Waverly D. Crenshaw Jr.

“ Tennessee Tech is committed to maintaining a campus as a marketplace of ideas for all Students and Faculty in which the free exchange of ideas is not to be suppressed because the ideas put forth are thought by some or even most members of Tennessee Tech’s community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed. ”

“ What the Court can and must do is determine whether a genuine issue of material fact exists on Plaintiffs’ First Amendment retaliation or Fourteenth Amendment due process claims and whether either side is entitled to judgment as a matter of law. If there remains a jury question on a claim, the question then becomes whether Defendant is entitled to qualified immunity. ”

“ It certainly is not too much for a university to ask that its faculty members act professionally, engage in ethical conduct, be respectful, and maintain the highest level of integrity as required by Policy 600. ”

“ It was reasonable for TTU to believe that, absent disciplinary action, Plaintiffs’ speech would (1) disrupt its ability to fulfill its core mission of teaching students, given a university’s “strong interest in preventing ... speech that rises to the level of harassment,” Bonnell, 241 F.3d at 824; (2) undercut its ability to enforce internal policies relating to employee conduct and free speech; and (3) diminish its obligation to protect all students’ freedom of speech and a free marketplace of ideas. ”

“ Provost Bruce also believed that, in the university setting, “every employee is entitled to their own opinions and thoughts” but “if those viewpoints start to then impinge on the rights of other [students] , they start mistreating others because of those viewpoints, they start taking actions that are based on those viewpoints that are inappropriate actions, then it becomes a concern” for the university. ”

“ Bruce first argues that Plaintiffs spoke as employees of TTU when distributing the flyers. If so, this would exonerate the university from liability because “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U.S. 410, 442 (2006) . Because the government “has a broad right to control” its own speech, the “employer [] may discipline the employee [] for saying something unacceptable because this speech is effectively the government [.] ”

“ Employees are expected to conduct themselves fairly, honestly, in good faith, and in accordance with the highest ethical and professional standards and to comply with applicable laws, regulations, contractual obligations, and Tennessee Tech policies.
2. Employees are expected to be committed to creating an environment that promotes academic freedom, diversity, fair treatment, and respect for all faculty, staff, students and the general public. *** 4. Employees are expected to maintain the highest levels of integrity and objectivity as they perform their duties. ”

“ Sneaking around and dropping-off anonymous flyers attacking a fellow professor falls short of such conduct, or so the university could reasonably conclude. Likewise, namelessly identifying a group as promoting hate without substantiating the allegation cuts against the promotion of the “free exchange of ideas” contemplated by Policy 007.
It is true, as Plaintiffs point out, that TTU has shown little in the way of actual harm. To the contrary, Dr. Donadio and Ms. Sciolis were so unfazed that they went on Fox television. ”

“ So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of a word, especially when there is no ready substitute. ”

“ For purposes of a First Amendment retaliation claim, therefore, unless the adverse action is “de minimus” or “inconsequential,” the issue of “whether an alleged adverse action is sufficient to deter a person of ordinary firmness is generally a question of fact.” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583–84 (6th Cir. 2012) .
This Court cannot conclude, as a matter of law or fact, that being prohibited from (1) serving as a faculty advisor; (2) participating in studies abroad ”

“ Finally, in Connick, the Court refined the Pickering test by holding that “ [w] hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 146. Effectively, “Connick erected a dichotomy between citizens speaking on matters of public concern and employees speaking on matters only of personal interest [.] ”

“ Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000) (citation omitted) (“Because the analysis of First Amendment retaliation claims under the Pickering–Connick test involve [s] legal determinations that are intensely fact-specific and do not lend themselves to clear, bright-line rules ... a defendant in a First Amendment suit will only rarely be on notice that his actions are unlawful.”) ”

“ Politicians sometimes use the term much more loosely, as referring to anyone (not of the speaker's race) who opposes the speaker's political goals—on the “rationale” that the speaker espouses only what is good for the jurisdiction (or the audience) , and since one’s opponents have no cause to oppose what is beneficial, their opposition must be based on race. ”

“ Sciolis has described the club as a “conservative organization for college students [and] high school students” with a mission “to spread conservative ideas.” (PSOF ¶¶ 17–19) . For their part, Plaintiffs believe that TPUSA is a racist organization and “national hate group” with “ties to white supremacy.” (Id. ¶ 20) . Dr. Andrew Donadio (“Dr. Donadio”) , a County Commissioner and an Assistant Professor of Nursing, serves as TPUSA’s faculty advisor at TTTU. (Id. ¶ 3) . ”

“ Even if the term has been watered down over the years, calling a colleague a racist is hardly collegial, and threatening to place him and the group he advises on a “list” is no better. Moreover, like other institutions of higher learning, TTU has rules that need to be followed in order for the institution to fulfill its educational mandate and mission. ”

“ Id. “While motive for the speech is a relevant factor, ... the pertinent question is not why the employee spoke, but what he said,” meaning that a court must “examine the point of the speech in question [.] ” Myers, 41 F.4th at 760.
The point of the flyer was to call out Dr. Donadio as a racist and to identify TPUSA (rightly or wrongly) as a racist organization. Certainly, identifying and addressing racism on college campuses is a matter of public concern. See Connick, 461 U.S. at 148 at n.8 (noting that the “right to protest racial discrimination” is “inherently of public concern”) ”

“ Pickering, 391 U.S. at 568. “Although such particularized balancing is difficult, [we] must reach the most appropriate possible balance of the competing interests.” Connick, 461 U.S. at 150, 103 S.Ct. 1684. That balance tips in favor of Dr. Bruce and TTU and summary judgment will be granted in her favor on Plaintiffs’ First Amendment retaliation claim. ”

“ Accordingly, Vice President Stinson forwarded the matter to Provost Bruce for discipline.
In determining appropriate discipline, Provost Bruce interviewed Plaintiffs, Dr. Donadio, and Ms. Sciolis. She also reviewed TTU’s policies and consulted with university legal counsel. (Id. ¶¶ 28, 30) . Dr. Bruce came to the conclusion that the purpose of the flyer “was to target one individual, a coworker, and a small group of students to threaten and harass and intimidate them, [and] to incite others to participate in the harassment [.] ”

“ DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (“ [O] nly infrequently will it be ‘clearly established’ that a public employee’s speech on a matter of public concern is constitutionally protected, because the relevant inquiry requires a ‘particularized balancing’ that is subtle, difficult to apply, and not yet well-defined.”)
Second, Plaintiffs argue:
Defendant also cannot establish the second element of her qualified immunity defense, because Plaintiffs’ rights were clearly established at the time she issued the sanctions. ”

“ That may be an unfortunate brand of politics, but it also drains the term of its former, decidedly opprobrious, meaning. ...
Language is subject to leveling forces. When a word acquires a strong meaning it becomes useful in rhetoric. A single word conveys a powerful image. ”

“ Indeed, Dr. Donadio in his deposition testified that he viewed the flyer as a threat, and Ms. Sciolis told Provost Bruce that, because of the flyer and the anxiety it caused, she missed class. (DSOF ¶¶ 34, 35; Doc. No. 56-9, Bruce Dep. at 60; Doc. No. 56-14, Donadio Dep. at 123–125) .
In imposing discipline, Provost Bruce considered the possibility of revoking tenure in accordance with TTU’s Policy 207. She decided against that route after consulting with the Faculty Senate President and Faculty Trustee. ”

“ Cent. Bucks Sch. Dist., 805 F.3d 454, 472 (3d Cir. 2015) , (citation omitted) (observing that “the government’s legitimate and countervailing interest, as an employer, in promoting workplace efficiency and avoiding workplace disruption” may tip the Pickering scale) ; Isibor v. Bd. of Regents of State Univ. & Cmty. Coll. Sys. of Tenn., 891 F.2d 290 (6th Cir. 1989) (stating that “ [c] omments which adversely affect close working relationships or disrupt the maintenance of discipline or cause disharmony among coworkers may tip the balance in a defendant’s favor”) . ”

“ Professor Donadio and Turning Point USA. You are on our list.
Your hate & hypocrisy are not welcome at Tennessee Tech.
No Unity With Racists. Hate Speech Is Not Free Speech.
(Doc. No. 52-4) . The flyer was created by Mr. Smith at home using his own personal software. (PSOF ¶ 33) .
Around 3:30 p.m. on February 5, 2021, Dr. Gruber placed a handful of flyers in the lounge, the auditorium (where Dr. Donadio sometimes taught classes) , the kitchen, and in common areas of Bell Hall. (DSOF ¶ 8) . Frank Sterling, an IT employee at the school found at least some of those flyers and collected them. ”

“ Donadio’s reaction was not unanimous, however. For example, Alex Sloan, an alumnus, voiced the opinion that Dr. Donadio went on a “public smear campaign,” and that the “inflammatory violent propaganda targeting professors [was] wildly inappropriate and should be concerning to all academics [.] ” (Id. ¶ 62) .
After Holt completed his investigation, he determined that “ [t] he preponderance of the evidence supports the conclusion [Plaintiffs] violated Tennessee Tech Policy 600, Code of Conduct.” (Doc. No. 62-14 at 5) . That policy, in pertinent part, reads:
1. ”