|March 11, 2014|
Previously published on March 6, 2014
Finding a professor’s reported comments to students regarding his religious beliefs were not protected under the First Amendment of the U.S. Constitution, a federal court in Mississippi granted summary judgment in favor of a state university on the professor’s retaliation claim. Payne v. University of Southern Mississippi, No. 1:12-CV-41-KS-MTP (S.D. Miss. Feb. 21, 2014). The court also granted summary judgment, in part, in favor of the university on the professor’s claims for alleged violations of his procedural and substantive due process rights.
Thomas Payne was a tenured associate professor in the criminal justice department of the University of Southern Mississippi (“USM”). In 2009, a graduate student complained that Payne often made her uncomfortable with his statements regarding religion, including statements that non-Christians “are going to hell.” Thereafter, Payne attended a meeting at which his Department Chair and the Associate Dean of Science and Technology counseled him regarding potentially offensive religious statements in the workplace and he admitted to discussing his religious beliefs with his students both in the classroom and in one-on-one discussions. Payne subsequently filed a grievance with the university asserting the meeting had a chilling effect on his First Amendment right to express his “Christian walk in the workplace.”
In August 2010, Payne received a notice from USM stating that his contract would not be renewed at the conclusion of the 2010-2011 academic year because his program was being discontinued. However, in March 2011, the notice was rescinded, and Payne continued to work at USM until his resignation in December 2012.
Following his resignation, Payne sued USM alleging, among other things, he was subjected to retaliation for asserting his First Amendment rights and deprived of procedural and substantive due process by USM’s failing to promote him to full professor in 2006, 2008, and 2012, giving him adverse performance reviews, denying him permission to engage in outside employment, and delaying a performance review.
USM moved for summary judgment on Payne’s claims.
First Amendment Retaliation
To establish a claim for retaliation based on the exercise of First Amendment rights, the employee must prove that: (1) he suffered an adverse employment decision; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental employer’s interest in promoting efficiency; and (4) the protected speech motivated the employer’s conduct. However, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
To establish a procedural due process claim, the employee must “have been denied life, liberty, or property protected by the Fourteenth Amendment.”
“Substantive due process bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.” It “requires only that public officials exercise professional judgment, in a non-arbitrary and non-capricious manner, when depriving an individual of a protected property interest.” Like procedural due process, substantive due process requires a plaintiff to show that he was deprived of a legitimate entitlement — a life, liberty, or property interest protected by the Fourteenth Amendment. However, a “benefit is not a protected entitlement if government officials may grant or deny it in their discretion.”
First Amendment Retaliation
Payne argued the First Amendment permitted him to engage in any religious speech without reprisal and, therefore, USM retaliated against him by counseling him regarding his statements. The court disagreed with Payne’s sweeping view. His speech was made in connection with his duties as a professor, and therefore, the court explained, it was not protected from employer discipline. Accordingly, the court granted summary judgment to USM on Payne’s First Amendment retaliation claim.
Payne argued USM deprived him of procedural and substantive due process by sending him the notice of non-renewal. The court disagreed because USM rescinded the notice and did not discontinue his program. Therefore, the notice did not deprive him of any life, liberty, or property interest, it ruled.
Next, Payne maintained USM deprived him of procedural and substantive due process by denying him permission to engage in outside employment. The court rejected Payne’s contention. Under USM’s by-laws, professors could engage in outside employment only with the USM President’s permission after the President determined that outside employment would not interfere with the professor’s institutional duties. Because the President had discretion to grant or deny the request, Payne had no protectable interest in engaging in outside employment.
Payne also argued USM deprived him of procedural and substantive due process by denying him a promotion and denying him a favorable performance review. The court disagreed with both assertions. It found Payne had no property right in a promotion because promotions were not guaranteed and were subject to a lengthy application and review process. Likewise, the court found Payne had no protectable interest in a favorable review. Indeed, the court noted “the very idea of a performance review implies that the persons performing the review have discretion to provide the feedback they believe is merited.”
Finally, Payne argued USM denied him procedural due process by delaying his 2009 performance review until January 2012. On this point, the court agreed with Payne. The faculty handbook required all performance reviews to be completed between January and March for the preceding year. USM failed to provide the review as required and did not give Payne any notice or opportunity to be heard regarding the delay.
Accordingly, the court granted summary judgment on all of Payne’s due process claims, other than that arising out of the delay of his 2009 review, which it found to be a violation of Payne’s procedural due process rights (i.e., the right to be heard).
This case reaffirms the ability of public educational institutions to regulate, through discipline, even religious speech in the context of instruction or duties to the institution. Educational institutions should consider offering guidance to instructors as to the boundaries of free speech and when, in the view of the institution, expression becomes a disciplinary offense. The case reaffirms the discretionary nature of promotion and review decisions, as well. Yet, it also serves as a reminder that to avoid procedural due process claims, the institution should be careful to follow its own policies, particularly when employee hearing or rebuttal rights are involved.