Floyd Robert Gibson

“ A party is not entitled needlessly to accumulate exorbitant legal fees with the expectation that the losing party will be called upon to pick up the entire tab. This court will exercise vigilance and pare down needless and unconscionably high legal fees. An award of attorney's fees is compensatory, not punitive, and we will not allow a threat of paying the opposing party's unreasonable legal fees to chill the assertion or defense of seemingly meritorious civil rights claims. ”

“ Tangential to the authority over its curriculum, there lies some authority over the conduct of teachers in and out of the classroom that significantly bears on the curriculum or that gives the appearance of endorsement by the university.
[p1075] Last and somewhat countervailing, we consider the strong predilection for academic freedom as an adjunct of the free speech rights of the First Amendment. There are abundant cases which acclaim academic freedom. ”

“ Many of the defendants are seeking to avoid personal liability for allegedly infringing upon Planned Parenthood's constitutional rights. At trial, defendants will argue that the adoption of the ordinance was neither arbitrary nor discriminatory. They will seek to prove that the ordinance is consistent with the City's developing comprehensive zoning plan and existing principles of land use regulation.
The applicants, however, are concerned only with their own property values; they are exposed to no risk of personal liability and are defending no charges of discrimination or bad faith. ”

“ Federal judges should not be ersatz deans or educators. In this regard, we trust that the University will serve its own interests as well as those of its professors in pursuit of academic freedom. University officials are undoubtedly aware that quality faculty members will be hard to attract and retain if they are to be shackled in much of what they do. ”

“ Paul City Council has enacted an ordinance imposing a moratorium on the construction of abortion clinics pending a study to determine whether all abortion clinics should be subjected to special zoning requirements. The applicants for intervention are vigorously defending this ordinance, arguing that such a measure is necessary to preserve their property values. [9] "Interests in property are the most elementary type of right that Rule 24 (a) is designed to protect." ”

“ II. DISCUSSION A. Open Forum First amendment doctrines are manifold, and their diverse facts and analyses may reveal but one consistent truth with respect to the amendment -- each case is decided on its own merits. Nevertheless, a [p1071] correct legal analysis must predicate proper explication of the constitutionally pivotal facts. This is not a forum case. We disagree with the district court's conclusion that a university classroom is an open forum during instructional time. ”

“ The municipal defendants had enough to do to defend themselves against the charges leveled against them by the plaintiffs. They do not have the same interest in protecting the values of the homeowners' properties as do the homeowners themselves.
In the present case, the City Council is divided on the issue of whether the moratorium ordinance is proper or advisable. The ordinance was passed by a 5 to 2 vote; thus, a switch of two votes could completely change the attitude of the City Council and the municipality in regard to the issues presented in this litigation. ”

“ Bishop employ blind-grading and so assure students.
We do not reach the question of establishment of religion by Dr. Bishop. [9] While the University acted on its conclusions in that regard, we hold that its memo was reasonable and within its powers to control the content of curriculum in the classroom, regardless of the Establishment Clause. The University necessarily has dominion over what is taught by its professors and may so manage them. We finally hold that the University's memo does not create an establishment of religion ”

“ The protection of the interests of the individual property owners rests primarily in the hands of a few individual council members, most of whom are threatened with personal liability for their discrete actions in voting favorably on the challenged ordinance. The record shows that the defendants have presented little evidence to show how the operation of an abortion clinic would affect applicants' important property interests. ”

“ Numerous undisputed affidavits filed indicate University policy does not prohibit faculty members from engaging in non-religious classroom speech involving personal views on other subjects. Such discussions are the norm used to establish rapport between faculty and students. [p1070] There is no University policy attempting to control the statements of faculty members as long as they do their job. Nor is there a University policy prohibiting faculty members from organizing after-class meetings if discussions are not from a religious perspective. ”

“ A portion of this income would be used to discharge the debt incurred by Planned Parenthood in the purchase of the Ford Parkway facility.
Before Planned Parenthood could implement its decision to transfer its operations, the St. Paul City Council enacted the moratorium ordinance which forestalled the creation of the abortion clinic and deprived Planned Parenthood of the abortion business and its corresponding income. The adverse effect on Planned Parenthood's business, coupled with the incalculable loss [p867] of revenue, provides a basis for finding irreparable injury. ”

“ Bishop professes, much less seek camaraderie by trying to discovery "something in [Dr. Bishop's] life that is inconsistent with Christianity." Bishop Affidavit at 2. The opposite effect was apparently achieved. There is no suggestion that any other professor has produced student complaints or struck constitutional chords. Because the University may heretofore not have restricted the classroom speech of any other professor does not make out a case of overbreadth, vagueness, or infringement as to Dr. Bishop. ”

“ In order to prevent what they view as an incipient erosion of their property values, the applicants must participate in this litigation, and be given the opportunity to present their views to the court in their endeavor to uphold the ordinance as a legitimate and constitutional exercise of municipal power. See Atlantis Development Corp. v. United States, 379 F.2d 818, 828-29 (5th Cir. 1967) .
Finally, in order to intervene under Rule 24 (a) (2) , the applicants must carry the "minimal" burden of showing that their interests are not adequately protected by the existing parties. ”

“ The professed purpose of the association is to preserve property values and insure that abortion facilities do not affect the health, welfare and safety of citizens. The application for intervention was joined by two couples, Donald and Mary Ann Lennon and Norman and Kathleen Vernig, who own property in the vicinity of the proposed Ford Parkway abortion facility. The Lennons and Vernigs wish to intervene to assure that their property values are not adversely affected by the creation of an abortion clinic in their neighborhood. ”

“ The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. ”

“ The applicants were also denied permissive intervention under Fed. R. Civ. P. 24 (b) . In regard to the request for a preliminary injunction, the trial judge stated that Planned Parenthood demonstrated a likelihood that it would prevail on the merits of its claims against defendants. The court found that Planned Parenthood would in all probability establish that the ordinance impinged upon the constitutional rights of women to obtain first trimester abortions and was unsupported by compelling governmental interests. ”

“ I think that people are important and eternal, paper is neither. I want to invest my time mainly in people. I personally believe God came to earth in the form of Jesus Christ and he has something to tell us about life which is crucial to success and happiness. Now this is simply my personal belief, understand, and I try to model my life after Christ, who was concerned with people, and I feel that is the wisest thing I can do. You need to recognize as my students that this is my bias and it colors everything I say and do. ”

“ I Planned Parenthood's Ford Parkway medical clinic, which will offer first trimester abortion services, is situated in an area zoned B-3. This zoning classification permits the construction and operation of medical offices, clinics and laboratories. The record indicates that there are doctor's offices and medical clinics within a few blocks of Planned Parenthood's Ford Parkway medical clinic. No one seriously disputes [p864] that Planned Parenthood's medical clinic is the type of facility that can be maintained in an area zoned B-3. ”

“ The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection." ”

“ Defendants argue that they can require first trimester abortion clinics to maintain adequate hospital backup for emergency purposes. However, a comparable feature did not save the Indiana statute from being invalidated in Sendak v. Arnold, supra. Furthermore, defendants have not imposed a similar requirement on other Ford Parkway medical facilities which, according to the District Court, perform medical procedures entailing a risk of serious complications. Imposing more restrictive requirements on abortion clinics than on other clinics is impermissible. ”

“ One would not expect to find such a policy, and, to the contrary, as one would expect, there are various indications (as in the memo itself) that the University generally endorses academic freedom for its faculty. See Bishop, 732 F. Supp. at 1564. Dr. Bishop has filed numerous affidavits by other instructors at the University describing their extracurricular speech in the classroom as [p1072] efforts to reach out to students. Id. These attempts at professor-student affinity are laudable. But plainly some topics understandably produce more apprehension than comfort in students. ”

“ The preliminary injunction against the enforcement of the ordinance has no present effect since there is nothing against which it can operate. Planned Parenthood has received a building permit to construct its abortion clinic on Ford Parkway and is in the process of renovating its building for that purpose. ”

“ Bishop and the University disagree about a matter of content in the courses he teaches. The University must have the final say in such a dispute. Though Dr. Bishop's sincerity cannot be doubted, his educational judgment can be questioned and redirected by the University [p1077] when he is acting under its auspices as a course instructor, but not when he acts as an independent educator or researcher. The University's conclusions about course content must be allowed to hold sway over an individual professor's judgments. By its memo to Dr. ”

“ Thereunder, the Tenth Circuit found support for restriction of a teacher's activity where "the [teacher's] conduct endorses a particular religion and is an activity 'that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school [.] '" Id. at 1057 (quoting Kuhlmeier, 484 U.S. at 271, 108 S.C.t. at 569) .
The key difference between Roberts and Tinker lies in the actor. ”

“ First, we largely adopt the district court's statement of the facts, quoting freely therefrom and supplementing it as necessary.
Phillip A. Bishop has been employed as assistant professor in the Area of Health, Physical Education, and Recreation [HPER] , in the College of Education at the University of Alabama and Director of its Human Performance Laboratory since 1984. He teaches exercise physiology, his specialty, to graduate and undergraduate students and supervises research problems and theses. ”

“ Society of Sisters, 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S.C.t. 571 (1925) ; Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141, 1145-48 (7th Cir. 1974) , cert. denied, 420 U.S. 997, 43 L. Ed. 2d 680, 95 S.C.t. 1438 (1975) .↑ In Hedberg, a case which is dispositive of the mootness issue, a group of insurers filed an action against one of their terminated insurance agents contending that he had breached a restrictive covenant embodied in the agency contract. The restrictive covenant was effective for one year after the agent's termination. ”