taught at Darden, 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, Scallet 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 Scallet's lack of collegiality, the environment of fear and distrust he created which led to disruptions in the department, and other conduct

which the district court characterized as bordering on sexual harassment.

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 argument, 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 advocacy 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 curriculum 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 speaking 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 protected 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 nonrenewal 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 numerous complaints and personal observations, Appellees made the decision not to renew Scallet's contract.

We agree with the district court that Scallet has failed to raise genuine 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 advocacy in faculty meetings, or because of the posted articles and cartoons 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 district 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.

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It is evident that the parameters of the protection afforded to a university 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 preexisting law and legitimate questions exist concerning whether the

official violated the plaintiff's constitutional rights, the official is protected 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 individual 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 grappling 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 recognize the contours of Scallet's rights.

AFFIRMED

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