1

Our prior opinion in this case is reported at 61 F.3d 837

(11th Cir.1995). Rehearing is granted, and this opinion replaces

the prior opinion. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2278.

Alan THORNQUEST; Marion Brady; Thomas S. Ward, PlaintiffsAppellants,

v.

Maxwell C. KING, individually and in his official capacity as

Administrative Employee of Brevard Community College; Robert E.

Lawton, individually and in his official capacity as Administrative

Employee of Brevard Community College; Tace T. Crouse,

individually and in his official capacity as Administrative

Employee of Brevard Community College, et al., DefendantsAppellees.

May 9, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 92-709-Civ-Orl-18), G. Kendall Sharp,

Judge.

ON PETITION FOR REHEARING

Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior Circuit

Judge.

BARKETT, Circuit Judge:

Professors Marion Brady, Thomas Ward and Alan Thornquest

appeal judgments entered in favor of Brevard Community College

administrators, College President Maxwell King and the College

Board of Trustees (collectively "defendants") in this 42 U.S.C. §

1983 suit.1 The professors, who were involved in union activity

and publicly critical of the College and the Board of Trustees,

claimed that they were transferred, fired and/or denied benefits in

violation of their federal and state rights to free expression,

petition, assembly and substantive due process. Brady further
alleged that he was fired and denied benefits in violation of

federal and state procedural due process. Finally, Brady and

Thornquest claimed that the College's "dissent" policy violated

their rights to free expression, petition and assembly. The

district court granted summary judgment for defendants on all

claims.

We affirm the district court's judgment as to all claims

except Brady's claims that the College transferred him and the

Board discharged him in retaliation for his free speech, and Brady

and Thornquest's first amendment claims against the "dissent"

policy. We reverse the judgment as to those claims and remand the

case for further proceedings.

I. BACKGROUND

Marion Brady, a sociology professor at the College since 1976,

became a vocal critic of the College administration and Board in

1988. In letters to the editor, public officials and the Board,

Brady criticized the administration and Board for, among other

things, expending funds to build the King Performing Arts Center,

emphasizing public relations at the expense of education and

failing to act on his complaints of improprieties.

In March 1992, Brady was informed by the College that he was

being transferred to a different campus. Thereafter, in May 1992,

President King recommended to the Board, pursuant to Rule 6A14.0411(6), Florida Administrative Code, that Brady be discharged

on the grounds that he was guilty of misconduct, gross

insubordination and willful neglect of duty. Brady responded that

President King's recommendation was filed to retaliate against him
for exercising his rights to free speech, petition, assemble and

work and to engage in union activity.

Believing the Board to be biased against him, Brady requested

that it permit President King's petition to be heard by a Hearing

Officer of the Florida Division of Administrative Hearings. The

Board denied this request. Brady then filed a lawsuit in state

court, asserting under both state law and § 1983 that his transfer

by the College, and subsequent threatened termination as

recommended by President King's petition, violated his statutory

and constitutional rights. In addition to damages, Brady

unsuccessfully sought an injunction prohibiting the Board from

hearing the discharge petition. By letter, Brady also asked the

Board to disqualify itself from hearing the petition because all of

its members were biased against him. After only two of the five

Trustees disqualified themselves, Brady filed a formal Suggestion

for Disqualification of the remaining Trustees, pursuant to Section

120.071, Florida Statutes, which the Trustees denied.

Over Brady's objections, the Board ultimately held a hearing

on President King's recommendation of discharge. The three

Trustees who had not recused themselves heard from the

administrators regarding the allegations of misconduct and gross

insubordination, rejected Brady's charges that President King's

recommendation and the Board's prospective action were motivated by

unconstitutional retaliation, and discharged Brady. The Board also

denied Brady accumulated sick leave.

 Meanwhile, defendants removed Brady's pending state suit to

federal district court. In his Amended Complaint, Brady changed
 2

Brady also alleged in the Amended Complaint that the

transfer, discharge and denial of benefits violated his

substantive due process rights because they were based on

arbitrary and capricious reasons. See Count I. Brady further

alleged that the discharge and denial of benefits violated his

procedural due process rights. See Count VII. We conclude that

Brady's due process claims must be dismissed in light of McKinney

v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, --

- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). In McKinney,

appellant McKinney was a state employee challenging his

termination rendered by a state administrative body. McKinney,

20 F.3d at 1554-55. He claimed that his substantive due process

rights were violated because he was terminated by a biased board. 

Id. at 1562. Rejecting McKinney's claim, this court held that

substantive due process claims arising from non-legislative

violations of non-fundamental, state-created property rights

(such as employment rights) are no longer cognizable in this

circuit. Id. at 1560. Brady's substantive due process claim

similarly arises from defendants' alleged violation of his

state-created, non-fundamental property right in his employment. 

Accordingly, like McKinney, Brady does not state a cognizable

substantive due process claim. See id. at 1561. Nor does he

state a cognizable procedural due process claim, as conceded by

his counsel. See id. at 1564. The Amended Complaint also

alleged several violations of state law which are irrelevant to

the present appeal. 

his initial claim alleging that his threatened discharge based upon

President King's petition was unconstitutional to one alleging that

his actual discharge by the Board was in retaliation for exercising

his first amendment rights. See Count II. In addition, Brady

repeated in the Amended Complaint his transfer claim contained in

the Initial Complaint. Id. Brady and Thornquest further alleged

that the College's policy on "dissent" was unconstitutional, both

facially and as applied.2

 See Counts VIII and IX. The lawsuit

requested damages, declaratory relief and an injunction requiring

immediate reinstatement and prohibiting enforcement of the

"dissent" policy.

Following discovery, the district court granted summary

judgment against Brady, determining that he was barred from
 3

Unlike Brady's § 1983 substantive due process claim,

arising from a state-created, non-fundamental property right in

his employment which is not cognizable in this circuit, see

McKinney, 20 F.3d at 1560, his § 1983 retaliatory discharge claim

derives from a specific, fundamental constitutional provision. 

As we have explained, "although a retaliatory discharge claim by

a state employee involves the denial of the state-created benefit

of employment, the right upon which a retaliatory government

employment decision infringes is the [fundamental] right to free

speech, not the right to a job." Beckwith v. City of Daytona

Beach Shores, 58 F.3d 1554, 1563 (11th Cir.1995). Accordingly,

relitigating factual issues the Board had considered. The court

did not address the challenges to Brady's transfer or the College's

"dissent" policy, but entered final judgment in favor of defendants

on all claims.

II. STANDARD OF REVIEW

 Our review of Brady and Thornquest's first amendment claims

is de novo. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 609

(11th Cir.1991).

III. DISCUSSION

 In § 1983 actions, federal courts must afford the same

preclusive effect to unreviewed state administrative agency

factfinding to which it would be entitled in the state's courts,

provided the state agency was "acting in a judicial capacity," and

"resolve[d] disputed issues of fact properly before it which the

parties ... had an adequate opportunity to litigate." University

of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226,

92 L.Ed.2d 635 (1986) (quotations & citations omitted); see also

Gjellum v. City of Birmingham, 829 F.2d 1056, 1070 (11th Cir.1987).

 In this case, the Board could not have been "acting in a

judicial capacity" because it was acting as Brady's employer when

it discharged Brady.3 See Fla.Stat. § 240.319(3)(l )1 (providing
"McKinney has no impact on such claims." Id. 

that "board of trustees shall provide for the ... removal of

personnel") (emphasis added); Fla.Admin.Code Rule 6A-14.0411(6)

(providing that employee under continuing contract "may be ...

dismissed by the board upon recommendation of the president")

(emphasis added); Burney v. Polk Community College, 728 F.2d 1374,

1376 (11th Cir.1984) (recognizing employer-employee relationship

between board of trustees and tenured guidance counselor); see

also Perkins v. School Bd. of Pinellas County, 902 F.Supp. 1503,

1506 (M.D.Fla.1995) (recognizing employer-employee relationship

between county school board and teacher); Weaver v. School Bd. of

Leon County, 661 So.2d 333, 333 (Fla.Dist.Ct.App.1995) (same).

Moreover, the issue of whether Brady's actual discharge was in

retaliation for exercising his first amendment rights could not

have been "properly before" the Board, nor could the parties have

had "an adequate opportunity to litigate" this issue before the

Board, because it was the Board which in fact discharged Brady.

Thus, the issue of whether the Board's action to discharge Brady

was motivated by unconstitutional retaliation still remains to be

considered.

Unlike Brady's actual discharge which was accomplished by the

Board, his earlier transfer was ordered by the College. Any

findings of fact made by the Board relevant to Brady's transfer

claim must be afforded preclusive effect by the district court in

determining whether the College transferred Brady in retaliation

for his speech.

 The district court must further consider Brady and
Thornquest's challenges to the College's "dissent" policy, which

gave President King the authority to manage dissent and

demonstrations, including the authority to "delineate types of

acceptable and unacceptable dissent." In furtherance of that

policy, the College administration created what was known as a

"designated demonstration area" located in a corner of campus

removed from the King Performing Arts Center. While this policy

was in place, Brady, Thornquest and a dozen other protesters sought

to conduct a peaceful demonstration in front of the King Performing

Arts Center, rather than in the designated area, resulting in the

arrest of two demonstrators.

Brady and Thornquest claim that the policy was

unconstitutional on its face and as applied to them. According to

defendants, the propriety of summary judgment is demonstrated by

evidence that the College is not a public forum and the "dissent"

policy reasonably regulates the time, place and manner of

demonstrations. From the record before us, we cannot determine

that there is no genuine issue of material fact on relevant

questions such as whether the performance center is a public forum;

if it is a public forum, whether the regulations are narrowly drawn

to effectuate a compelling state interest; if it is not a public

forum, whether the regulations are reasonable; and whether Brady

and Thornquest have standing to challenge the policy. Thus, we

remand these claims for consideration by the district court.

IV. CONCLUSION

For the foregoing reasons, we reverse the judgment of the

district court as to Brady's first amendment claims that the
College transferred him and the Board discharged him in retaliation

for his speech; and as to Brady and Thornquest's claims against

the "dissent" policy. In all other respects we affirm the district

court's judgment in favor of defendants. Accordingly, we remand

the case for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.