Floyd Robert Gibson

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 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. ”

“ 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. ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”