* 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this opinion should not be published and is not precedent except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. 97-30033

TIMOTHY VANCE, 

Plaintiff-Appellant, 

versus

BOARD OF SUPERVISORS OF 

SOUTHERN UNIVERSITY, doing 

business as Southern University

at New Orleans; ROBERT B. GEX, 

Chancellor; MELINDA BARTLEY, 

Vice Chancellor; DR. GUILLARNE 

LEARY, 

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of Louisiana

(96-CV-2196)

August 7, 1997

Before KING, DUHÉ and WIENER, Circuit Judges. 

PER CURIAM:*

Plaintiff-Appellant Timothy Vance, Ph.D, formerly a

probationary tenure track assistant professor at Southern
2

University at New Orleans (SUNO) appeals from the district court’s

dismissal, pursuant to Federal Rule of Civil Procedure 12(b)(6), of

his complaint against Defendants-Appellees implicating purported

First Amendment free speech violation in the context of academic

freedom. More particularly, Vance’s complaint alleged that he was

denied promotion and his teaching contract with SUNO was allowed to

expire without being renewed in retaliation for his purportedly

protected speech arising from an incident involving a former

student’s failing a final exam in Vance’s psychology course,

passage of which was a prerequisite to the student’s graduating

with a Bachelor’s degree in psychology. We affirm the district

court’s dismissal of Vance’s action, albeit for reasons different

from those given by the district court. 

I

In what should have been her last semester before receiving a

Bachelors degree from SUNO with a major in psychology, one of

Vance’s students received a failing grade in a core psychology

course required for graduation with such a major. According to

Vance’s complaint, the student complained to the administration, as

a result of which Defendant-Appellee Wanda Bartley, Vice Chancellor

for Academic Affairs, is alleged to have entreated Vance to grant

the student a passing grade so that she could graduate on schedule.

Vance refused, after which the student (like several others

similarly situated) was offered an opportunity to re-take the final

exam, but she declined to do so. Vance alleged further that when
 

247 F.3d 1427 (5th Cir. 1995) (en banc). 

3

he attended the spring graduation at SUNO he noticed the student in

question lining up in academic regalia to participate in the

graduating ceremonies; that he went to his office and prepared a

written ultimatum, threatening to bring formal charges if that

student were permitted to participate in the ceremonies and

graduate; that he delivered the ultimatum to Vice Chancellor

Bartley; and that as a result the student was not allowed to

participate in the ceremony. When subsequently, despite an

allegedly unblemished record at SUNO, Vance was denied appointment

as acting or interim department head and, later, his teaching

contract was not renewed, he filed the instant suit claiming

retaliation for his part in the graduation incident. After giving

Vance an opportunity to advise it more specifically, pursuant to

Schultea v. Woods,

2 the district court dismissed Vance’s action for

his failure to plea with specificity sufficient to support his

otherwise conclusionary allegations of the purported nexus between

his putative protected speech and SUNO’s unexplained termination of

his employment. 

II

It is well settled that on appeal we may affirm the ruling of

the district court for reasons that are different from those given

by that court. In this case we view as the most appropriate first

step in our analysis a determination whether the speech in question
4

is protected, i.e., whether Vance spoke on matters of general

public and community concern —— in which case his speech would be

entitled to protection under the academic freedom facet of the

First Amendment —— or spoke instead solely as an employee

principally concerned with issues affecting his employment

relationship with his governmental employer. When we view the

facts alleged by Vance in the light most favorable to him and make

all reasonable inferences in his favor, we are left with the

distinct impression that the particular speech in this case began

and ended as employment related communication, never rising to the

level of general community concern, and thus is not entitled to

constitutional protection. 

The speech in question comprised only a few exchanges between

Vance and Bartley (and possibly the student in question) over a

short period of time. Essentially, the speech involved a single

grade on a single examination (and related work) by a single

student in a single class taught and tested by one professor

(Vance), and the brief ensuing exchange of correspondence between

that sole professor and a sole administrator (Bartley).

Specifically, the student failed the final exam and thus could not

graduate; Bartley attempted to get Vance to change the grade from

failing to passing so that the student could graduate; Vance

refused; when Vance spotted the student in the vicinity of the

impending graduation exercises, dressed to participate in them, he

issued a terse written ultimatum to Bartley either to prevent the
5

student’s participation in graduation or be prepared to defend a

formal charge that Vance would bring; Bartley elected to defuse the

squabble by having the student removed from the graduation

exercises; and, having achieved his narrow goal, Vance dropped the

matter and went no further with his “speech.” 

Admittedly, the incident which had commenced with one

professor, one administrator, one student, one course, and one exam

could have been the genesis of a large, public outcry fomented and

orchestrated by Vance —— not as a principled professor and aspirant

to department head concerned with his working conditions and other

operational and administrative matters of the university, but as a

dedicated educator and member of the community wishing to

communicate beyond the four corners of the campus his concerns

about the general (mis)handling of academic matters greater than

mere employment issue and concerning instead matters of general,

community concern. But the employment incident never escalated to

a matter of public concern; it ended when Bartley responded to

Vance’s ultimatum by removing the student from the graduation

exercises, pretermitting Vance’s speech from ever rising to the

level of public comment, much less public concern. As such, it

would be of no moment that, if given the judicial opportunity,

Vance might have been able to discover and produce sufficient

evidence to convince judge or jury that the termination of his

teaching employment at SUNO was in direct retaliation for his

speech. Firing (or refusing to rehire) a non-tenured, probationary
6

assistant professor for unprotected speech —— or, for that matter,

for no reason at all —— is not the kind of incident upon which the

relief sought by Vance in this case can be granted. Rather, it is

the stuff of which Rule 12(b)(6) dismissals are made. 

III

Inasmuch as the speech at issue did not address a matter of

public concern and thus was not protected speech, the ruling of the

district court in dismissing Vance’s action under Rule 12(b)(6) is,

in all respects, 

AFFIRMED.