The Honorable Michael J. Davis, United States District Court 1

Judge for the District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-1962

___________

Albert Burnham; Ronald *

Marchese; Michael Kohn; *

Louise Kohn, *

*

Appellees, *

* Appeal from the United States

v. * District Court for the District 

* of Minnesota.

Lawrence Ianni, in his *

official capacity as *

Chancellor of the University *

of Minnesota at Duluth and *

in his individual capacity, *

*

Appellant. *

___________

 Submitted: January 14, 1997

 Filed: July 11, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG,

BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD,

Circuit Judges, en banc.

___________

BEAM, Circuit Judge.

In this section 1983 action, Chancellor Lawrence Ianni appeals from

the district court’s denial of his motion for summary judgment based on

1

qualified immunity. A panel of this court reversed. Our decision to grant

en banc review vacated that 
The Kohns have now graduated from UMD. 2

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decision. See Burnham v. Ianni, 98 F.3d 1007 (8th Cir. 1996). We now

affirm.

I. BACKGROUND

Because discovery has not been conducted in this case, the facts are

derived from the plaintiffs’ pleadings and the affidavits submitted by the

parties. Plaintiff Albert Burnham has been a part-time professor in the

history department at the University of Minnesota-Duluth (UMD) since 1986.

Plaintiff Ronald Marchese is a tenured professor in the University of

Minnesota system. He is a professor of humanities, classics and history

at UMD and a professor of ancient history and archaeology in the Center for

Ancient Studies at the University of Minnesota-Minneapolis. The History

Club, active for a number of years on campus, operates under the auspices

of the UMD history department. At all relevant times, Professor Burnham

was the faculty advisor to the Club.

During the fall quarter of 1991, two student members of the History

Club, plaintiffs Michael and Louise Kohn, conceived an idea for a project 2

that was intended to publicize some of the areas of expertise and interest

of the history department’s faculty, while at the same time portraying the

instructors in an informal, somewhat humorous way. The Kohns approached

Professors Burnham and Marchese as well as other members of the department,

all of whom agreed to participate. They agreed to pose for a picture with

a “prop” that related to their areas of interest. They also supplied

information about their fields of expertise, academic background, and

historical heroes, as well as a quotation to be used along with the above

information and their photographs.
The debate over how to present history in our nation’s

3

schools has been a topic of public concern for some time. Indeed,

it has been the subject of numerous books, law reviews and

newspaper articles. See, e.g., Stephen E. Gottlieb, In the Name of

Patriotism: The Constitutionality of ‘Bending’ History in Public

Secondary Schools, 62 N.Y.U.L. Rev. 497 (June 1987) (compiling

authorities). In 1994, this nationwide concern resulted in the

release of a national curriculum guidebook which was widely

criticized as bowing to political correctness to the detriment of

offering students an accurate account of United States history.

See Connie Cass, History Standards Criticized as Too Politically

Correct, 1994 WL 10105333 (1994). The most widely criticized

aspect of the guidebook was its downplaying of historical heroes,

to the exclusion of persons such as Thomas Edison, Paul Revere and

Robert E. Lee. Id. Although a revised guidebook emerged in 1996,

it too caused quite a stir. See Elizabeth Martinez, A New Way of

Looking At Our U.S. Origin Myth, 1996 WL 2163654 (1996).

Regardless of the current status of a proposed national guidebook,

however, the debate over how to teach history is alive and well.

As one author recently stated:

 

One cannot study history without an appreciation of the

conflicts it contains both among the actors in the past

and among the historians of the present. The idea that

history can be taught as a set of names and dates or that

science can be taught as a set of formulas is as

distasteful to students as to those with any knowledge of

the disciplines. Yet, if one is to get beyond the level

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For his photograph, Professor Burnham posed with a .45 caliber

military pistol, wearing a coonskin cap. His special interest in American

history includes military history in particular. He listed John Adams and

Davy Crockett among his historical heroes. Consistent with his

professional interests, Professor Marchese elected to hold an ancient Roman

short sword while wearing a cardboard laurel wreath. He listed his

specialties as “Ancient Greece and Rome, Homeric Literature” and identified

Homer and Alexander the Great as his historical heroes. 

A total of eleven professors posed for or supplied pictures. The

Kohns assembled an exhibit that incorporated these photographs along with

the written comments submitted by each faculty member. The photographs and

the accompanying written material were thought to communicate matters of

public interest. The exhibit was 3
of names and dates, one dwells in a realm of disputed

ideas.

Gottlieb, 62 N.Y.U.L. Rev. at 573 (footnote omitted). 

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intended to be viewed by students and prospective students, as well as any

members of the public who might be on the premises. It was designed to

impart information about the professors and their attitudes toward history-

-as reflected, for example, in their choices of historical heroes.

The exhibit was put up in the history department’s display case,

located in the public corridor next to the classrooms used by the

department, on March 27, 1992. The case and its contents are seen by

students taking classes nearby, faculty members, and members of the general

public. The display case is reserved for the use of the history

department. It has contained, for a number of years, an exhibit on Roman

siege warfare equipment that was assembled by Professor Marchese. The

device has been used by members of the History Club as well as by the

history department faculty. The case is used only to communicate matters

that are considered to be of general interest. It is not used for private

communications, like a mailbox or a message system.

The exhibit was, in fact, observed by hundreds, if not thousands, of

people. Members of the department received many compliments on the

presentation, as did the students who assembled it. For two weeks, no one

expressed any criticism about the exhibit. To the contrary, the display

appeared to contribute to morale and good relations within the department.
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On April 10, 1992, Judith Karon, who was then UMD’s affirmative

action officer, and UMD Police Captain Harry Michalicek came to the history

department and viewed the exhibit. This was in response to a complaint by

Charlotte Macleod, an assistant professor who was the head of the UMD

Commission on Women. Karon went to the departmental secretary, Elizabeth

Kwapick, and demanded that the pictures of Professors Burnham and Marchese

be removed. The department denied this demand.

Upon hearing of this attempt to remove the pictures, Professor

Burnham called a lawyer in the University of Minnesota’s Legal Department,

who told him that she could find nothing wrong with the display as

described. The history department agreed that the department should resist

any attempt by the administration to censor the photographs, and the

department declined to remove them.

On April 27, 1992, Karon sent a memorandum to the Dean of the College

of Liberal Arts, John Red Horse, stating that she expected the pictures to

be removed immediately because she found them to be “totally

inappropriate.” Dean Red Horse apparently refused to act on Karon’s

request. On April 30, 1992, Karon sent Professor Burnham a memorandum

explaining her reasons for wanting to remove the photographs of Professors

Burnham and Marchese. In her memorandum, Karon again stated that she

ordered the exhibit taken down because she found the photographs

“insensitive” and “inappropriate.” 

On the morning of April 29, 1992, Louise Kohn, Michael Kohn,

Elizabeth Kwapick and Professor Burnham met with Chancellor Ianni to

explain the display and protest Karon’s attempted censorship of the

pictures and the students’ work. During that meeting, Ianni said that he

personally found nothing wrong with the photographs. On the afternoon of

the same day, the history department held a 
Apparently, Professor Trolander had not initially been

4

offended in any way by the pictures; in fact, she participated in

the project by posing for a photograph and specifying her

specialties. On the day the display was put up, Trolander said

that she thought the display was “very nice.”

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meeting on this issue, which was also attended by Ianni, Karon, and Red

Horse. During that meeting, Chancellor Ianni again stated that he

personally saw nothing wrong with the photographs, but hinted that he might

nevertheless support their removal.

When asked to explain why she wanted the photographs removed, Karon

tried to connect them to a written threat against Professor Judith

Trolander which had been found on March 16, 1992. Members of the

4

department told Karon that they thought her attempt to link the pictures

to this deranged message was absurd. Karon also stated that she considered

the photographs to constitute sexual harassment. She was unable to explain

what she meant by this. She was also unable to state by what authority she

could order the removal of a student departmental display. 

On May 4, 1992, Chancellor Ianni ordered UMD Plant Services Director

Kirk Johnson to remove the pictures of Professors Burnham and Marchese.

Because Johnson was unable to obtain access to the pictures at that time,

Ianni ordered the UMD police to remove the photos. The next day, UMD

Police Captain Michalicek removed the photographs from the display. Only

the two photographs with weapons were removed. The other nine photographs

remained on display. Professors Burnham and Marchese then removed the

balance of their contributions to the exhibit.

Following the removal of the photographs, Ianni explained that he

removed them because Karon had claimed that she had received anonymous

complaints about the display which objected to the 
The threats to others to which Ianni referred had occurred

5

during the previous year. In June 1991, Sandra Featherman was

appointed UMD Vice Chancellor. She later began receiving anonymous

threats warning her to stay away from Duluth, or face the

possibility of kidnapping or even death. In March 1992, Professor

Trolander became the target of similar threats. Both Featherman

and Trolander had been involved in a campus-wide campaign to

promote diversity in the UMD community. In response to these

threats, Chancellor Ianni distributed a campus memorandum dated

March 16, 1992, assuring the UMD community that the matter was

being investigated by local and federal authorities and stating

that the school was still committed to improving the conditions for

women and minorities on campus.

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depiction of faculty members with weapons. Karon also claimed that

Professor Trolander had contacted her about the display’s upsetting effect

on her. Ianni expressed his belief that the campus was enshrouded in an

atmosphere of anxiety due to the earlier threats against Trolander and

others. He further explained that his removal of the photographs was an 5

attempt to stop the disruption caused by the display and to prevent

aggravation of the atmosphere of fear. Plaintiffs dispute that any milieu

of concern existed and contend that the campus atmosphere, whatever it may

have been, was not aggravated or affected by the two photographs.

Copies of the photographs were later posted at the student center by

a group of students protesting the administration’s actions. The student

center display advanced the subject of censorship and was entitled “The

Administration Does Not Want You to See These.” The students used the

incidents surrounding the removal of the photographs as an example of

impermissible actions under the First Amendment. Apparently, no complaints

were lodged about the student center exhibit, nor was there any evidence

of an institutional breakdown upon the showing of the photographs. 

Plaintiffs, alleging First Amendment violations, filed this 42 U.S.C.

§ 1983 action against Chancellor Ianni and the University of 
In their amended complaint, plaintiffs sought a declaration

6

that Ianni’s actions were unconstitutional, injunctive relief

against Ianni in his official capacity, and monetary relief against

Ianni in his individual capacity in the amount of at least $50,000,

plus interest. Appellant’s App. at 4 (amended complaint).

Because this appeal solely concerns the denial of qualified

7

immunity, implicating only Ianni’s liability for money damages, we

do not, of course, address plaintiffs’ claims for injunctive or

other equitable relief. We note, however, that neither the state’s

Eleventh Amendment immunity nor the doctrine of qualified immunity

would protect Ianni from injunctive or other equitable relief.

See, e.g., Treleven v. University of Minnesota, 73 F.3d 816, 819

(8th Cir. 1996) (state’s Eleventh Amendment immunity does not

shield official from prospective injunctive relief); Grantham v.

Trickey, 21 F.3d 289, 295 (8th Cir. 1994) (qualified immunity does

not shield officials from equitable relief); Rose v. Nebraska, 748

F.2d 1258, 1262 (8th Cir. 1984) (state’s Eleventh Amendment

immunity does not shield officials from declaratory or injunctive

relief). 

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Minnesota. Defendants moved for summary judgment, which the district court

granted in part and denied in part. The court dismissed, with prejudice,

all plaintiffs’ claims against the University of Minnesota, all plaintiffs’

claims for money damages against Ianni in his official capacity as

Chancellor of UMD, and the Kohns’ claims against Ianni for injunctive

relief. The district court denied summary judgment on the remaining

contentions, including the issue of qualified immunity for Chancellor

Ianni. The district court found that Chancellor Ianni’s actions violated 6

the plaintiffs’ clearly established First Amendment rights, in a way that

an objective university chancellor would have known. Burnham v. Ianni, No.

5-94-6, mem. op. at 10-11 (D. Minn. Mar. 17, 1995). Ianni appeals the

denial of summary judgment on this ground, contending that the plaintiffs’

First Amendment rights were not clearly established, thereby rendering his

actions protected by qualified immunity. We review the district court’s

conclusion on the qualified immunity issue de novo. White v. Holmes, 21 7

F.3d 277, 279 (8th Cir. 1994). 
We have recently framed the inquiry in a slightly different, 8

but substantively similar, way by saying that “we must consider

what specific constitutional rights the defendants allegedly

violated, whether the rights were clearly established in law at the

time of the alleged violation, and whether a reasonable person in

the official’s position would have known that his conduct would

violate such rights.” Waddell v. Forney, 108 F.3d 889, 891 (8th

Cir. 1997).

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II. DISCUSSION

Since this matter is before the court on a motion for summary

judgment based on qualified immunity, the court “ordinarily must look at

the record in the light most favorable to the party [plaintiffs/appellees]

opposing the motion, drawing all inferences most favorable to that party.”

Harlow v. Fitzgerald, 457 U.S. 800, 816 n.26 (1982). Qualified immunity

shields government officials from suit unless their conduct violates a

clearly established constitutional or statutory right of which a reasonable

person would have known. Id. at 818; Yowell v. Combs, 89 F.3d 542, 544

(8th Cir. 1996). 

Chancellor Ianni’s assertion that he is protected by qualified

immunity triggers a three-pronged inquiry: (1) whether the plaintiffs have

asserted a violation of a constitutional or statutory right; (2) if so,

whether that right was clearly established at the time of the violation;

and (3) whether, given the facts most favorable to the plaintiffs, there

are no genuine issues of material fact as to whether a reasonable official

would have known that the alleged action violated that right. Yowell, 89

F.3d at 544. Ianni focuses on the second prong of this analysis. He

8

argues that the plaintiffs’ rights were not clearly established at the time

of the removal of the photographs. Whether a legally protected interest

is clearly established turns on the “objective 
The two student/plaintiffs would clearly not be covered by

9

this argument. 

Pickering v. Board of Educ., 391 U.S. 563 (1968). 10

-10-

legal reasonableness of an official’s acts. Where an official could be

expected to know that certain conduct would violate statutory or

constitutional rights, he should be made to hesitate.” Harlow, 457 U.S.

at 819. 

Ianni bears the burden of proving that the plaintiffs’ First

Amendment rights were not clearly established. See, e.g., Siegert v.

Gilley, 500 U.S. 226, 231 (1991); Watertown Equip. Co. v. Norwest Bank

Watertown, 830 F.2d 1487, 1490 (8th Cir. 1987). In an attempt to shoulder

this burden, Ianni argues that: (1) some restrictions on speech in

nonpublic forums are constitutionally acceptable and, thus, which

restrictions are acceptable in a given situation is never “clearly

established;” and (2) the professors were public employees and their First 9

Amendment rights were subject to the fact-intensive Pickering balancing 10

test, thus, precluding the rights from being “clearly established.” These

arguments will be addressed in turn. 

First, however, we note that the expressive behavior at issue here,

i.e., the posting of the photographs within the history department display,

qualifies as constitutionally protected speech. See, e.g., Spence v.

Washington, 418 U.S. 405, 410 (1974); Tinker v. Des Moines Indep. Community

Sch. Dist., 393 U.S. 503, 505-06 (1969); Tindle v. Caudell, 56 F.3d 966,

969 (8th Cir. 1995). Nonverbal conduct constitutes speech if it is

intended to convey a particularized message and the likelihood is great

that the message will be understood by those who view it, regardless of

whether it is actually understood in a particular instance in such a way.

Spence, 418 U.S. at 411. Burnham and Marchese, through their 
-11-

photographs, were attempting, at least in part, to convey and advocate

their scholarly and professorial interests in military history and in

military weaponry’s part in their vocation. Michael and Louise Kohn, as

well, were attempting to show their creativeness and interest in the scope

of the teaching mission of the history department. The display was the

Kohns’ idea; they organized and exhibited it. Because these messages

sufficiently satisfy the Spence test, the photographs and the display

qualify as speech. Id. And, we do not understand that Ianni disputes this

conclusion.

Although the right of free speech is not absolute, the First

Amendment generally prevents the government from proscribing speech of any

kind simply because of disapproval of the ideas expressed. R.A.V. v. City

of St. Paul, 505 U.S. 377, 382 (1992). Indeed, with a few exceptions, most

speech receives First Amendment protection. Cohen v. California, 403 U.S.

15, 24 (1971); see, e.g., New York v. Ferber, 458 U.S. 747, 756 (1982)

(child pornography is unprotected speech); Miller v. California, 413 U.S.

15, 23 (1973) (obscene speech is unprotected speech); Chaplinsky v. New

Hampshire, 315 U.S. 568, 572 (1942) (fighting words are unprotected

speech). The First Amendment’s protection even extends to indecent speech.

Sable Communications v. Federal Communications Comm’n, 492 U.S. 115, 126

(1989). It also extends to speech unprotected on one basis (e.g.,

obscenity) but protected on another (e.g., content in opposition to

governmental acts). R.A.V., 505 U.S. at 384-86. Clearly then, plaintiffs’

speech is worthy of constitutional protection. 

Because this case involves Ianni’s suppression of plaintiffs’

protected speech, plaintiffs have (at least for purposes of summary

adjudication) sufficiently established a violation of a constitutional

right--unless limitations indigenous to the forum 
We recognize that both the terms “limited public forum” and 11

“designated public forum” are used to describe this second category

of property. See, e.g., International Soc’y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 686 (1992) (using terms

interchangeably); see also Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983); Capitol Square Review &

Advisory Bd. v. Pinette, 115 S. Ct. 2440, 2469 (1995). For

purposes of our discussion, we will use the term “limited public

forum.” 

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lawfully permit restrictions on plaintiffs’ First Amendment privileges.

We turn to that inquiry.

A. The Forum 

Access to and the character of speech on government-controlled areas

may be limited depending upon the type of property at issue. Courts

recognize three categories of property on which the government may, in

greatly varying degrees, restrict speech: (1) public forums, places which

by tradition have been devoted to assembly or debate; (2) limited public

forums, properties which the state has opened for use by the public as

11

places for expressive activity; and (3) nonpublic forums, places which are

not by tradition or designation forums for public communication. Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983).

In public forums, the state’s right to limit expression is “sharply

circumscribed.” Id. at 45. In limited public and nonpublic forums,

however, the state’s right to regulate speech is more pervasive. 

Ianni argues, and the district court found, that the history

department display case is a nonpublic forum. Ianni further claims that

because the expression occurred in a nonpublic forum, speech restrictions

were permissible or, at least, the extent of any permissible restriction

was unclear. Thus, Ianni states, 
We do note, however, that the display case could well be a

12

limited public forum. See Perry, 460 U.S. at 48; Forbes v.

Arkansas Educ. Television Comm’n, 93 F.3d 497, 500 (8th Cir. 1996),

cert. granted, 117 S. Ct. 1243 (1997). The case, as earlier noted,

was located in the hall outside the history department’s classrooms

and was intended for public viewing. UMD had designated it as a

forum for use by the history department. In turn, the history

department allowed its faculty and students access to the case--to

communicate information about the history department to students,

prospective students, faculty and the public on an ongoing basis.

If the display case were considered a limited public forum, the

content-based suppression at work here would have to have served a

compelling state interest and would have to have been narrowly

drawn to serve that interest in order to be upheld. Widmar v.

Vincent, 454 U.S. 263, 270 (1981). However, because we find that

the suppression here fails even the most lenient forum test, we

need not address this issue.

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plaintiffs’ First Amendment rights were extinguished, limited or at a

minimum, not clearly established. Therefore, Ianni says, the district

court’s denial of qualified immunity was error. We disagree.

In this case the nature of the forum makes little difference. Even 12

if the display case was a nonpublic forum, Ianni is not entitled to

qualified immunity. The Supreme Court has declared that “the State may

reserve [a nonpublic] forum for its intended purposes, communicative or

otherwise, as long as the regulation on speech is reasonable and not an

effort to suppress expression merely because public officials oppose the

speaker’s view.” Perry, 460 U.S. at 46; see also Lamb’s Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (stating control

over access to nonpublic forum can be based on subject matter and speaker

identity so long as the distinctions drawn are reasonable in light of the

purpose served by the forum and are viewpoint neutral); United States v.

Kokinda, 497 U.S. 720, 732 (1990) (stating constitutionality of regulation

must be considered in light of the nature and function of the forum

involved). Here, we 
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find that the suppression was unreasonable both in light of the purpose

served by the forum and because of its viewpoint-based discrimination. 

The display case was designated for precisely the type of activity

for which the Kohns and Professors Burnham and Marchese were using it. It

was intended to inform students, faculty and community members of events

in and interests of the history department. The University was not

obligated to create the display case, nor did it have to open the case for

use by history department faculty and students. However, once it chose to

open the case, it was prevented from unreasonably distinguishing among the

types of speech it would allow within the forum. See, e.g., Lamb’s Chapel,

508 U.S. at 392-93; Widmar v. Vincent, 454 U.S. 263, 267 (1981). Since the

purpose of the case was the dissemination of information about the history

department, the suppression of exactly that type of information was simply

not reasonable. 

We recognize that UMD “may legally preserve the property under its

control for the use to which it is dedicated.” Lamb’s Chapel, 508 U.S. at

390. However, as the Supreme Court has stated: 

“[A]lthough a speaker may be excluded from a nonpublic forum if

he wishes to address a topic not encompassed within the purpose

of the forum . . . or if he is not a member of the class of

speakers for whose especial benefit the forum was created . .

. , the government violates the First Amendment when it denies

access to a speaker solely to suppress the point of view he

espouses on an otherwise includible subject.”

Id. at 394 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,

473 U.S. 788, 806 (1985)).
Although difficult to tell from the record, the objections

13

of Karon, Macleod and Ianni may have been substantially directed

toward the display of the weapons on the campus and, perhaps, not

simply toward history department curriculum or Burnham’s and

Marchese’s teaching methodology. Suppression on these more limited

grounds, however, would be unconstitutional in light of the

purposes served by the display case, as discussed above.

Additionally, we do not discern how generalized concerns over the

display of weapons in any way advance Ianni’s rights of suppression

or attenuate Burnham and Marchese’s free speech privileges in this

case. The fact that the professors’ history-based message happened

to fall victim to Ianni’s parochial point of view on exhibiting

weapons makes the censorship no less pernicious and no more

acceptable, especially given the fact that the purpose of the

display was carefully explained to Ianni in advance of his action.

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The suppression of this particular speech was also viewpoint-based

discrimination. As the Supreme Court has noted, in determining whether the

government may legitimately exclude a class of speech to preserve the

limits of a forum,

we have observed a distinction between, on the one hand,

content discrimination, which may be permissible if it

preserves the purposes of that limited forum, and, on the other

hand, viewpoint discrimination, which is presumed impermissible

when directed against speech otherwise within the forum’s

limitations.

 

Rosenberger v. Rector and Visitors, 115 S. Ct. 2510, 2517 (1995) (citing

Perry, 460 U.S. at 46). As Rosenberger illustrates, what occurred here was

impermissible. The photographs of Professors Burnham and Marchese

expressed the plaintiffs’ view that the study of history necessarily

involves a study of military history, including the use of military

weapons. Because other persons on the UMD campus objected to this

viewpoint, or, at least, to allowing this viewpoint to be expressed in this

particular way, Ianni suppressed the speech to placate the complainants.13

To put it simply, the photographs were removed because a handful of

individuals apparently objected to the plaintiffs’ views on the 
We by no means hold that government has no control over

14

speech in the workplace or the schoolhouse. We envision many

instances when speech, or proposed speech, is beyond the “speaker

identity” or “content” designation of the forum and in such

instances the speech may be regulated. See Lamb’s Chapel, 508 U.S.

at 394; Rosenberger, 115 S. Ct. at 2517. This is not such a case,

however.

In this regard, we note that Chancellor Ianni himself stated,

15

at a meeting with the history faculty, that if the plaintiffs

brought a lawsuit alleging a violation of their First Amendment

rights, “they might have a good case.”

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possession and the use of military-type weapons and especially to their

exhibition on campus even in an historical context. Freedom of expression,

even in a nonpublic forum, may be regulated only for a constitutionally

valid reason; there was no such reason in this case.14

B. Reasonable Public Official

Ianni further claims that at the time the photographs were

suppressed, a reasonably objective chancellor of a large public university

would not have known that the conduct violated the plaintiffs’

constitutional rights. We again disagree.15

As a basic matter, the Supreme Court stated in 1969 “[i]t can hardly

be argued that either students or teachers shed their constitutional rights

to freedom of speech or expression at the schoolhouse gate.” Tinker, 393

U.S. at 506. Indeed, a year earlier, the idea that a faculty member could

be compelled to relinquish First Amendment rights in connection with

employment at a public school was “unequivocally rejected” by the Supreme

Court. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
Some circuits have been slightly more charitable on this

16

timing issue. In Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994),

the Sixth Circuit stated: “[S]tate officials must have some time

to adjust to and learn about judge-made law as it evolves . . . .

This [the Sixth] and other circuits have struggled to decide how

long after a decision state officials have to become familiar with

‘the law.’” Id. at 306. Lintz then cited an extensive list of

cases allowing from twelve days to five months.

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Applying these long established tenets to this case, we note that our

earlier quotation from Rosenberger, 115 S. Ct. at 2517, links its

observations on viewpoint discrimination within a nonpublic forum to Perry,

460 U.S. at 46, a teacher speech case decided by the Supreme Court in 1983.

Similarly, the language proscribing viewpoint discrimination found in

Lamb’s Chapel, 508 U.S. at 394, quotes directly from Cornelius, 473 U.S.

at 806, a 1985 decision. In addition, Widmar’s holding prohibiting

unreasonable discrimination among “types of expression” within a specific

forum, clearly made in the context of an analysis of the purpose of the

particular forum, was available as early as 1981. Widmar, 454 U.S. at 265-

67, 277.

Judge Heaney, writing for a panel of this court, recently noted that

once a controlling opinion has been decided, a constitutional right has

been clearly established. See Waddell v. Forney, 108 F.3d 889, 893 (8th 16

Cir. 1997). And, admittedly, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). But, as noted by Judge McMillian in his opinion for the court in

Hayes v. Long, 72 F.3d 70, 73 (8th Cir. 1995), “[t]his court has taken a

broad view of what constitutes ‘clearly established law’ for the purposes

of a qualified immunity inquiry.” More particularly, he stated, with

regard to “clearly established” law, that:
The record establishes, as noted, that the history department

17

contacted the law department of the University for an opinion on

the propriety of the display. One may only presume that Chancellor

Ianni had equal or superior resources at his disposal if he had

questions about the contours of these well-defined constitutional

rights.

-18-

“In order to determine whether a right is clearly established,

it is not necessary that the Supreme Court has directly

addressed the issue, nor does the precise action or omission in

question need to have been held unlawful. In the absence of

binding precedent, a court should look to all available

decisional law including decisions of state courts, other

circuits and district courts. . . .”

Id. at 73-74 (quoting Norfleet v. Arkansas Dep’t of Human Servs., 989 F.2d

289, 291 (8th Cir. 1993)).

Here, of course, we have long established, binding precedent totally

supportive of plaintiffs’ claims. The Supreme Court and this court have

both clearly and directly spoken on the subject on numerous occasions and

in years long prior to the 1992 censorship by Ianni. Accordingly,

Chancellor Ianni’s “not clearly established” claim must be rejected.17

C. Pickering Balancing Argument

Finally, Chancellor Ianni seizes upon the two incidents involving

threats to Ms. Featherman and Ms. Trolander in an attempt to interject

First Amendment precedent not applicable to this dispute. We reject this

endeavor. 

Ianni contends that the plaintiffs’ rights to express this particular

speech must additionally be balanced against UMD’s right to suppress it in

the name of workplace efficiency and harmony. He 
-19-

urges this court to invoke a line of employee discipline and termination

cases to summarily dispose of any violation of constitutional rights. See,

e.g., Pickering, 391 U.S. 563 (teacher discharged for writing letter to

newspaper criticizing school board and school superintendent); Connick v.

Myers, 461 U.S. 138 (1983) (assistant district attorney discharged for

distributing questionnaire concerning office morale, policy and confidence

in supervisors). We decline to do so here.

The Supreme Court, in Pickering, held that in an employee discipline

case, a court must determine whether the employee’s speech was on matter

of public concern, and if so, whether the employee’s interest in that

speech is outweighed by the governmental employer’s interest in promoting

the efficiency and effectiveness of the services it performs. Pickering,

391 U.S. at 568. In conjunction with his argument in favor of this

balancing requirement, Ianni also advances the theory that government

employers must always be granted qualified immunity under such

circumstances. We not only find that the Pickering balancing test is

inapposite under these facts, but we also disagree with Ianni’s analysis

of qualified immunity law. 

The Pickering standard applies to determinations of whether a public

employer has properly discharged or disciplined an employee for engaging

in speech. Waters v. Churchill, 511 U.S. 661, 668 (1994); Rankin v.

McPherson, 483 U.S. 378, 384 (1987); Kincade v. City of Blue Springs, 64

F.3d 389, 395 (8th Cir. 1995), cert. denied, 116 S. Ct. 1565 (1996). In

this case, it is argued that there is no adverse employment action (unless

the censorship itself 
The speech at issue in Pickering and Connick was directly

18

critical of the efficiency and operations of the employers’

businesses. Here the speech essentially supported University

operations and extolled the capabilities and interests of certain

faculty members. Moreover, the photographs of Burnham and Marchese

were not presumptively divisive, even in the ambiance of the

threats on campus, nor were they shown to have been a palpable

threat to workplace morale, efficiency or harmony. Compare Tindle,

56 F.3d at 969 (police officer suspended for attending Fraternal

Order of Police party wearing blackened face, bib overalls, black

curly wig and carrying watermelon).

-20-

serves that purpose), against which the plaintiffs’ free speech rights

might be balanced. Indeed, the district court found: 18

The gravamen of the complaint is not whether the photographs

were the basis for adverse employment action; rather, the

gravamen of the complaint is whether the ideas conveyed in the

photographs fall within any of the exceptions to the general

rule “that under our Constitution, the public expression of

ideas may not be prohibited merely because the ideas are

themselves offensive to some of the hearers.”

Burnham, mem. op. at 10 (quoting Street v. New York, 394 U.S. 576, 592

(1969)). 

We need not decide whether an adverse employment action can be

fashioned from the evidence, however, because Ianni has factually failed

to put the Pickering balancing test in play. See, e.g., Kincade, 64 F.3d

at 398. As this court recently observed, “it is critical to determine

whether the defendants [employers] have put the Pickering balancing test

at issue by producing evidence that the speech activity had an adverse

effect on the efficiency of the . . . employer’s operations.” Grantham v.

Trickey, 21 F.3d 289, 294 (8th Cir. 1994). As the district court found,

“[t]his is not an employment case where there is a threatened disruption

to the efficient delivery of services.” Burnham, mem. op. at 9; see also

Pickering, 391 U.S. at 570 (noting 
-21-

that “no evidence to support [professional damage to the school board and

superintendent] was introduced at the hearing” and rejecting the workplace

disruption argument of the board.)

As in our Kincade decision, we find that Ianni has failed to carry

his burden on this prong of the Pickering rationale. Ianni has made no

factual showing that the suppressed conduct “substantially” interfered

with the efficiency of the workplace or UMD’s educational mission.

Kincade, 64 F.3d at 398. “In our system, undifferentiated fear or

apprehension of disturbance is not enough to overcome the right to freedom

of expression." Tinker, 393 U.S. at 508. It is simply unreasonable, as

a matter of law, to assert that a photograph of a cardboard laurel-wreath

bedecked faculty member holding a Roman short sword, as part of an elevenperson faculty display, somehow exacerbated an unestablished ambiance of

fear on the UMD campus. 

And, even if the Pickering balancing test were somehow applicable,

which it is not, Ianni’s defense would fail. As stated earlier, the

Pickering balancing test requires a court to determine whether the

employee’s speech involves a matter of public concern and, if so, how the

employee’s rights in the speech balance against the occurrence of workplace

disruption. Both of these questions are issues of law for the court to

decide. Kincade, 64 F.3d at 395. 

To determine whether the speech at issue here involves a matter of

public concern, we examine the “content, form and context” of the speech,

given the record as a whole. Connick, 461 U.S. at 147-48. To be

considered speech on a matter of public concern, the discourse must relate

to a “matter of political, social, or other concern to the community.” Id.

at 146; see also Kincade, 64 F.3d at 396. That definition includes many

types of 
-22-

speech, excluding mainly speech relating merely to internal office

grievances. Connick, 461 U.S. at 148-49; see also Cox v. Dardanelle Pub.

Sch. Dist., 790 F.2d 668, 672 (8th Cir. 1986). 

The history exhibit, displayed for public viewing, was intended, at

least, to inform the University and surrounding community of the views and

specialties of the history department and its faculty. As such, the speech

involved more than a mere internal office grievance. See, e.g., Cox, 790

F.2d at 673 (stating “educational theories and practices employed by school

administrators is clearly a question of public concern . . . [h]ow we teach

the young, what we teach them, and the environment in which we teach them

are of the most central concern to every community in the nation”). See

also Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 314 (8th Cir. 1986)

(holding speech involving proposed transfer of teacher was on matter of

public concern due to large turnout at meeting regarding transfer and

teacher interest in the subject); Roberts v. Van Buren Pub. Schs., 773 F.2d

949, 955 (8th Cir. 1985) (holding speech involving content of rules

governing fifth grade field trip was on matter of public concern due to

parental dissatisfaction with and interest in the subject). 

Admittedly, the speech at issue here is not of the utmost public concern

when compared with an assassination attempt against the President, as in

Rankin. 483 U.S. at 381. However, when balancing an employee’s interest

against an employer’s interest, the constitutional standard takes

proportionality into account. “[T]he closer the employee’s speech reflects

on matters of public concern, the greater must be the employer’s showing

that the speech is likely to be disruptive before it may be punished.”

Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.), cert. denied, 116 S. Ct.

173 (1995). The converse is also true. When weighed against the meager

evidence of workplace disruption, the plaintiffs’ speech 
-23-

clearly addresses matters of public concern within the meaning of the

Pickering test. See supra n.3. 

 

Our next consideration is whether UMD’s interest in suppressing the

speech, to purportedly control workplace disruption, outweighs the

plaintiffs’ First Amendment rights in the display. See, e.g., Barnard v.

Jackson County, Missouri, 43 F.3d 1218, 1224 (8th Cir.) (stating pertinent

considerations for Pickering balancing test are “whether the employee’s

speech has a detrimental impact on working relationships where personal

loyalty or confidence is necessary, and whether the speech impedes the

efficient operation of the governmental entity’s function”), cert. denied,

116 S. Ct. 53 (1995). The government employer must make a substantial

showing that the speech is, in fact, disruptive before the speech may be

punished. Waters, 511 U.S. at 673. We recognize that the government, as

an employer, has broader powers in suppressing free speech than the

government as a sovereign. Indeed, we have given some deference to an

employer’s predictions of workplace disruption. Id. However, we have

never granted any deference to a government supervisor’s bald assertions

of harm based on conclusory hearsay and rank speculation. As stated

above, the procedural posture of this case requires us to view the facts

in the light most favorable to the nonmoving party, i.e., the plaintiffs.

In so doing, we note that both Burnham and Marchese, by affidavit,

expressly dispute that a “climate of fear and violence” existed on the

campus, stating that campus life continued as normal, no classes were

suspended or schedules altered and not a single act of violence occurred

on UMD premises. 

Even if we were to attempt to balance the plaintiffs’ free speech

rights against the purported disruption of the pedagogical tasks of UMD,

it is clear that the impact of the speech on UMD’s mission is totally

unproven and unaddressed except in the most 
Underlying our holding today, in some respect, is the

19

recognition of the professors’ academic freedom--“a special concern

of the First Amendment.” University of California Regents v.

Bakke, 438 U.S. 265, 312 (1978). The content-based censorship

which occurred here could easily have a stifling effect on the

“‘free play of the spirit which all teachers ought especially to

cultivate and practice.’” Keyishian v. Board of Regents, 385 U.S.

589, 601 (1967) (quoting Baggett v. Bullitt, 377 U.S. 360, 374

(1964)). 

-24-

conclusory fashion. There is simply no evidence that establishes a nexus

between the two photographs and an exacerbated climate of fear on the

campus or, more importantly, that establishes a relationship between the

photographs and a decrease in the efficiency and effectiveness of UMD’s

educational mission.

In sum, then, upholding Ianni’s approach to the First Amendment would

permit the suppression of too much speech on arbitrary and capricious

grounds. Such a holding would presumably permit the suppression of Ms.

Featherman’s advocacy of gender and cultural diversity at UMD if Ianni felt

that such speech contributed to an inefficient and negative working and

learning environment on the campus because of unlawful or vehement

opposition to Featherman’s views. “Vigilance is necessary to ensure that 19

public employers do not use authority over employees to silence discourse,

not because it hampers public functions but simply because superiors

disagree with the content of employees’ speech.” Rankin, 483 U.S. at 384.

 

Finally, we hold that Ianni’s failure to establish workplace

disruption or, at least, to make a connection between the plaintiffs’

speech and the workplace atmosphere, is fatal to his claim of qualified

immunity under a Pickering analysis. Kincade is both directly on point and

directly contradictory to Ianni’s position. Kincade was discharged by Blue

Springs for exercising 
-25-

his free speech rights. Because Kincade’s speech, as here, touched on a

matter of public concern, the Pickering balancing test was employed to

review the district court’s denial of a motion for summary judgment on

qualified immunity grounds. After noting that the only evidence of

workplace disruption was conclusory statements to that effect by the mayor

and other city officials, Judge Hansen stated:

the Appellants [city officials] have merely asserted that

Kincade’s speech adversely affected the efficiency of the

City’s operations and substantially disrupted the work

environment without presenting any specific evidence to support

this assertion. They therefore have not put the Pickering

balancing test at issue, and accordingly, we reject their claim

that they are entitled to qualified immunity because free

speech questions for public employees, as a matter of law,

cannot be “clearly established.”

Kincade, 64 F.3d at 398-99. This is precisely the factual and legal

situation we have in this case. 

III. CONCLUSION

The district court correctly found that Ianni is not entitled to

qualified immunity from a suit seeking money damages for the violation of

plaintiffs’ First Amendment rights. Accordingly, we affirm. 
-26-

McMILLIAN, Circuit Judge, with whom JOHN R. GIBSON, Circuit Judge, joins,

dissenting.

We respectfully dissent. In our original panel opinion, Burnham v.

Ianni, 98 F.3d 1007 (8th Cir.), vacated, 98 F.3d 1028 (1996), we fully set

forth our analysis of this case. We therefore rest upon our original panel

opinion as providing the reasons why we believe Ianni should be afforded

qualified immunity in the present case. The following is a response to the

majority opinion.

I.

We begin by noting the conspicuous absence from the majority opinion

of certain undisputed material facts concerning the circumstances in which

this controversy arose -- facts which the majority has all but ignored by

reducing them to a few obtuse sentences and a footnote. See supra at 6,

7 & n.5. By contrast, the district court appropriately devoted four full

paragraphs at the outset of its opinion to these crucial facts aptly

described by the district court as the "milieu" of the case. Burnham v.

Ianni, 899 F. Supp. at 397. As the district court explained: 

In June 1991, Sandra Featherman was appointed to the post

of vice chancellor for [UMD]. Shortly after her appointment

was announced, Featherman began receiving threats. The threats

were bizarre, graphic and frightening:

The dogs are howling, they want blood. There are

footsteps crunching on the forest floor--it's the deer

hunters coming. They're after blood, too. It's the same

dream over and over. The deer hunters stalking--getting

closer and closer, never giving up the hunt, never

putting down their rifles. Overwhelmed by their desire

to kill. 

. . . .
-27-

Federman (sic) no Duluth stay away, we will kidnap you,

the FBI can't protect you. 

The deer hunters.

At the same time that Featherman was being threatened,

forged memoranda bearing the defendant's name, were circulated

in and about the campus. The memoranda referred to an alleged

plot to kidnap Featherman and used the terms "Prince of Death"

and "Deer Hunters." The forged document was circulated through

the mail to various departments and left in hallways of various

campus buildings.

Beginning in March 1992, history Professor Judith

Trolander became the target of threats. The caption on the

flyers left in the hallways of various University buildings

was: "The Imperial Council of Deer Hunters Proclaim Open Season

on Judy Trolander Lesbian Feminist Bitch." The memorandum

purported to reveal Professor Trolander's home address,

addressed questions concerning the appropriate weapons and

provided the reader with potential locations from which to

carry out an attack. Finally, the flyer proclaimed: "Get

cracking you kill crazy buckaroos. Its [sic] OK to kill her,

the Imperial Council rules UMD, the Commission on Women is

dissolved." The flyer specifically addressed Professor

Trolander, but its threat was targeted to all faculty members

who cooperated with Vice Chancellor Ianni's efforts to develop

a diversity program: "[a]ll faculty would be sentenced to death

along with their pets, children and spouses." 

Defendant undertook to calm the concerns of the faculty

regarding these incidents. Despite his distribution of a

memorandum in which he addressed the seriousness with which he

was taking the threats and in which he reiterated his

commitment to the diversity program, the fears of many in the

campus were not alleviated. The investigation of the origin of

the threats continued and the threats continued to hang over

the campus. It is this background against which the substance

of this litigation arose.

Id.
-28-

Not only do we find it necessary to supply these critical facts, we

also caution that there is no legal basis to assume as true facts "derived

from the plaintiffs' pleadings" merely "[b]ecause discovery has not been

conducted in this case." Supra at 2. In ruling on a motion for summary

judgment, the question before the district court, and this court on appeal,

is whether the record, when viewed in the light most favorable to the

non-moving party, shows that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992);

St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).

Where discovery has not been conducted, the record created by the parties

pursuant to Fed. R. Civ. P. 56 might not include the usual panoply of

discovered documents and deposition transcripts, but will include any

affidavits or other documents properly submitted in accordance with Fed.

R. Civ. P. 56(e). If, upon reviewing the record in the light most

favorable to the non-moving party, some material facts asserted in the nonmoving party's pleadings remain genuinely disputed, there is no legal basis

to assume such facts as true merely because discovery has not been

conducted. In the present case, for example, the majority opinion states

"[p]laintiffs dispute that any milieu of concern existed and contend that

the campus atmosphere, whatever it may have been, was not aggravated or

affected by the two photographs." Supra at 7 (emphasis added). The

majority supplements the above-underscored statement by later noting that

"both Burnham and Marchese, by affidavit, expressly dispute that a 'climate

of fear and violence' existed on the campus, stating that campus life

continued as normal, no classes were suspended or schedules altered and not

a single act of violence occurred on the UMD premises." Id. at 23

(emphasis 
-29-

added). Presumably, the majority's assumptions that no milieu of concern

existed at the time the photographs were removed, and that campus life

continued as normal, have formed the basis for the majority's decision to

virtually ignore the facts set forth above. However, according to

undisputed evidence in the record, less than two months before the

photographs were removed, anonymously-written flyers were left in hallways

of various UMD buildings on campus, and those flyers stated the following:

She [Professor Trolander] will be a good target for shooting at

long range. The house has large windows and the terrain is

clear of obstacles in all directions. Shooting from the beach

or even from a boat in the bay or lake Superior is feasible.

A 30-60 rifle with 20X2 Bushnell scope would be a suitable

weapon with dum-dum bullets dipped in poison. Don't forget to

put in a couple of clicks in the crosshairs for windage as the

wind is usually strong there. It is recommended that the

hunter shoot from behind the Surf and Sand Health Center, if

there is return fire from the house it will only kill a few old

people. She is the only occupant of the house, so it is OK to

shoot silhouettes on drawn shades.

Get cracking you kill crazy buckaroos. Its OK to kill her, the

Imperial Counsel rules UMD, the commission on women is

dissolved.

Also, all faculty members ordered to participate in

Featherman's administrative development project will be

sentenced to death along with their pets, children, and spouses

if they comply with these orders. Any one who cooperates with

Featherman will have their target information published.

The deer hunters need target information on Featherman, just

mention where she lives in the faculty club and everything will

be taken care of.

Appellant's Appendix at 38. We certainly agree with the majority's

description of the above-quoted death threat as "deranged." Supra at 6.

However, viewing the record in the light most favorable to plaintiffs and

applying the Rule 56 standard, we would also find 
-30-

plaintiffs' description of campus life as "normal" to be patently

inaccurate. Even the district court stated, consistent with the Rule 56

standard, that, despite Ianni's efforts to assuage concerns on campus, "the

fears of many in the campus community were not alleviated. The

investigation of the origin of the threats continued and the threats

continued to hang over the campus." 899 F. Supp. at 397. As the district

court concluded, "[i]t is this background against which the substance of

this litigation arose." Id.

II.

We now turn to the legal issues presented by this case, beginning

with a reminder of the principles that underlie the doctrine of qualified

immunity. In Anderson v. Creighton, 483 U.S. at 638 (citations omitted),

the Supreme Court explained: 

 

When government officials abuse their offices, "action[s] for

damages may offer the only realistic avenue for vindication of

constitutional guarantees.” On the other hand, permitting

damages suits against government officials can entail

substantial social costs, including the risk that fear of

personal monetary liability and harassing litigation will

unduly inhibit officials in the discharge of their duties. Our

cases have accommodated these conflicting concerns by generally

providing government officials performing discretionary

functions with a qualified immunity, shielding them from civil

damages liability as long as their actions could reasonably

have been thought consistent with the rights they are alleged

to have violated.

The Court then went on to explain:

Somewhat more concretely, whether an official protected

by qualified immunity may be held personally liable for an

allegedly unlawful official action generally turns on the

"objective legal reasonableness" 
-31-

of the action, assessed in light of the legal rules that were

"clearly established" at the time it was taken.

Id. at 639 (citations omitted). In Anderson v. Creighton, the Supreme

Court also addressed the degree of generality versus specificity with which

the relevant legal rule is to be defined for purposes of determining

whether the law was "clearly established" at the time of the relevant

events. Id. The Court explained that, in order for the concept of a

"clearly established" law to comport with the "objective legal

reasonableness" standard set forth in Harlow v. Fitzgerald, 457 U.S. at

819, "the contours of the right must be sufficiently clear that a

reasonable official would understand that what he [or she] is doing

violates that right." Anderson v. Creighton, 483 U.S. at 640. "This is

not to say that an official action is protected by qualified immunity

unless the very action in question has previously been held unlawful . . .

but it is to say that in the light of pre-existing law the unlawfulness

must be apparent." Id. (citations omitted).

We believe, in the present case, that it could not have been apparent

to Ianni that the actions he took were unlawful in light of the preexisting law. Indeed, "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." Scallet v. Rosenblum, No. 96-1138,

1997 WL 33077, at *2 (4th Cir. Jan. 29, 1997) (unpublished) (per curiam)

(Scallet) (disposition reported in table at 106 F.3d 391), cert. denied,

No. 96-1725 (U.S. June 23, 1997).

As we explained in our original panel opinion, the issue of whether

the removal of the two photographs violated Burnham's and Marchese's First

Amendment right to engage in nonverbal expressive behavior is governed by

the Pickering-Connick-Waters line of 
-32-

Supreme Court cases dealing with the First Amendment rights of public

employees. The mere fact that the circumstances of this case are unique

(at least in terms of the controversies that have actually been litigated

in federal court) makes this no less an employment-related case. Thus, the

pertinent case law in existence at the time Ianni removed the photographs

from the display case included the Supreme Court's decisions in Connick and

Pickering, as well as a body of lower federal court decisions which had

applied Connick and Pickering -- none of which were factually similar to

the present case.

Contrary to the majority's assertion, Kincade is not "directly on

point and directly contradictory to Ianni's position." Supra at 25.

Kincade is distinguishable because, in that case, this court held that the

Pickering balancing test had not been put at issue. This court reasoned

that the defendants, city officials, "ha[d] merely asserted that Kincade's

speech adversely affected the efficiency of the City's operations and

substantially disrupted the work environment without presenting any

specific evidence to support this assertion." Kincade, 64 F.3d at 398

(emphasis added) (cited supra at 25). By contrast, in the present case,

Ianni presented specific evidence showing that the photographs were already

having a disruptive effect on the work environment and that their continued

display in the history department display case had the potential to further

disrupt the work environment. Before Ianni ever made the decision to have

the photographs removed, meetings were held, involving Karon, Ianni, the

Kohns, Burnham, Marchese, and other faculty members in the history

department, at which the fate of the two photographs was specifically

addressed. It is clear from the record that feelings were strong on both

sides: some individuals felt that the display of photographs of professors

holding weapons was inappropriate in light of the campus-wide death threats

against Trolander and others; others felt 
-33-

adamantly opposed to removing the photographs for that reason. See

Appellant's Appendix at 50 (internal history department memorandum:

"[s]omehow, this ugly trend of History governance by external

administrators and bureaucrats must be called into account; if the photo

display is our line in the sand, so be it"). With respect to one of the

meetings, Karon stated: 

Chancellor Larry Ianni and I [Karon] met with the history

department faculty on one occasion during the first few days of

May. Department members offered a variety of reasons for not

wanting to take the photos down. Some said the request was an

undue interference with the department, or an attempt to blame

the department for the threats. Others said it was Judy

Trolander's fault. Professor Trolander expressed her concern

that no one knew how upsetting the photos were to her.

Appellant's Appendix at 12 (Affidavit of Judith Karon, ¶ 13).

We think it fair to say that Ianni, as the unlucky decisionmaker in

this employment-related controversy, was between a rock and a hard place.

Regardless of whether he decided to have the photographs removed or left

alone, it was reasonable for him to assume that some faculty members would

be quite upset. In explaining his decision to remove the photographs,

Ianni stated in his affidavit that the situation with which he was dealing

was unique in his experience, that he tried suggesting to the history

department faculty that "it would be an act of collegiality to remove the

photos" and they "should all be sympathetic to the effects of the agitation

on campus," and that, after the history department refused to accept his

suggestion, he ordered the photographs removed with the intent "to try to

maintain a positive and efficient working and learning environment

conducive to the mission of an academic institution." Id. at 7-8

(Affidavit of Lawrence Ianni, ¶¶ 8-11). Ianni himself was not personally

opposed 
-34-

to the photographs. See Supplemental Appendix of Appellees at 37

(Affidavit of Albert Burnham, ¶ 4 ("Ianni stated that he personally saw

nothing wrong with the pictures")). He had them removed because of their

antagonistic effect. 

Plaintiffs have not disputed the truthfulness of Ianni's stated

reason for removing the photographs, nor have plaintiffs alleged or

identified anything in the record to suggest that Ianni had any motive

other than those which he described in his affidavit. Instead, plaintiffs

maintain that it was utterly irrational for Ianni to think that removing

the photographs would serve his stated goal. Looking upon Ianni's actions

with the benefit of hindsight, the majority agrees with plaintiffs and

further concludes that Ianni's actions also violated clearly established

First Amendment law as it existed in May of 1992. We disagree. 

As we have noted, even today the parameters of the First Amendment

protection afforded to university professors' academic speech is not

clearly defined -- much less so at the time this controversy arose. See

Scallet, 1997 WL 33077, at *2. Moreover, viewing the record in the light

most favorable to plaintiffs does not dispel the fact that, no matter what

course of action Ianni had followed with respect to the two photographs,

the end result would have been the dissatisfaction of some faculty members,

and most likely disruption to the work environment -- at least insofar as

those who had already taken sides were concerned. Faced with this highly

unusual and unenviable predicament, Ianni chose to have the photographs

removed, in the hopes of maintaining a positive and efficient working and

learning environment. In our opinion, it is not appropriate, given the

facts of this case, for this court to now decide the qualified immunity

issue on the basis of whether we think Ianni should have dismissed the

concerns expressed by 
-35-

Trolander, Karon, and others as irrational or unjustified; that was a

matter with which Ianni, as the responsible school administrator, was

forced to grapple at that time. The circumstances only permitted him to

accommodate one side's interests or the other's, but not both. We believe

that the Supreme Court has indicated, as a matter of substantive First

Amendment law, that it may not be appropriate for this court to secondguess Ianni's handling of this employment-related matter. As the Supreme

Court stated in Waters, 511 U.S. at 675 (emphasis added): 

The key to First Amendment analysis of government

employment decisions . . . is this: The government's interest

in achieving its goals as effectively and efficiently as

possible is elevated from a relatively subordinate interest

when it acts as sovereign to a significant one when it acts as

employer. The government cannot restrict the speech of the

public at large just in the name of efficiency. But where the

government is employing someone for the very purpose of

effectively achieving its goals, such restrictions may well be

appropriate.

We also reiterate a point emphasized in our original panel opinion.

In considering the weight to be given Ianni's perceptions and predictions

of disruption, the law provides that the disruption need not have been

actual, but may have been merely potential. Id. at 681 (holding, as a

matter of law, that the potential disruptiveness of the speech was enough

to outweigh whatever First Amendment value it might have had); Tindle, 56

F.3d at 972 ("[a] showing of actual disruption is not always required in

the balancing process under Pickering"); accord Jeffries, 52 F.3d at 13

(noting that Waters stresses that actual disruption is not required).

Notably, on this particular point, Kincade does not even mention Waters,

let alone rely on that Supreme Court precedent. In light of Waters, its

progeny, and our understanding of Ianni's predicament in this case, we

conclude that Ianni did not 
In light of the complexities of the law with which we are

20

dealing, including the balancing process required by the First

Amendment and the "clearly established" standard imposed by the

qualified immunity doctrine, we are not swayed by plaintiffs'

allegations that Ianni himself speculated that "if we [plaintiffs]

sued him, he 'would not stand a chance,' or words to that effect."

Supplemental Appendix of Appellees at 38 (Affidavit of Albert

Burnham, ¶ 8); see also id. at 40 (Affidavit of Richard Morris

(stating, for example, that "[w]hile I do not recall the exact

words used by Chancellor Ianni, I understood the import of his

remarks to be that he believed that the censorship of the

photographs violated the legal rights of the persons involved.")).

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violate Burnham's or Marchese's First Amendment right to engage in

nonverbal expressive conduct when he ordered the removal of the two

photographs from the display case; in any event, he certainly did not

violate their clearly established First Amendment rights. "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, [Vice Chancellor Ianni, who is] not trained in the law could

hardly be expected to recognize the contours of [Burnham's and Marchese's]

rights." Scallet, 1997 WL 33077, at *2. We would therefore hold that

Ianni is entitled to qualified immunity with respect to the claims brought

by Burnham and Marchese based upon their alleged nonverbal expressive

conduct.20

Finally, we believe that our position is well-grounded in Eighth

Circuit jurisprudence. In Grantham v. Trickey, 21 F.3d at 292-95, Judge

Hansen, writing for a panel of this court, set forth a comprehensive and

balanced historical analysis of Eighth Circuit case law dealing

specifically with the applicability of qualified immunity in the public

employee speech context. In Grantham v. Trickey, id. at 295, this court

affirmed the district court's grant of summary judgment for the defendants

on the basis of qualified immunity upon determining that it was appropriate

under the 
A very similar view has been expressed by our court in other 21

constitutional contexts. For example, in Manzano v. South Dakota

Dep't of Social Servs., 60 F.3d 505, 509-11 (8th Cir. 1995), we

observed that the constitutionally protected liberty interest which

parents have in familial integrity is not absolute, and when a

parent alleges that official conduct infringed upon that right, the

merits of that constitutional challenge are determined by a

balancing test. We then observed that "[t]he need to continually

subject the assertion of this abstract substantive due process

right to a balancing test which weighs the interest of the parent

against the interests of the child and the state makes the

qualified immunity defense difficult to overcome." Id. at 510.

"Moreover, the requirement that the right be clearly established at

the time of the alleged violation is particularly formidable." Id.

(citing cases). In Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.

1987), also a case involving the constitutional right of familial

integrity, we applied the doctrine of qualified immunity after

noting our agreement with the Seventh Circuit's observation in

Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479

U.S. 848 (1986), that, when a determination of constitutional

protection turns on application of a balancing test, "the right can

rarely be considered 'clearly established,' at least in the absence

of closely corresponding factual and legal precedent."

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circumstances of that case to follow the analysis of Bartlett v. Fisher,

972 F.2d 911 (8th Cir. 1992) (reversing the district court's denial of

summary judgment for the defendants on the basis of qualified immunity).

In Bartlett v. Fisher, id. at 914, 916-17, Judge Loken also took care to

recognize the historical and policy-based underpinnings of the qualified

immunity doctrine in this area of First Amendment law. In reasoning that

the defendants in that case were entitled to qualified immunity, Judge

Loken noted "[a]t least five circuits have concluded that, because

Pickering's constitutional rule turns upon a fact-intensive balancing test,

it can rarely be considered 'clearly established' for purposes of the

Harlow qualified immunity standard." Id. at 916 (emphasis added) (quoted 21

in Grantham v. Trickey, 21 F.3d at 293). We, too, agree with this general

statement of the law and think that the present 
We are by no means suggesting that qualified immunity will

22

protect public officials in every instance where the applicable

constitutional standard involves a balancing test. As plaintiffs

have pointed out, this court has on at least two occasions denied

qualified immunity to school officials who violated teachers' First

Amendment rights under Pickering. See Southside Pub. Schs. v.

Hill, 827 F.2d 270, 272-75 (8th Cir. 1987) (denying qualified

immunity to defendants, school officials, who had constructively

terminated elementary school teachers in retaliation for having

written a letter to the state department of education complaining

about violations of the federal statutory requirement that

handicapped children be provided a free appropriate public

education); Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 318

(8th Cir. 1986) (qualified immunity denied to school superintendent

and school board members who fired school principal for the stated

reason, among others, that he had publicly criticized their

decision to transfer his wife from the high school to the junior

high school level).

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case is not an exception. Even if we were to agree with the majority of 22

this en banc court that Ianni has violated plaintiffs' clearly established

First Amendment rights, we would favor acknowledging the above-quoted rule

of law, which takes into account the tensions and subtleties that lie in

this area of First Amendment jurisprudence, particularly when superimposed

with the doctrine of qualified immunity. 

III.

We now turn to the forum-related arguments. Plaintiffs, including

the Kohns, assert a violation of their First Amendment right to use the

display case as a means "to publicize some of the areas of expertise and

interest of the History Department's faculty, while at the same time

portraying the faculty in an informal, somewhat humorous way." In

analyzing this claim, we agree with the district court's conclusion that

the history department display case was a nonpublic forum. 899 F. Supp.

at 403 (focusing on facts that the display case was under UMD's control,
For example, nothing prevented plaintiffs from replacing the 23

removed photographs with similar pictures of Burnham and Marchese

without weapons, while continuing to publicize through written

descriptions their interests in American military and classical

history.

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that UMD allowed members of the history club to use it upon request, and

that the display case was dedicated to use of the UMD history department

for disseminating information about the department). Because the display

case was a nonpublic forum, the issue as to whether a First Amendment

violation resulted from the removal of the two photographs turns on whether

"the distinctions drawn [were] reasonable in light of the purpose served

by the forum and [were] viewpoint neutral." Cornelius, 473 U.S. at 806.

So long as these requirements are met, "[c]ontrol over access to a

nonpublic forum can be based on subject matter." Id. "The reasonableness

of the Government's restriction of access to a nonpublic forum must be

assessed in the light of the purpose of the forum and all the surrounding

circumstances." Id. at 809. We believe that Ianni's decision to remove

the two photographs was not an unreasonable subject matter restriction in

light of the purpose of the forum, which was to disseminate information

about the history department, and because his actions were narrowly

tailored and left open other channels through which Burnham's and

Marchese's interests in classical and American military history could still

be publicized. See Perry, 460 U.S. at 53 ("the reasonableness of the

23

limitations . . . is also supported by the substantial alternative channels

that remain open"). Moreover, Ianni has demonstrated beyond any dispute

that his removal of the photographs had nothing whatsoever to do with any

viewpoint which the photographs may have expressed. Contrary to the

majority's conclusion, this was not "an effort to suppress expression

merely because [Ianni] oppose[d] the speaker[s'] view[s]." Id. at 46.

Burnham himself alleges that "Ianni stated that he personally saw nothing

wrong with the 
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pictures." Supplemental Appendix of Appellees at 37 (Affidavit of Albert

Burnham, ¶ 4). Ianni was motivated solely by his desire to address the

potential disruptiveness of the photographs, which had already been

foreshadowed by the diametrically opposed views expressed at the history

department meetings.

The majority states that "[t]he photographs of Professors Burnham and

Marchese expressed the plaintiffs' view that the study of history

necessarily involves a study of military history, including the use of

military weapons." Supra at 15. There is absolutely nothing in the record

stating or implying that Ianni or anyone else opposed such a view about the

study of history. The majority further states that Ianni had the

photographs removed "[b]ecause other persons on the UMD campus objected .

. . to allowing this viewpoint to be expressed in this particular way."

Id. This is precisely the point that we have been making all along --

Ianni was attempting to address the potential disruptiveness of the

photographs, not any viewpoint expressed by them. Moreover, his actions

were not unreasonable in light of the circumstances. Nothing in his

actions prevented plaintiffs from expressing the above-described message

through other means -- which, in fact, they clearly could do through the

exhibit's written descriptions of the professors' academic interests. See

Supplemental Appendix of Appellees at 30 (Affidavit of Ronald Marchese, ¶

9 ("Professor Burnham listed U.S. Military History among his principal

interests")). We also think the reasonableness of Ianni's actions is

supported by the facts that, after school resumed the following fall, the

two photographs were posted in the student center and Ianni took no action

at that time because "[t]he atmosphere was substantially calmer after the

summer break of 1992." Appellant's Appendix at 8 (Affidavit of Lawrence

Ianni, ¶ 12).
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In sum, we would hold as a matter of law that Ianni did not violate

plaintiffs’ First Amendment rights by regulating the use of the display

case. We most certainly believe that his actions did not violate any

clearly established First Amendment rights and, thus, he should be afforded

qualified immunity with respect to plaintiffs’ forum-related claims.

IV. 

Ianni did not violate any of plaintiffs' First Amendment rights when

he ordered the removal of the two photographs from the display case. More

importantly, given the "background against which the substance of this

litigation arose," 899 F. Supp. at 397, and the lack of clarity in the

applicable law as it existed in May of 1992, Ianni should be afforded

qualified immunity. He should be spared from having to further defend

himself in this litigation and from having to pay money damages to UMD

history professors Albert Burnham and Ronald Marchese and former UMD

students Michael Kohn and Louise Kohn.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.