Miller v. Cooper

Citations: 116 F. Supp. 3d 919; 2015 WL 4066829; 2015 U.S. Dist. LEXIS 86293Docket: No. 14-cv-361-jdp

Court: District Court, W.D. Wisconsin; July 2, 2015; Federal District Court

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The court addressed the intervention in the management of the University of Wisconsin—Platteville (UWP) orchestra concerning the dismissal of community musician David Miller. Miller, who had played the string bass in the orchestra for nearly two decades, was banned indefinitely after complaints from female students about inappropriate behavior. Following his dismissal in fall 2012, Miller sought reinstatement through various university officials and ultimately filed an open records request, revealing that his dismissal stemmed from complaints regarding his conduct. He subsequently filed a lawsuit claiming violations of his Fourteenth Amendment rights to due process and equal protection, and his First Amendment right to free speech. 

In evaluating the case, the court noted that although the allegations against Miller were concerning, they did not constitute constitutional deprivations. Consequently, the court granted summary judgment in favor of the defendants. The undisputed facts outlined include that UWP’s orchestra is primarily composed of students who enroll for credit, while community musicians, including Miller, participate by making a nominal donation and undergoing placement auditions. Miller's long-standing involvement in the orchestra included a return after obtaining his PhD and continuing participation as a community musician even after his retirement from UWP in 2009. In August 2012, he confirmed his intention to participate for the 2012-13 school year, making a donation for dues, but his involvement ended that fall semester.

On January 25, 2013, David Cooper, chair of the Department of Performing and Visual Arts, informed Miller that his services in the orchestra were terminated due to the addition of two new student bassists, which surprised Miller as he had previously played alongside multiple string bass players. During the call, Cooper confirmed that Miller had not done anything wrong, and the conversation ended without Miller requesting the return of his donation. Following his dismissal, Miller initiated a letter-writing campaign to UWP Chancellor Dennis Shields and Cooper, asserting that his financial contributions constituted a contract and alleging a breach. After receiving no response, Miller escalated the matter by writing to Governor Walker, claiming illegal actions by UWP and threatening to involve the media if the situation was not rectified.

On March 19, 2013, Shields replied, stating that UWP was not obligated to keep Miller as a volunteer. Undeterred, Miller applied to audit Music 1510 for the fall 2013 semester, which was accepted, and he paid the tuition. However, upon discovering his enrollment, Dickey and Cooper sought intervention from Elizabeth Throop, the Dean, who subsequently rescinded Miller’s enrollment and banned him from participating in the orchestra and any other ensembles. UWP refunded Miller’s tuition.

Miller later engaged an attorney and, through an open records request, learned that complaints about his behavior contributed to his dismissal. Specifically, two female students reported feeling uncomfortable due to Miller’s remarks and actions, including an inappropriate comment related to one student's choice of snack.

A student reported that Miller made inappropriate comments regarding her appearance after she returned from Thanksgiving break, likening her new haircut to being "through a car wash." She also noted Miller's unsettling gaze during rehearsals and social events, describing his behavior as "harassment," "obsession," and "targeted." Medisky communicated these concerns to Dickey, highlighting the student's fear of repercussions for reporting Miller. Other female students corroborated these feelings of discomfort regarding Miller. Earlier in the semester, Shields had stressed to faculty the importance of addressing harassment seriously. Following a meeting with the chancellor, Dickey reminded community musicians, including Miller, to be mindful of their conduct around students. After receiving complaints from female students, Dickey recommended to Cooper that Miller be dismissed from the orchestra, noting that new bass students would join in the upcoming semester, mitigating any negative impact from Miller's absence. On January 25, 2013, Cooper contacted Miller, without mentioning the allegations against him. Miller subsequently filed a lawsuit under 42 U.S.C. § 1983, claiming violations of his First Amendment rights due to retaliation and his Fourteenth Amendment rights relating to due process and equal protection, alleging he was dismissed without an opportunity to respond. The court confirmed its jurisdiction under 28 U.S.C. § 1331, as the claims are based on federal law. Both Miller and the defendants sought summary judgment. The defendants contended they were entitled to summary judgment, arguing that Miller's individual claims were barred by qualified immunity. The court determined that the undisputed facts showed Miller could not prevail on any of his claims, leading to a ruling in favor of the defendants. Summary judgment is appropriate when there is no genuine dispute over material facts, and the opposing party must present specific evidence to challenge this.

Cross-motions for summary judgment do not obligate the court to favor one party over another. The court evaluates which party bears the burden of proof on an issue and requires that party to demonstrably establish a genuine issue of material fact. In this case, Miller bears the burden at trial for his three substantive claims, including the necessity to show that the constitutional right he claims was clearly established at the time of the alleged violation regarding qualified immunity. Although it is typical to address qualified immunity before the merits of a case, the court will not do so here because the merits clearly favor the defendants, eliminating any additional burden from considering qualified immunity.

Miller's due process claim asserts that he was dismissed from UWP’s orchestra and banned from future participation without notice or an opportunity to be heard. To prove a procedural due process violation related to a property right, a plaintiff must show: (1) a cognizable property interest, (2) deprivation of that interest, and (3) denial of due process. The court notes that the second and third elements are often merged as the deprivation is usually evident. The pivotal issue is whether Miller had a constitutionally protected interest in participating in the orchestra. He cites a state statute allowing individuals aged 60 or older to audit University of Wisconsin courses and a contract with UWP for his participation. However, neither source establishes a constitutionally protected interest, leading the court to grant summary judgment in favor of the defendants regarding Miller’s due process claim.

Miller's argument that the state statute confers a protected interest faces significant challenges, as the Seventh Circuit has previously determined that individuals lack a standalone property interest in education at state universities. To demonstrate a constitutionally protected interest, Miller must prove a legally recognized entitlement to his status as a student at UWP.

Miller asserts that Wisconsin voluntarily provides the right for its citizens to attend public universities, as established by Wis. Stat. § 36.27, which allows individuals aged 60 and older to audit courses without a fee, contingent on space availability and instructor approval. Although Miller, over 60, claims UWP cannot deny his enrollment without due process, he misapplies the precedent set in Goss v. Lopez. In Goss, Ohio law guaranteed a right to education with procedural protections that were violated when students were suspended without a hearing. Conversely, Wisconsin’s statute does not guarantee an absolute right to audit courses; it explicitly requires instructor approval, which Miller did not receive for the Music 1510 course. Unlike the unconditional educational interest in Goss, Wisconsin’s law places discretion in the hands of instructors. There is no state law limiting this discretion or requiring due process before denying auditing permission. The court concludes that Miller lacks a statutorily protected interest that would invoke federal due process rights regarding his potential auditor status.

Miller asserts a constitutionally protected interest in his continued participation in the orchestra based on a contractual right. Generally, contracts with state agencies can create a protected property interest, as established in prior case law. However, Miller must provide evidence of a specific contractual right that guarantees his ongoing participation. The court emphasizes that a federal constitutional right to state-mandated process does not exist, and merely demonstrating that students have a right to a fair process is insufficient for his claim.

Miller presents three potential contractual bases for his claim: (1) a general offer from UWP for public participation in the orchestra contingent upon passing an audition and paying a fee; (2) a statutory promise for free class access to residents over 60 not seeking a degree; and (3) a verbal offer from Cooper for the 2012-2013 school year. However, the court states that to establish a protected interest, Miller must show a specific contractual promise, such as the right to continued education or protection from dismissal without cause.

Miller acknowledges he never signed a written contract and tries to draw parallels with previous cases where implied contracts were recognized. He argues that Wisconsin's Administrative Code for nonacademic discipline was implicitly part of his relationship with UWP. Nevertheless, he fails to identify any explicit promise from UWP regarding these provisions or that he would be treated as a "student" for disciplinary purposes. The syllabi for the courses he was involved in do not mention any dismissal procedures or imply that community musicians would receive the same protections as enrolled students. Additionally, while it is agreed that special students must adhere to the same conduct code as regular students, this point is moot since Miller was not categorized as a special student at the time of his dismissal but rather as a volunteer community musician.

Miller has failed to provide evidence of any explicit or implicit promise from the defendants regarding his treatment as a student during the 2012-13 school year or assurance against dismissal from the orchestra without just cause. He argues that all contracts imply a right to be free from arbitrary dismissal; however, Wisconsin law generally supports at-will employment, allowing for such terminations. The cases Miller cites do not establish a right against arbitrary dismissals. While Wisconsin contracts do imply a duty of good faith and fair dealing, this does not equate to a constitutionally protected property interest. Miller's assertion that he was denied due process as a student before his dismissal from the orchestra is not valid, as the Seventh Circuit has ruled against such due process claims. Consequently, Miller's due process claim does not hold, and the defendants are entitled to summary judgment.

Regarding Miller's retaliation claim based on First Amendment rights, he must prove that: (1) he engaged in protected activity; (2) he suffered a significant deprivation; and (3) his speech was a motivating factor in the defendants' actions. However, Miller cannot advance his claim because his speech is not constitutionally protected. He references Tinker v. Des Moines, which allows for some student speech protections but also permits schools to limit speech that disrupts educational activities.

Miller's involvement in the university orchestra does not fit the Tinker analytical framework, as he was a volunteer, not a student, and did not receive academic credit or pursue a degree at UWP at the time. The syllabus for Music 1510 explicitly differentiated between enrolled students and community musicians. A meeting held by Dickey with community musicians confirmed that they were not considered students. Despite this, defendants anticipated a significant disruption in the orchestra due to complaints from female students about Miller’s conduct, which could lead them to quit. Tinker acknowledges that student speech infringing on others' rights is not protected under the First Amendment. 

The facts indicate that Miller's role resembled that of an employee more than a student, as he voluntarily provided a crucial service to the orchestra. Thus, First Amendment retaliation claims applicable to public employees are more relevant to his situation. UWP, like any public employer, has the right to manage its community musicians, and Miller must accept certain limitations on his speech as part of his participation. The court draws parallels to cases involving non-student adult volunteers, suggesting that public employment principles apply to Miller’s First Amendment claim. Within this context, casual or idle speech, such as flirtatious conversation, is not protected. The Seventh Circuit emphasizes that the free-speech clause is intended to safeguard significant public discourse, not informal exchanges limited to small groups.

Miller's interaction regarding the apple incident was characterized as light-hearted and non-significant, lacking any substantive expression of ideas or opinions. Despite his claims, no protected speech occurred during this brief exchange, which led to his dismissal from the UWP orchestra. The court concluded that Miller's comments did not warrant constitutional protection, justifying the defendants' summary judgment against his First Amendment claim.

Regarding Miller's equal protection claim, he failed to demonstrate that he was treated differently without a rational basis. To succeed, he needed to show intentional differential treatment compared to similarly situated individuals, devoid of rational justification. The court noted that Miller bore a heavy burden to disprove any conceivable rational basis for the defendants' actions. Evidence indicated that multiple complaints were made against Miller by female students, with one student expressing distress and concern over harassment. The faculty's awareness of potential issues with Miller's behavior reinforced the legitimacy of the defendants' actions. Although Miller argued that the timing of his dismissal suggested animosity, the court clarified that a rational basis need not be the actual motivation, only that it could be logically justified. Thus, the evidence supported the defendants' decision to dismiss and indefinitely ban Miller from the orchestra.

Defendants are entitled to summary judgment on David Miller's equal protection claim, as the court found no rational basis lacking for his dismissal from the orchestra, despite the defendants not conducting an exhaustive investigation into the allegations against him. While it might have been reasonable for defendants to inform Miller of the unacceptable nature of his conduct and allow him to respond, a reasonable jury could not conclude that the dismissal was irrational. Consequently, Miller's motion for summary judgment is denied, and the defendants’ motion is granted. The court orders the entry of judgment in favor of the defendants, thereby closing the case. Miller disputes the allegations of misconduct, asserting innocent explanations, and challenges the students' complaints as hearsay; however, the court clarifies that these complaints serve to illustrate the defendants' state of mind rather than to prove misconduct. Additionally, Miller's mention of a potential contractual argument based on his long-term participation in the orchestra is deemed insufficiently developed, resulting in waiver of that argument. The court notes that while much evidence would be inadmissible to establish misconduct, it is relevant to understanding the rationale behind Dickey's decision to dismiss Miller.