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Felkner v. Rhode Island College

Supreme Court of Rhode Island

March 18, 2019

William Felkner
v.
Rhode Island College et al.

          Providence County Superior Court PC 07-6702 Associate Justice Netti C. Vogel

          For Plaintiff: Thomas W. Lyons III, Esq., Rhiannon S. Huffman, Esq.

          For Defendants: Jeffrey S. Michaelson, Esq. Timothy J. Dodd, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          SUTTELL CHIEF JUSTICE

         The principles of academic freedom often find uneasy passage in the halls of academia.[1] In this appeal, the plaintiff, William Felkner, describes himself as a "conservative libertarian." He chose, nevertheless, to matriculate in the Master of Social Work program at Rhode Island College's School of Social Work, which, he claims, has a distinct sociopolitical ideology. A clash of values was inevitable. In 2007, Felkner filed an action against Rhode Island College and various college officials (collectively defendants), [2]alleging they had violated his constitutional rights to freedom of expression and equal protection. In 2013, Felkner amended his complaint to include claims for conspiracy to violate his civil rights and a violation of his procedural due process rights. The matter now before us concerns his appeal from a grant of summary judgment in favor of the defendants on all counts and from the dismissal of his claim for punitive damages. For the reasons set forth in this opinion, we vacate the judgment in part and affirm in part.[3]

         I

         Facts and Procedural History

         Our summary of pertinent facts is garnered from Felkner's verified complaint and first amended complaint, [4] as well as from the parties' submissions on defendants' renewed motion for summary judgment. For purposes of our summary judgment review, we present the admissible evidence in the manner most propitious to plaintiff, as the nonmoving party. Lehigh Cement Co. v. Quinn, 173 A.3d 1272, 1275 (R.I. 2017).

         In 2004, shortly after Felkner began his studies at Rhode Island College (RIC), he learned that the School of Social Work (SSW) would be sponsoring a showing of the movie Fahrenheit 9/11.[5] Felkner emailed defendant Professor James Ryczek, his instructor for a foundational course called "Policy and Organizing I," objecting to the showing of the film. Felkner asked if the SSW would consider showing the movie FahrenHYPE 9/11, a conservative rebuttal to Fahrenheit 9/11. According to Felkner, Professor Ryczek responded that the SSW has a mission dedicated to social and economic justice and suggested that "anyone who consistently holds antithetical views to those that are espoused by the profession might ask themselves whether social work is the profession for them." Felkner also wrote an email to Professor Daniel Weisman, who had sponsored the presentation of Fahrenheit 9/11. In response to Felkner's email, Professor Weisman expressed that the SSW was "not committed to balanced presentations" and that, "[f]or the most part, Republican ideology is oppositional to the [social work] profession's fundamental values." Ultimately, however, Professor Weisman presented FahrenHYPE 9/11 to the same classes that saw Fahrenheit 9/11.

         As part of "Policy and Organizing I," students were assigned a group project in which they were to debate a social welfare issue and write a policy paper promoting the group's position. According to Felkner, the students could choose from a list of issues provided by Professor Ryczek, all of which involved, in Felkner's words, "a leftist position on social welfare issues." Professor Ryczek also informed the class that each student would participate in a class debate and then lobby for their selected issue before the Rhode Island General Assembly in the next semester's "Policy and Organizing II" class. Felkner joined a class group advocating for passage of Senate Bill 525 (SB 525), which he described as an amendment to "a temporary cash assistance program for Rhode Islanders having a difficult time making ends meet."

         Thereafter, however, Felkner asked Professor Ryczek for permission to argue against SB 525 in the class debate after he concluded that "SB 525 did not actually help people get off welfare with higher-paying jobs * * *." According to Felkner, Professor Ryczek denied this request, explaining that RIC "is a perspective school and we teach that perspective" and "if you are going to lobby on [SB 525], you're going to lobby in our perspective." Nevertheless, Felkner wrote his policy paper from a perspective opposing the passage of SB 525 and contrary to-in Felkner's words-Professor Ryzcek's "professed support of a comprehensive welfare state." At his deposition, Professor Ryczek testified that he typically gives a group grade for the group work. However, after members of Felkner's group told Professor Ryzcek that Felkner "was not participating in the group as expected[, ]" Professor Ryczek agreed to "disaggregate" Felkner's grade from the group grade. Professor Ryczek further stated that he had never disaggregated a student's grade before, nor had he ever given a grade lower than an "A minus" or "B plus" for the group class debate. Felkner received a failing grade on both his written assignment and classroom debate because he had not followed the directives of the assignment. Professor Ryczek then offered Felkner an opportunity to rewrite his paper. Ultimately, Professor Ryczek gave Felkner a C plus as his final course grade. Felkner appealed the failing grades for the paper and debate to the Academic Standing Committee (ASC) for the SSW.

         On January 20, 2005, the ASC held a hearing on Felkner's appeal. According to Felkner, he was denied the opportunity to question Professor Ryczek at the hearing because Professor Ryczek left the room immediately following his testimony. Because Felkner believed that Professor Ryczek had given inaccurate testimony at the ASC hearing regarding conversations between them, Felkner announced that he would henceforth record all of his conversations with RIC professors. The next day, the ASC denied Felkner's appeal of his grades.

         Felkner further appealed the matter to the chair of the Master of Social Work (MSW) program, Dr. Lenore Olsen, and then to the dean of the SSW, defendant Carol Bennett-Speight. In both appeals, the decision of the ASC was upheld. Felkner also contacted the Foundation for Individual Rights in Education (FIRE) about his alleged mistreatment. In a letter to RIC's then-President, defendant John Nazarian, dated January 28, 2005, FIRE noted that, in "[t]he case of Bill Felkner[, ]" RIC should "reconsider and withdraw its unconstitutional policies." On February 15, 2005, Nazarian replied that no RIC student had been punished for failing to espouse a certain political belief.

         At the close of the Fall semester, Professor Ryczek wrote to Dr. Olsen, informing her that he would not teach the "Policy and Organizing II" class the next semester because, as an adjunct faculty member, dealing with Felkner required too much of his time. Consequently, Felkner was transferred to a section of the course taught by full-time Professor Roberta Pearlmutter. The plaintiff's relations with Professor Pearlmutter, however, were no more salubrious than they had been with Professor Ryczek.

         One assignment in "Policy and Organizing II" required students to complete a group project approved by Professor Pearlmutter. Felkner proposed to Professor Pearlmutter that he be allowed to form a group with students from other colleges to lobby RIC for an Academic Bill of Rights. Professor Pearlmutter rejected Felkner's proposal, noting that it did not have a direct impact on the "poor and oppressed" and did not advance "social justice." Professor Pearlmutter also rejected Felkner's request to lobby in favor of the then-governor's welfare-reform proposal for the project.

         Next, Felkner suggested that he be allowed to work on a project lobbying for the defeat of SB 525 in the General Assembly. Professor Pearlmutter told Felkner that she would penalize his grade on the project if he did not work on it with classmates from his "Policy and Organizing II" class. Felkner had difficulty recruiting group members because his fellow students had already formed groups to promote policies that were contrary to his "conscience." Because of the "hostility towards his beliefs[, ]" Felkner worked on his project with a group comprising himself and two individuals from outside of RIC.[6] Some of his conversations with Professor Pearlmutter took place through the exchange of emails. One conversation about Felkner's proposed projects was in person; Felkner audio-recorded the conversation without Professor Pearlmutter's knowledge and later posted a rough transcript of the conversation to a website he had created to expose what he characterized as the "liberal bias" at RIC.

         During one of Professor Pearlmutter's classes, the students were permitted to discuss their concerns about Felkner's postings on his website related to the "Policy and Organizing II" class. According to Professor Pearlmutter, she was approached by several students who were concerned that the confidentiality of class discussions was being compromised by Felkner when he posted about those discussions on his website. She maintained that students in the class asked that Felkner discuss any issues he had with the class during classroom discussions rather than on his website. Felkner, however, asserted that his conservative views were "assail[ed]" and that Professor Pearlmutter allowed other students to "assault" his views without allowing him the opportunity to respond. According to Felkner, "[t]he unmistakable message Defendant Pearlmutter communicated through the discussion was that only liberal/progressive ideas can help the poor and advance the cause of social justice."

         Professor Pearlmutter eventually filed a complaint with the ASC, asserting that Felkner had committed unethical and unprofessional conduct in violation of the National Association of Social Workers (NASW) Code of Ethics. On April 27, 2005, the ASC held a hearing on Professor Pearlmutter's complaint. Thereafter, the ASC issued a written decision, through its chair Dr. Diane Martell, in which it found that Felkner's deceptive conduct in recording his conversation with Professor Pearlmutter violated one of the three sections of the Code of Ethics alleged by Professor Pearlmutter in her complaint. The ASC recommended to the chair of the MSW program that Felkner "declare immediately, in writing, that [he] will henceforth refrain from any deceptive audio or video copying of conversations with social work colleagues and refrain from any audio or video copying without express permission from them." The ASC further recommended that Felkner be dismissed from the MSW program if he was unwilling to execute such a declaration. In a letter to Dean Bennett-Speight, dated May 11, 2005, Felkner stated that he would refrain from making audio or video recordings of his conversations with his SSW colleagues unless he first obtained their consent to record.

         At the end of Felkner's first year in the MSW program, he met with his adviser and chose the Social Work Organizing and Policy (SWOP) concentration for completion of the degree. As a MSW student, Felkner was required to complete a field placement and an integrative project in order to fulfill the MSW program requirements. For Felkner's field placement and integrative project, he secured an internship in then-Governor Donald L. Carcieri's office, working on welfare-reform legislation. Felkner alleged that Professor Ryczek, as director of field placements, rejected Felkner's placement because it would not advance the concentration's objectives of promoting progressive social change. Felkner claimed that Professor Ryczek advised him that the SWOP-concentration objectives required him to advocate for liberal, progressive policies, and that he suggested Felkner's views might make him better suited to another academic discipline, such as political science. The MSW department chair, Dr. Olsen, supported Professor Ryczek's position by indicating that Felkner might consider pursuing other concentrations if he was not able to work on the academic objectives of the SWOP concentration.

         On June 9, 2005, Felkner met with Dean Bennett-Speight about his challenges with Professor Ryczek and Dr. Olsen, claiming they were discriminating against him because of his conservative views. Thereafter, Dean Bennett-Speight assigned Professor S. Scott Mueller, also a defendant in this case, as Felkner's field placement supervisor. Professor Mueller also initially rejected Felkner's proposed field placement and integrative project, but eventually RIC approved the field placement in the Governor's office. According to Felkner, Professor Mueller refused to approve Felkner's proposed integrative project on welfare reform because it was a "toxic" subject. Consequently, Felkner "reluctantly conceded to work on healthcare reform for his [integrative project]." Felkner further asserted that working on healthcare reform put him at a disadvantage relative to other SSW students because he was unable to use his field placement research for his integrative project.

         Felkner proceeded to work on his integrative project in the fall of 2006 and most of 2007. On November 26, 2007, Felkner requested an extension of time to complete his integrative project. In January 2008, Dean Bennett-Speight granted Felkner an extension until May 11, 2009, to complete his degree requirements. The extension was conditioned upon Felkner submitting a portion of the project by April 15, 2008, a condition with which he did not comply. On March 17, 2008, Felkner requested an additional six-week extension; but both Dean Bennett-Speight and Professor Pearlmutter denied his request.

         In December 2007, amid his integrative project extension requests, Felkner filed the instant action in Providence County Superior Court alleging that defendants' conduct toward him during his enrollment in the MSW program violated his First and Fourteenth Amendment rights. Specifically, Felkner's initial verified complaint included claims for: deprivation of his right to freedom of expression "on issues of political concern" (count one) in part by placing "unconstitutional conditions on [his] continuance in the [MSW] program" (count four); violation of his right to freedom of expression by retaliating against him for "expressing his political beliefs and for publicly criticizing [RIC's] liberal biases" (count two) and by compelling him to "express ideas * * * contrary to his political beliefs" (count three); and violation of his right to equal protection (count five). The defendants answered and filed a motion for summary judgment, which a hearing justice denied after finding the case to be "extremely fact intensive and not susceptible to disposition by summary proceedings."

         On December 3, 2013, Felkner filed an amended complaint, adding two counts. One new claim alleged that defendants had violated his procedural due process rights by the way in which they conducted the ASC hearings related to the complaints involving Felkner (count six). The other new claim alleged that defendants had engaged in a conspiracy to violate his civil rights, in violation of 42 U.S.C. § 1985(3) (count seven). For all of the alleged constitutional violations contained in the amended complaint, Felkner asserted that he was entitled to damages pursuant to 42 U.S.C. §§ 1983 and 1988 as well as the Rhode Island Civil Rights Act (RICRA), including punitive damages. Felkner also sought an order expunging the ASC hearings from his academic file, an extension of time for him to complete his MSW degree, injunctive relief restraining enforcement of RIC's speech code, [7] and attorney's fees.

         The defendants sought to strike plaintiff's claim for punitive damages after receiving a request for interrogatories seeking the individual defendants' personal financial details.[8] After conducting a hearing pursuant to Palmisano v. Toth, 624 A.2d 314 (R.I. 1993), the hearing justice struck plaintiff's claim for punitive damages, finding that defendants' conduct toward Felkner had not "rise[n] to the level of recklessness or callous indifference" to his constitutional rights and that, therefore, he had not established a prima facie case for punitive damages.

         In March 2015, defendants filed a renewed motion for summary judgment on all of plaintiff's claims, arguing in part that defendants were protected from civil liability, if any, by the doctrine of qualified immunity. In Felkner's objection to the motion, he asserted that the law of the case doctrine barred the renewed motion for summary judgment because the first motion for summary judgment had been denied and defendants had previously raised the issue of qualified immunity, although the hearing justice had not yet reached the issue or made any rulings thereon. He also argued that, if the renewed motion were to be considered, there were several issues of disputed facts that would preclude the entry of summary judgment against him.

         The hearing justice disagreed with Felkner's objections, concluding in a written decision that the law of the case doctrine did not prevent her from deciding defendants' second motion for summary judgment because the record had significantly expanded during the several years of discovery that had taken place between the filing of the two dispositive motions. The hearing justice also concluded that there were no genuine issues of material fact and that defendants were entitled to judgment as a matter of law. The hearing justice did not substantively address the issue of qualified immunity, concluding this issue was moot based upon her conclusion that none of defendants' actions had violated Felkner's First and Fourteenth Amendment rights. Final judgment entered in favor of defendants in November 2015, and Felkner timely filed a notice of appeal.

         II

         Discussion

         Felkner is raising four main issues before this Court. The first is whether the law of the case doctrine should have precluded the hearing justice from considering defendants' renewed motion for summary judgment. The second is whether genuine issues of material fact should have precluded the entry of summary judgment for each of Felkner's federal constitutional claims. The third issue is whether the doctrine of qualified immunity protects the individually named defendants from potential liability. The fourth issue is whether Felkner demonstrated a prima facie case for punitive damages. We take each issue in turn.

         A

         Law of the Case Doctrine

         We first briefly address whether the law of the case doctrine should have precluded the hearing justice's consideration of defendants' renewed motion for summary judgment. Felkner argues that the hearing justice erred in considering the renewed motion because she relied upon the same affidavits as those relied on by the first hearing justice who presided over-and denied-defendants' first motion for summary judgment. Felkner also argues that the expanded record reinforced the factual issues, rather than eliminating them.

         "The law of the case doctrine provides that, after a judge has decided an interlocutory matter in a pending suit, a second judge, confronted at a later stage of the suit with the same question in the identical manner, should refrain from disturbing the first ruling." Quillen v. Macera, 160 A.3d 1006, 1012-13 (R.I. 2017) (alteration omitted) (quoting Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 677 (R.I. 2004)). "The purpose of the doctrine is to ensure 'the stability of decisions and avoid unseemly contests between judges that could result in a loss of public confidence in the judiciary.'" Id. at 1013 (alteration omitted) (quoting Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 683 (R.I. 1999)). Nevertheless, the doctrine is "a flexible rule" and "may be disregarded when a subsequent ruling can be based on an expanded record." Id. (quoting Berman v. Sitrin, 101 A.3d 1251, 1262 (R.I. 2014)). "When presented with an expanded record, it is within the trial justice's sound discretion whether to consider the issue." Ferguson v. Marshall Contractors, Inc., 745 A.2d 147, 152 (R.I. 2000) (quoting Goodman v. Turner, 512 A.2d 861, 864 (R.I. 1986)).

         Nearly seven years elapsed between the two motions for summary judgment filed by defendants in this case. The hearing justice acknowledged that defendants had submitted the same documents in support of their renewed motion, but that the parties had conducted significant discovery and the record had also been expanded by new exhibits. The hearing justice concluded that the law of the case doctrine did not preclude her consideration of the renewed motion for summary judgment because the record before her had "expanded significantly" and included "exhibits that did not exist when the [c]ourt ruled on [d]efendants' first motion for summary judgment."

         Our review of the record reveals that the renewed motion for summary judgment was submitted on a much broader record than the original motion for summary judgment. In the intervening seven years, the parties produced additional discovery-the hearing justice referred to "ten depositions and thousands of pages of documents" in her written decision on the renewed motion for summary judgment-and Felkner amended his complaint to add claims for conspiracy and violation of procedural due process. Because the record before the hearing justice had indeed been expanded since the denial of defendants' initial motion for summary judgment, we are of the opinion that she was acting well within her discretionary authority in entertaining and deciding the renewed motion for summary judgment. See Quillen, 160 A.3d at 1012-13; Berman, 101 A.3d at 1262.

         B

         Constitutional Claims

         The hearing justice concluded that Felkner failed to show genuine issues of material fact on any of his claims brought pursuant to 42 U.S.C. §§ 1983 and 1988, alleging violations of his rights to freedom of expression, equal protection, and due process, as well as on his claim pursuant to 42 U.S.C. § 1985(3), alleging a civil conspiracy to violate these constitutional rights.[9]On appeal, Felkner challenges her conclusions on each of these claims.[10]

         1

         Standard of Review

         "This Court will review the grant of a motion for summary judgment de novo, employing the same standards and rules used by the hearing justice." Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)). "We will affirm a trial court's decision only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Id. (alteration omitted) (quoting Daniels, 64 A.3d at 304). "Furthermore, 'the nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.'" Id. (quoting Daniels, 64 A.3d at 304). "[S]ummary judgment should enter against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Id. (deletion omitted) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)). "It is a fundamental principle that summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously." Botelho v. City of Pawtucket School Department, 130 A.3d 172, 176 (R.I. 2016) (alteration omitted) (quoting Tarro v. Checrallah, 60 A.3d 598, 601 (R.I. 2013)).

         2

         Freedom of Speech and Expression

         Felkner's first claim alleges that defendants deprived him of his rights to freedom of speech and expression secured by the First Amendment to the United States Constitution and article 1, section 21 of the Rhode Island Constitution.[11] He seeks redress under 42 U.S.C. §§ 1983[12] and 1988, [13] as well as RICRA.

         The freedom of speech and expression is perhaps our most cherished right as residents of the United States. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal." Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 641 (1994). Moreover, "one important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say * * *.'" Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (quoting Pacific Gas and Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 16 (1986) (plurality opinion)).

         Nor can it be gainsaid that freedom of speech and expression is alive and well in our public educational institutions. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. * * * The classroom is peculiarly the marketplace of ideas." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 512 (1969) (internal citation omitted) (quoting Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 603 (1967)). Rights guaranteed by the First Amendment, however, are not unlimited in the context of academia. See Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988).

         In the case under review, both parties seemingly acknowledge that the Hazelwood case is instructive. Hazelwood stands for the proposition that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273.[14]

         Our task in this appeal is not to determine the breadth of Felkner's constitutionally protected rights of speech and expression while a student in the MSW program at RIC, nor indeed to determine whether such rights are necessarily tempered by "legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273. Rather, it is to conduct a de novo review of the record and determine whether genuine issues of material fact exist that would preclude the granting of summary judgment. See Newstone Development, LLC, 140 A.3d at 103. In that regard, we need go no further than the affidavit of Richard Gelles, Ph.D., submitted in support of Felkner's opposition to defendants' motion for summary judgment.

         At the time of his affidavit, Dr. Gelles was the Dean of the School of Social Policy & Practice at the University of Pennsylvania and a former member of the faculty at the University of Rhode Island. After reviewing the allegations in Felkner's verified complaint, Dr. Gelles attested that, if Felkner's claims were true, the alleged conduct by defendants was "contrary to the concepts of academic freedom and constitute a substantial departure from the norms of academic debate and scholarship that should prevail at colleges and universities, as well as in programs and/or schools offering the Masters of Social Work degree[.]"

         Specifically, in his affidavit, Dr. Gelles referenced Felkner's allegations that: (1) Professor Ryczek sent an email to Felkner stating that the social work profession has "a mission devoted to the value of social and economic justice" and anyone who holds antithetical views "might ask themselves whether social work is the profession for them" and indeed whether RIC is "a good fit for them"; (2) Professor Weisman sent an email which stated that social work is a "values-based profession" and that the SSW has a "responsib[ility] to promote the values that underlie social work. For the most part, Republican ideology is oppositional to the profession's fundamental values"; (3) Felkner's statement that Professor Pearlmutter "led a fifty-minute in-class discussion assailing Mr. Felkner's conservative views" and allowed other students to "assault [his] views without allowing him to respond"; and (4) the fact that Felkner was prevented "from working on a welfare reform project with the Governor's office because" it was contrary to "the political perspective of the project."

         In conducting our de novo review, we are mindful that neither "students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate[, ]" but that such rights must be "applied in light of the special characteristics of the school environment[.]" Tinker, 393 U.S. at 506. Accordingly, educational institutions are granted wide latitude to establish their curricula and "further [their] legitimate curricular objectives." Ward v. Polite, 667 F.3d 727, 733 (6th Cir. 2012) (discussing Hazelwood). So, too, must teachers be given "broad discretion to give grades" and "in limiting speech when they are engaged in administering the curriculum." Settle v. Dickson County School Board, 53 F.3d 152, 156 (6th Cir. 1995) (citing Tinker, 393 U.S. at 512-14). Moreover, "[s]o long as the teacher limits speech or grades speech in the classroom in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion or political persuasion, the federal courts should not interfere." Id. at 155; see Ward, 667 F.3d at 734 ("[T]he First Amendment does not permit educators to invoke curriculum 'as a pretext for punishing a student * * *.'") (alteration omitted) (quoting Settle, 53 F.3d at 155). Courts "should show great respect for the faculty's professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." Regents of University of Michigan v. Ewing, 474 U.S. 214, 225 (1985) (footnote omitted).

         In light of these principles, we are of the opinion that Felkner's freedom of speech claims deserve to go to a jury. The record in this case is voluminous and replete with disputed facts. Resolving all such facts in the light most favorable to Felkner, the issue is whether he has made tenable claims that defendants have violated his constitutional rights to free speech and expression. We believe that he has. Felkner describes himself as a "conservative libertarian" and was no doubt a challenging student with a political agenda as robust as the agenda he ascribes to defendants. Given the broad discretion afforded to educational institutions, he may have a difficult road ahead of him. Nevertheless, he has raised genuine issues of material fact concerning whether the actions of defendants are "reasonably related to legitimate pedagogical concerns" or merely a pretext for punishing him for his conservative views. See Hazelwood, 484 U.S. at 273. "Although we do not second-guess the pedagogical wisdom or efficacy of an educator's goal, we would be abdicating our judicial duty if we failed to investigate whether the educational goal or pedagogical concern was pretextual." Axson-Flynn v. Johnson, 356 F.3d 1277, 1292-93 (10th Cir. 2004) (emphases and footnote omitted). The fact that a student may be required to debate a topic from a perspective that is contrary to his or her own views may well be reasonably related to legitimate pedagogical concerns. That relationship is far more tenuous, however, when the student is told that he or she must then lobby for that position in a public forum or that his or her viewpoint is not welcome in the classroom because it is contrary to the majority viewpoint of the students and faculty.

         There is ample evidence in the record which, if found credible by a factfinder, suggests that the MSW program had a strong predisposition toward so-called "progressive" social values. Viewing, as we must, the evidence most generously to Felkner, we are of the opinion that, in light of his avowedly conservative bent, genuine issues of material fact exist as to whether defendants' justifications for their actions were truly pedagogical or whether they were pretextual. See Axson-Flynn, 356 F.3d at 1292-93. The subjective motivation of defendants is subject to conflicting interpretations; the duty of a trial justice, and this Court, in considering a motion for summary judgment "is not to resolve disputed factual issues but only to find them." Pound Hill Corporation, Inc. v. Perl, 668 A.2d 1260, 1264 (R.I. 1996). We find several here. Accordingly, we vacate the judgment as to count one and remand to the Superior Court for trial or other disposition.

         3

         Retaliation

         Felkner's second claim alleges that defendants "engaged in actions that are retaliatory and have therefore deprived [him] of his clearly established free speech rights * * *." Felkner specifically alleges that the following conduct was retaliatory: "penalizing his grades, filing ethics charges against him, delaying his graduation, and denying him the opportunity to work on welfare reform in the Governor's office, among other things[.]" In his objection to defendants' renewed motion for summary judgment, Felkner expands on his enumerated list to include "[r]equiring him to stop taping classes and conversations with instructors; * * * [c]omplaining about a website he had created about the political bias he was experiencing; * * * [o]rganizing or supporting verbal attacks on him against his views; * * * [t]hreatening to dismiss him from the program; * * * [a]ttempting to require him to lobby the General Assembly in support of political positions he opposed;" and "[n]ot permitting him to complete his degree requirements."

         To establish a First Amendment retaliation claim, a plaintiff must prove that (1) he "engaged in constitutionally protected conduct" and (2) "this conduct was a substantial or motivating factor for the adverse" action taken against him. McCue v. Bradstreet, 807 F.3d 334, 338 (1st Cir. 2015) (quoting Padilla-García v. Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000)).

         We begin by examining one of the alleged acts of retaliation. Felkner alleges that defendants impermissibly retaliated against him for exercising his constitutional right to record his classes and discussions with faculty. According to Felkner, he began recording conversations with faculty because "he believed that Ryczek had lied to the ASC about their conversations." Felkner also tape-recorded his classes. He would then post a rough transcript of some of these conversations on his personal website. Felkner further asserts that Professor Pearlmutter led a fifty-minute in-class discussion assailing his conservative views and the postings on his website. According to Felkner, Professor Ryzcek also allowed other students to criticize Felkner's views without allowing him to respond. In addition, Professor Pearlmutter filed a complaint with the ASC claiming that Felkner's recordings violated the NASW Code of Ethics. Felkner argues that these actions by defendants were in retaliation against him because he had exercised his constitutional right to free speech.

         It is well settled that citizens may record government officials in the exercise of their official duties. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). "The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording." American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012). The right to make an audiovisual recording is not absolute, however; "[i]t may be subject to reasonable time, place, and manner restrictions." Glik, 655 F.3d at 84. Thus, acknowledging that the right to record is an activity protected by the First Amendment, we proceed to examine the activity in the context of an educational institution.

         In this regard, we find Tinker to be instructive. Tinker involved the right of high school students to wear black armbands in protest of the war in Vietnam. Tinker, 393 U.S. at 504. Recognizing the First Amendment rights of the students, the Supreme Court held that speech could be restricted in an educational setting under two circumstances: if the speech "might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities," or ...


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