* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-60021

Summary Calendar

_______________

ANTHONY MARINELLO,

Plaintiff-Appellant,

VERSUS

PHILLIP A. BUSHBY and DWIGHT MERCER,

Individually and in Their Official Capacities,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(1:95-CV-167-D-D)

_________________________

November 17, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Anthony Marinello appeals a summary judgment on his First

Amendment right not to speak claim and a judgment as a matter of

law (“j.m.l.”) on his freedom of speech claim. Finding no error,

we affirm.

I.
 

1 The program requires four years of study, but, at the time, applicants

had to reapply each of the four years for admission to the next phase. Because

of poor performance in a class at the end of the second phase, Marinello entered

the third phase on academic probation.

 

2 Marinello also sent the letter to other members of the food animal

faculty and administration.

2

In the fall of 1994, Marinello was in his third year of a

four-year program pursuing a degree in veterinary medicine from the

College of Veterinary Medicine (“CVM”) at Mississippi State

University.1 As part of his course work, he participated in a food

animal rotationSSa small class with hands-on experience and several

faculty instructors. He complained, both in person and by letter,

to Roger Easley, a professor with certain administrative

responsibilities, that one of the instructors, Wayne Groce, had

treated him unfairly.2 Easley had Marinello complete the rotation

without further instruction from Groce. Even without Groce’s

input, Marinello received a “D.”

By a letter distributed to veterinary faculty and the dean,

defendant Dwight Mercer, Marinello appealed the grade by way of a

letter that contained statements asserting unprofessional,

unethical, collusive, and corrupt conduct on the part of several

faculty members, including Groce, Easley, Bruce Clark, the course

leader, and Sherrill Fleming, one of the other rotation

instructors. The appeal found its way to the Academic and

Professional Standards Committee (“APSC”), the CVM body responsible

for handling grade appeals, which recommended that the dean uphold

the “D” grade. Marinello was so advised.

Meanwhile, by letter to the dean, Easley complained that
 

3 The APSSC was established specifically to hear this complaint, because

Easley had requested that one member of the APSC who worked under Easley be

recused to avoid the appearance of impropriety. Two other individuals, including

a student, were added to the APSC, forming the select committee.

3

Marinello had violated standards of reasonable professional

behavior by making false accusations, distortions of facts, and

slanderous comments in his grade appeal letter. Easley formally

requested a review by the APSC of Marinello’s conduct.

The dean notified Marinello of the professor’s charges and

referred the matter to the Academic and Professional Standards

Select Committee (“APSSC”).3 The APSSC was to consider both

Easley’s complaint and Marinello’s claim, articulated in his grade

appeal letter, that he had been verbally harassed by Groce and

mistreated by other faculty members. Marinello was notified of the

committee’s hearing and given the opportunity to submit documents,

identify witnesses he wanted interviewed, and make a personal oral

presentation to the committee.

The APSSC found that in the letter appealing his grade,

Marinello had made false statements regarding faculty. It found

further that the statements violated the professional guidelines

applicable to veterinary students and practicing veterinarians.

In his letter to Marinello reporting the APSSC’s findings, the

dean informed Marinello that he was being placed on disciplinary

probation as a result of his breach of the conduct normally

expected of a professional student and directed Marinello, inter

alia, to provide the dean with an essay synopsizing the Principles

of Veterinary Medical Ethics and discussing the application of
4

those principles to the actions Marinello had taken during the

grade appeal process, and to set up a meeting to discuss the

synopsis and events with the dean. The dean’s letter advised

Marinello that his admission to phase four (final year) of his

studies was contingent on his compliance with the dean’s

directions.

Marinello sought review by a university committee of the grade

appeal, the complaints regarding his letter, and the dean’s

resulting disciplinary action. This committee also upheld the

grade determination and ethics violation; it referred the

disciplinary matter back to the dean. When his admission to phase

four of his veterinary training was denied, ostensibly because of

his failure to complete the dean’s assignment, Marinello filed this

action.

II.

Marinello sued Mercer and Phillip Bushby, Director of Academic

Programs, alleging, inter alia, that the dean’s writing assignment

violated his First Amendment right not to speak and that he was

denied admission to his fourth year of veterinary school in

retaliation for the exercise of his free speech rights in his grade

appeal letter. After initially granting a temporary restraining

order requiring Marinello’s admission, the district court denied a

preliminary injunction, ruling that Marinello had failed to carry

his burden of establishing the existence of a substantial

likelihood that he would prevail on the merits. We affirmed. See
5

Marinello v. Bushby, No. 95-60374 (5th Cir. Jan. 25, 1996).

The court then granted defendants’ motion for summary judgment

on the claim that the writing assignment violated Marinello’s right

not to speak. The retaliation claim went to trial. The court

granted defendants’ motion for j.m.l. after hearing Marinello’s

evidence. Marinello appeals both of these rulings.

III.

A.

We review summary judgment de novo, viewing the facts and

inferences in the light most favorable to the nonmovant. See Hall

v. Gillman Inc., 81 F.3d 35, 36-37 (5th Cir. 1996). Summary

judgment is appropriate if "there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a

matter of law." FED. R. CIV. P. 56(c); accord Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

“[N]either students [nor] teachers shed their constitutional

rights to freedom of speech and expression at the schoolhouse

gate.” Tinker v. Des Moines Indep. Sch. Dist., 343 U.S. 503, 506

(1969). In limited situations, the First Amendment extends to

protect the right not to speak. See, e.g., Wooley v. Maynard,

430 U.S. 705, 714 (1977); West Virginia State Bd. of Educ. v.

Barnette, 319 U.S. 614, 642 (1943). We are aware of no case,

however, in which the right not to speak has been found outside the

context of governmental compulsion to disseminate a particular

political or ideological message. See United States v. Sindel,
 

4 See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986)

(“Nothing in the Constitution prohibits states from insisting that certain modes

of expression are inappropriate and subject to sanctions. The inculcation of

these values is truly the 'work of the schools.'”).

6

53 F.3d 874, 878 (8th Cir. 1995) (citing decisions).

Even assuming the right not to speak reaches beyond such a

narrow setting, state school officials possess broad discretion in

the management of school affairs, and we will not offhandedly

interfere with the “daily operation of school systems.” Campbell

v. St. Tammany Parish Sch. Bd., 64 F.3d 184, 187-88 (5th Cir.

1995). Educators have a plain and valid interest in carrying out

the educational mission of their school, and that mission justifies

restrictions on speech that would not be valid outside the

educational context.4

The CVM trains students to become doctors of veterinary

medicine. Part of that education includes the inculcation of the

professional standards that veterinarians must follow. Indeed, as

we noted in the first appeal, “[t]he standard by which the college

regulated Marinello’s speech mirrors that standard by which he

would be measured once admitted to the profession for which his

degree was to prepare him. The school’s efforts constituted a

legitimate educational mission.” Marinello at 4-5.

Marinello does not challenge the ethical standards the CVM

applied to his conduct. Rather, he simply argues that the writing

assignment violated the First Amendment. 

Regardless of whether that assignment required an admission

that he violated the rules of professional ethics applicable to
7

veterinarians, the writing assignment did not violate Marinello’s

right not to speak. The APSSC found that he had violated the rules

of professional ethics. Fulfilling the CVM’s pedagogical mission,

the dean conditioned admission to the fourth year of school on

completion of an assignment addressing those very rules in the

context of Marinello’s actions. 

That no other student had to complete this academic assignment

is of no moment, because no other student found himself in

Marinello’s situation. The dean apparently believed that, having

been placed on disciplinary probation for an ethics violation,

Marinello needed to exhibit an understanding of the ethics rules

before continuing his education. The assigned academic exercise

assigned was designed to accomplish just that. 

We never before have found a student possesses a First

Amendment right to refuse an academic assignment, and we decline to

do so now. Summary judgment was appropriate.

B.

We review a j.m.l. de novo. See Freeman v. County of Bexar,

142 F.3d 848, 850 (5th Cir. 1998); Hidden Oaks Ltd. v. City of

Austin, 138 F.3d 1036, 1042 (5th Cir. 1998). “[W]e apply the same

standard as the district court, considering all evidence with all

reasonable inferences in the light most favorable to the non-moving

party.” Id. “We affirm if the facts and inferences point so

strongly and overwhelmingly in favor of one party that no

reasonable juror could arrive at a verdict contrary to the district
 

5 See Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1423 (5th Cir. 1997);

Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.), cert. denied, 118 S. Ct. 603

(1997); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

283-87 (1977).

 

6 Marinello complains that the district court improperly shifted the burden

of proving the truth of the letter’s content. The plaintiff, however, bears the

burden of proving, by a preponderance of the evidence, every element of the cause

of action. 

The first element is that the letter constitutes protected speech. If the

letter contains statements Marinello knew were false or made with a reckless

disregard for their truth, the letter is not protected speech. Therefore,

Marinello must come forward with at least some evidence that the speech does not

contain knowingly false statements or statements made with a reckless disregard

for the truth. See Libra v. City of Litchfield, 893 F. Supp. 1370 (C.D. Ill.

1995). 

8

court’s conclusion. We reverse if we find substantial evidence

upon which reasonable jurors might reach different conclusions.”

Id. (quotations omitted).

To prevail on his claim that the CVM denied him admission to

his fourth year in retaliation for the exercise of his right to

free speech, Marinello must establish that (1) the grade appeal

letter constitutes protected speech and (2) the protected speech

was a substantial or motivating factor in the decision to deny his

application for admission.

5 While we are inclined to agree with

the district court that Marinello failed to establish that the

letter constitutes protected speech,6 we instead affirm on the

basis of the court’s finding that Marinello failed to establish the

second prong. 

Indeed, Marinello utterly has failed to proffer evidence to

allow a jury to conclude that his speech was a substantial or

motivating factor in the decision to deny him admission to the

fourth phase. Because he failed to establish a prima facie case,

the court properly granted j.m.l.
9

The record is devoid of any direct evidence that the

statements in the letter were a factor in the decision not to admit

Marinello to the fourth phase. Indeed, Marinello did not even

assert as much in his direct examination. To the contrary, aside

from an inference that could be drawn from one colloquy between

Marinello and counsel, all the evidence substantiates quite a

different conclusion: The CVM did not admit Marinello to the

fourth phase because he had failed to comply with an explicit

prerequisite to admissionSSto write a synopsis of the Principles of

Veterinary Medicine, apply them to his letter, and meet with the

dean to discuss them.

The only evidence that Marinello’s letter was a substantial or

motivating factor in the decision not to readmit him comes from his

direct examination, in which Marinello attempted to establish that

he met the requirements by a paragraph in a letter written after a

reminder that he had not completed the assignment and by a brief

discussion with Dr. Nelson, who met with Marinello on the dean’s

behalf. The inference could be drawn that, because Marinello had

met the requirements of the assignment, the CVM denied him

admission in retaliation for his speech. 

But Marinello testified on cross-examination that at the

alleged meeting he declined to offer the letter as the required

synopsis. Furthermore, he later was asked, “you did not get it

completed, right, the assignment?” Marinello responded, “No, sir,
 

7 On direct, Marinello was asked, “is this the letter that ultimatelySS

that the dean required you to write a synopsis about and that you were ultimately

exposed [sic] when you didn’t comply with that requirement? Is that the letter?”

He responded, “I believe so, yes.”

10

I did not.”7 Even if we consider the letter sufficient to meet the

synopsis requirement, however, Marinello refused to discuss it with

Nelson when offered the opportunity, thus failing to satisfy the

final requirement of the assignment.

All other evidence suggests Marinello was denied admission to

his fourth year for failing to comply with the requirements of the

assignment. This was the reason offered by the dean in his crossexamination and is the reason apparent on the face of the letters

exchanged between Bushby and Marinello in the spring of 1995, when

he was denied admission. 

Indeed, these letters negate the inference that Marinello was

denied admissions despite his putative meeting of the requirements.

As was brought out in his cross-examination, the May 9 letter

informed him that he had been denied admission for failing to

complete the assignment. It was his response on May 15 that

contained the paragraphs he attempted to characterize as a synopsis

during litigationSSa response coming six days after he had already

been denied admission to the fourth phase.

Finally, the record shows that the school could have expelled

him for violating the ethical rules, which the APSSC found he had

done. Had the school truly intended to retaliate against Marinello

for his speech, the dean would not have given him the opportunity

to apply to the fourth phase if he had met the explicit
 

8 In reaching this conclusion, we necessarily reject the argument that the

letter remains a substantial factor in the retaliation because the assignment

resulted from Marinello's writing the letter. Having found that the assignment

did not violate Marinello’s constitutional rights, and that no jury could find

that the school retaliated for the letter per se, we decline to conclude that the

letter motivated the retaliation nonetheless because the assignment would not

have been given but for the letter. Such a conclusion would take too attenuated

a view of the letter’s impact. By failing to show proximate causation, Marinello

failed to offer substantial evidence that the letter was a substantial or

motivating factor for the retaliation itself.

11

requirements of the assignment. If they truly wanted to retaliate

by keeping him out of the CVM, Bushby and the dean would not have

reminded Marinello of the assignment and provided numerous

opportunities to comply. Indeed, even the May 9 letter informing

him that he would not be admitted to the fourth phase, and the

May 16 letter reiterating that the failure to comply with the

assignment was the ground for that decision, provided him with the

opportunity to complete the assignment and apply for admission to

the fourth phase. Because Marinello failed to establish a prima

facie case, j.m.l. was appropriate.8

AFFIRMED.