Jeffrey M. Blum v. John H. Schlegel, in His Personal & Official Capacity as Associate Dean of the State University of New York at Buffalo School of Law, David B. Filvaroff, in His Personal & Official Capacity as Dean of the State University of New York at Buffalo School of Law, William R. Greiner, in His Personal & Official Capacity as Provost & President of the State University of New York at Buffalo, Kenneth J. Levy, in His Personal & Official Capacity as Acting Provost of the State University of New York at Buffalo, Alan S. Carrel, in His Personal & Official Capacity as Associate Dean of the State University of New York at Buffalo School of Law, Elizabeth B. Mensch, Professor of Law, Alan D. Freeman, Professor of Law, Charles P. Ewing, Professor of Law, D. Bruce Johnstone, in His Official Capacity as Chancellor of the State University of New York, John Doe, Officer of the State University of New York at Buffalo, Jane Doe, Officer of the State University of New York at Buffalo, Dianne Avery, Movant, Daniel
Docket: 811
Court: Court of Appeals for the Second Circuit; March 3, 1994; Federal Appellate Court
Jeffrey M. Blum appealed the denial of a preliminary injunction by the U.S. District Court for the Western District of New York, concerning his tenure and promotion review at the State University of New York at Buffalo School of Law. Blum claimed violations of his First, Fifth, and Fourteenth Amendment rights related to this process. The appellate court affirmed the lower court's decision, finding that Blum did not demonstrate a likelihood of success on the merits of his case or present sufficiently serious questions for litigation, with the balance of hardships not favoring him.
Blum, who joined the faculty in September 1985 on a six-year tenure track, was informed by then-Dean David Filvaroff in September 1989 that his prospects for tenure were poor. This assessment was reiterated in an October 1990 meeting. Following this, Blum requested that his tenure review be scheduled for March 15, 1991. In response, Filvaroff acknowledged the request but suggested that Blum consider deferring his tenure review to the seventh year, advising him to reduce his teaching load and enhance his scholarship during that additional year.
Blum expressed openness to Filvaroff's recommendations regarding his promotion timeline in a letter dated November 13, 1990, suggesting that deferring his promotion until the following fall could be beneficial. However, Blum noted he could not commit to this deferral until he received clarification on the specifics of the proposed half-load teaching option and the necessary appointment papers for the 1991-1992 academic year. He emphasized his reliance on the half-load option as crucial for his tenure prospects.
Filvaroff acknowledged Blum's concerns in his response dated November 15, 1990, agreeing that deferring tenure consideration was a prudent decision and confirming arrangements for Blum's appointment for the upcoming academic year. Blum subsequently sent a supplementary letter on November 15, clarifying that his request for proper appointment papers was for an updated version of his last appointment letter, reflecting necessary revisions.
In a follow-up response on November 16, Filvaroff addressed Blum's request for written confirmation regarding his status, indicating he was working on both the specifics of Blum's spring course load and the appointment confirmation. He referred Blum to a previous letter from September 13, 1989, which outlined the extension of Blum's contract if tenure was not granted that academic year. Blum replied, affirming his understanding of their agreement on the contract extension and the expected appointment documents, stressing the urgency of being able to rely on these arrangements.
On December 21, 1990, Filvaroff informed Blum that his faculty appointment would end on August 31, 1991, and he recommended a one-year reappointment as a Visiting Associate Professor starting September 1, 1991. This was intended to provide Blum additional time for scholarship and to prepare for promotion and tenure consideration in the fall. Filvaroff referenced SUNY rules indicating that after three years as an Associate Professor, a change in title was necessary for reappointment. He expressed concern that Blum might claim a continuing appointment if reappointed for a fourth year as an Associate Professor.
Blum, in a January 5, 1991 letter, acknowledged Filvaroff's plan to separate tenure from promotion, indicating he felt secure from potential dismissal. Filvaroff responded on February 1, 1991, clarifying that he had never assured Blum of tenure without faculty review, reiterating that Blum's contract would only extend for one year. Blum did not formally request his tenure review during his sixth year but instead mentioned a right to be reappointed as an Associate Professor under promissory estoppel.
The Law School prepared for Blum's tenure review for fall 1991. In a September 24, 1991 letter, Professor Joyce informed Blum that the Promotion and Tenure Subcommittee was ready to proceed with his candidacy but sought Blum's explicit consent to move forward with the evaluation process.
On April 2, 1992, Blum declared in a document titled 'Personal Resolution' that he did not want a Promotion and Tenure Evaluation. His contract expired on August 31, 1992. Blum initiated legal action on October 1, 1991, against various university officials under 42 U.S.C. § 1983, claiming violations of his First, Fifth, and Fourteenth Amendment rights, along with several state law claims. The district court allowed him to amend his complaint after granting the defendants' motion to dismiss on January 24, 1992. Blum filed this amended complaint on February 20, 1992. His motion for a preliminary injunction, which is the subject of this appeal, was filed on October 7, 1992, but was recommended for denial by Magistrate Judge Heckman on December 14, 1992. The district court partially accepted this recommendation and denied the motion on July 1, 1993. Blum filed a notice of appeal on July 8, 1993.
To obtain a preliminary injunction, a plaintiff must show irreparable harm and either a likelihood of success on the merits or serious questions related to the merits that favor the plaintiff. The denial of such a motion is typically reviewed for abuse of discretion, focusing on whether there was irreparable harm or a likelihood of success. The court found Blum did not demonstrate either element, particularly regarding his First Amendment claims. To prove these claims, Blum needed to show that his speech was protected, that he experienced an adverse employment action, and that a causal link existed between the speech and the adverse action. If successful, the university could then argue it would have taken the same action regardless of the speech. The court concluded that Blum failed to establish the necessary factors for his claims.
The district court concluded that Blum did not meet the requirements under Mount Healthy, specifically failing to show an adverse employment action or a causal link between his protected speech and any alleged negative action. However, the appellate review determined that the district court incorrectly assessed Blum's engagement in protected speech. The complexities of First Amendment claims in employment contexts, particularly between teachers and State universities, are highlighted, referencing Supreme Court decisions which affirm that public employees retain their First Amendment rights regarding public interest commentary, despite their government employment. The court emphasized the need to balance the interests of the employee as a citizen with the State's interest in maintaining efficient public services. The nature of the employee's speech and their role within public services must be considered to determine permissible speech regulation. Law schools, which fulfill roles beyond merely training lawyers by fostering scholarly research and public discourse, necessitate a free and open environment for debate. Excessive regulation of faculty speech could hinder a law school’s effectiveness. Therefore, courts should protect First Amendment rights while also considering the unique functions of law schools in evaluating the balance between free speech and the State's interests.
Blum's speech, primarily advocating for marijuana legalization and critiquing national drug policy, is considered protected under the First Amendment, as it addresses matters of public concern. The district court initially ruled that Blum failed to provide evidence linking his speech to public interest, suggesting instead that his motivation was personal due to his interest in legalization. However, the reviewing court disagreed, emphasizing that criticism of government drug policies is inherently a public concern, given the societal impact of substance abuse and drug trafficking. The court noted that the effectiveness of a state university's law school depends on engaging in controversial discussions about public issues. The court also rejected the district court's inference that Blum's personal interest equated to a private motive, asserting that personal interests in public matters are common and do not negate the public nature of the speech. Without evidence indicating Blum's speech was solely motivated by personal interests linked to his employment, the court concluded that the district court's decision to deem his speech unprotected was incorrect.
Blum claimed he experienced an adverse employment action due to being denied tenure review, while defendants argued he waived his right to such a review. The district court found that Blum initially consented to postponing the review and later withdrew from it entirely, supported by extensive correspondence with Law School Dean Filvaroff regarding the deferral until Fall 1991. Dean Filvaroff's letters confirmed Blum's faculty status for the subsequent academic year, and Blum acknowledged this understanding in his responses. Although Blum initially expected simultaneous tenure and promotion reviews, he did not provide direct evidence of an explicit request for a Spring 1991 review after learning of his appointment as "Visiting Associate Professor." Consequently, the district court concluded that Blum waived his right to the sixth-year tenure review, supporting its finding that no adverse employment action occurred.
Furthermore, even if an adverse action was assumed, the district court determined that Blum did not establish a causal connection between his speech and the handling of his tenure review. Blum argued that certain statements indicated his tenure issues were linked to his protected speech, but only one statement was from a named defendant, Dean Filvaroff, who suggested that President Sample wanted to avoid any disruption, implying that Blum's comments led to negative evaluations in his community service. However, Blum's evidence was insufficient to establish that his speech was a substantial factor in the tenure process.
Filvaroff's deposition reveals that he does not perceive any negative community service associated with controversial faculty positions, specifically regarding drug issues. He acknowledges the controversy but states he cannot speculate on how it is viewed by other faculty or the Central University Administration, indicating a lack of communication on the matter. He mentions that former President Steve Sample preferred a quieter university environment but emphasizes that vigorous debate is a vital part of academic life. This testimony suggests that Blum's speech was not a significant factor in his tenure challenges.
Blum also cites Dean Albert's statements that he was deemed unsuitable for tenure not due to his ideas but because of his outspokenness, which further distinguishes the issue from the content of Blum's views. Albert clarifies that the manner of presentation, rather than the views themselves, was problematic.
Additionally, Blum references a derogatory comment made by President Greiner's son, characterizing him as a "horrible Canadian professor," but fails to provide evidence from the record to substantiate this claim. Even if the statement were supported, it would not demonstrate a causal link between Blum's speech and any adverse employment decisions. Ultimately, Blum has not provided sufficient evidence to establish that the deferral of his tenure review was connected to his protected speech.
Blum failed to provide direct evidence linking his speech to any adverse employment action. Evidence indicated that Blum requested the deferral of his tenure and promotion review, which did not occur due to his own request. The district court rightly concluded that Blum did not demonstrate a causal connection between his protected speech and the alleged adverse action. Regarding Blum's Fourteenth Amendment claims, he asserted a property interest in timely and non-arbitrary promotion and tenure review, but the district court found that the expectation of tenure is not a vested right under the Due Process Clause. Tenure, once granted, is protected; however, Blum’s appointment did not guarantee such an expectation, as it was limited to two terms totaling six years. Blum argued that he was denied timely review based on established procedures in the University Handbook, raising the question of whether a university employee can have a property interest in procedural rights despite lacking a property interest in tenure itself. This issue was touched upon in Dube v. State Univ. of New York, where the court acknowledged the entitlement to be considered for tenure per established procedures but did not definitively hold that a violation of such procedures constituted a constitutional property interest. The district court found Blum waived his right to sixth-year tenure consideration and declined to pursue tenure in the seventh year. Lastly, Blum claimed Associate Dean Schlegel’s comments about him constituted a deprivation of his liberty interest in his professional reputation, arguing that such characterizations could be construed as defamatory and should not be made arbitrarily by a state official.
Blum's objections to characterizations made by Schlegel were based on hypothetical questions, with Schlegel's attorney frequently objecting to Blum's inquiries, which were often deemed objectionable. There is no evidence that Schlegel communicated these characterizations to anyone at the Law School. Even if such evidence existed, the statements—describing Blum as "a bit of a flake," "off the wall," or "stark raving mad"—would not reasonably be interpreted as charges of mental illness, as they stem from an associate dean lacking clinical psychology expertise. These remarks are more accurately viewed as ad hominem arguments rather than serious allegations of mental illness. The court concluded that Blum waived any constitutionally protected property interest related to tenure and promotion review and failed to establish a violation of his liberty interest concerning professional reputation. Consequently, the district court found that Blum did not demonstrate a likelihood of success on his claims, which pertained to the First, Fifth, and Fourteenth Amendments, and therefore denied his request for preliminary injunctive relief. Additionally, the court determined that Blum did not raise sufficiently serious questions for litigation, leading to a favorable balance of hardships for the defendants. The court's rulings on the probability of success and the balance of hardships were upheld, resulting in the affirmation of the district court's denial of Blum's motion for preliminary injunction.
Key aspects of the procedural history in the case are highlighted, emphasizing that no opinion is expressed on the effectiveness of politically charged hypotheticals, which can be confusing. The court disagrees with Blum's assertion that certain speech is unprotected under the First Amendment, citing the protection typically given to political satire, as established in Hustler Magazine, Inc. v. Falwell. Furthermore, Blum does not challenge the District Court's finding that his interest in letters regarding his promotion and tenure does not qualify as protected speech. Blum's appeal suggests that his waiver of a sixth-year tenure review was contingent upon receiving a specific contract extension, but the court agrees with the District Court that there is no evidence supporting this claim.
Additionally, Blum is noted to have misquoted an article, misattributing phrases and incorrectly identifying the speaker. In terms of witness testimony, a representative exchange reveals Blum's inquiries about his reputation among colleagues, with responses indicating he was characterized as "off the wall" and "stark raving mad." Lastly, Blum attempts to connect these characterizations to his alleged literalism, which was acknowledged by a witness as a factor in their perception of him.
