Brown v. Li

Opinion by Judge GRABER; Concurrence by Judge FERGUSON; Partial Concurrence and Partial Dissent by Judge REINHARDT.

The mandate is recalled for the limited purpose of correcting the caption. The Opinion filed on August 12, 2002, is amended as follows:

On slip opinion page 11773 [299 F.3d 1092], in the caption after "CHARLES LI, in his" insert "individual and" so it reads, "CHARLES LI, in his individual and official capacity as Dean."

On slip opinion page 11773 [299 F.3d at 1092], in the caption after "GALEN STUCKY," change "Material" to "Materials."

On slip opinion page 11773 [299 F.3d at 1092], in the caption after "SARAH PRITCHARD," delete "in her individual and" so it reads, "SARAH PRITCHARD, in her official capacity as Director."

The mandate shall reissue forthwith.

GRABER, Circuit Judge.

In this appeal, we consider the extent to which the First Amendment and due process guarantees are implicated when a graduate student's thesis committee declines to approve a thesis that meets academic and professional standards in all respects except one: The acknowledgments section does not conform to established academic and professional standards. We conclude that the Amendment does not require university professors to assign a passing grade to such a thesis. We further hold that the university's review procedures satisfied due process. Accordingly, we affirm the district court's grant of summary judgment in favor of Defendants, who are university professors and officials. However, we remand the case for the district court to address a state constitutional claim that it did not resolve.

Plaintiff Christopher Brown was a master's degree candidate in the Department of Material Sciences at the University of California at Santa Barbara ("UCSB"), a public university. In order to earn a master's degree, Plaintiff was required to write a thesis under the guidance and subject to the approval of his thesis committee: Defendants Dr. Galen Stucky (Plaintiff's thesis advisor), Dr. Daniel Morse, and Dr. Fred Lange.

Rules governing the content and structure of master's theses, and the procedures for submitting those theses for approval, are contained in UCSB's Graduate Student's Handbook 1998-99 (Sept.1998) ("Handbook") and in the UCSB Guide to Filing Theses and Dissertations (Feb.1998) ("Guide"). The Guide notes that one of the pedagogical purposes of the thesis project is to educate students about how to communicate research results in their chosen disciplines: "The essence of academic research is shared results. Each discipline has a relatively standard method of presenting research results so that other researchers can find and build on past work." Guide at 1. With respect to the content of a thesis or dissertation, the Guide states:

You and your committee are responsible for everything between the margins. The organization, presentation, and documentation of your research should meet the standards for publishing journal articles or monographs in your field. For general information, consult any standard style guide (such as Strunk and White, Turabian, or The University of Chicago Manual of Style). For discipline-specific questions, consult your faculty committee and/or a style sheet from a journal in your discipline.

Id. (emphasis added).

The Guide also provides the general criteria for an optional "Dedication and/or Acknowledgments" section of a student thesis: "You may wish to dedicate this work to someone special to you or to acknowledge particular persons who helped you. Within the usual margin restrictions, any format is acceptable for these pages."

One of the style manuals to which the Guide refers further clarifies the criteria for acknowledgments sections contained in scholarly papers. See Kate L. Turabian, A Manual for Writers of Term Papers, Theses, and Dissertations §§ 1.9, 1.26 (Univ. of Chi. Press, 6th ed.1996). With respect to acknowledgments, it states:

In the acknowledgments, the writer thanks mentors and colleagues, lists the individuals or institutions that supported the research, and gives credit to works cited in the text for which permission to reproduce has been granted. Although one might wish to acknowledge special assistance such as consultation on technical matters or aid in securing special equipment and source materials, one may properly omit formal thanks for the routine help given by an adviser or thesis committee. The generic heading ACKNOWLEDGMENTS, which appears only on the first page, is in uppercase and centered over the text.

The Handbook elaborates further on the supervisory role of the thesis committee with respect to the content of a master's thesis:

Students, in conjunction with the faculty who supervise the writing of the dissertation, are responsible for the quality of scholarship in theses and dissertations, including presentation in a format that conforms to disciplinary standards. Faculty should not approve a dissertation that fails to address disciplinary and/or departmental standards.

Handbook at 12 (emphasis added).

In the spring of 1999, Plaintiff brought his thesis, "The Morphology of Calcium Carbonate: Factors Affecting Crystal Shape," to his committee for final approval. Plaintiff did not include an acknowledgments section of any kind in the document that he delivered to his committee. All three committee members signed an approval page stating, "This Thesis of Christopher Brown is approved." (Emphasis added.) In accordance with UCSB rules, that approval page became the second page of the thesis.

After he had obtained the signature page from his committee, Plaintiff inserted an additional, two-page section into his thesis without the knowledge or consent of his committee members. That section, entitled "Disacknowledgements," began: "I would like to offer special Fuck You's to the following degenerates for of being an ever-present hindrance during my graduate career...." It then identified the Dean and staff of the UCSB graduate school, the managers of Davidson Library, former California Governor Wilson, the Regents of the University of California, and "Science" as having been particularly obstructive to Plaintiff's progress toward his graduate degree. Plaintiff later explained that he had not revealed the section to the members of his committee because he feared that they would not approve it.

UCSB rules require that graduate students file their approved theses or dissertations in the university's library as a prerequisite to earning a degree. In June of 1999, Plaintiff attempted to file his thesis, including the unapproved "Disacknowledgements" section, with the library. Defendant Charles Li, the Dean of the Graduate Division of UCSB, was alerted to the presence of the "Disacknowledgements." Dean Li, in turn, referred the issue to Plaintiff's thesis committee.

During June and July, Plaintiff met with members of his committee and with Dean Li to discuss the "Disacknowledgements." He also met with the UCSB Ombudsperson and with the Dean of the UCSB School of Engineering. Plaintiff drafted an alternative version of the section, eliminating the profanity.

The committee members agreed that the "Disacknowledgements" section (even in its nonprofane form) did not meet professional standards for publication in the field. They notified Plaintiff of their decision in a memorandum dated August 5, 1999. That memorandum, written by Dr. Stucky, read in part:

1) The Dissertation Committee stands by its approval of the thesis (dissertation) as it was presented by you to the Committee for their evaluation, review and approval; and, subsequently signed by the members of the Dissertation Committee.

2) The disacknowledgement was not submitted to the Dissertation Committee or to the Graduate Division of the University of California, but for deposition in the Library without knowledge of either the Dissertation Committee or the Graduate Division. It is the understanding of the Dissertation Committee members who reviewed your thesis that the signatures of the Dissertation Committee members are a guarantee that the presentation and content of the entire thesis meets the standards and requirements of the Department, College, and the University of California to whom the thesis is submitted for the appropriate advanced degree. The addition or removal of material from a dissertation after the examination, evaluation and signed approval of the original materials that are presented by the candidate to the Committee; and, the subsequent presentation to the scientific community and to the University of such a modified dissertation under the approval signatures of the Committee given only for the original Dissertation presentation to the Committee without the consent of the Committee for the addition or removal of material, is unacceptable to the Committee.

In the August 5 memorandum, the committee also commented that it had consulted with counsel and determined that a thesis or other scientific manuscript is not a "public forum." The committee further said that it would not approve the addition of the "added material[s]" to the original, approved thesis, nor would it approve a thesis that contained them.

On the same date, Dean Li wrote a letter to Plaintiff, informing him that his degree would be conferred upon the approval of his thesis. The letter further noted that approval would be forthcoming as soon as Plaintiff removed his "Disacknowledgements." It outlined Plaintiff's avenues of appeal, should he opt to challenge the committee's decision not to approve the new version of the thesis.

Plaintiff declined to remove the "Disacknowledgements." Instead, he submitted a written appeal to the Academic Affairs Committee (AAC) of the Department of Material Sciences. The AAC considered Plaintiff's appeal and unanimously rejected it in a written decision. The AAC reasoned that the entire paper, not merely the technical content of the thesis, was subject to the review and approval of the thesis committee — just as the entirety of a scientific paper would be subject to the review and approval of the editorial board of any publication to which it was submitted. The AAC articulated the standard for an acknowledgment section:

An Acknowledgment section in a scientific paper is relevant only as a vehicle for the author to give proper credit to people or organizations that have contributed to make possible the technical work being reported. In the case of a thesis this could include faculty, post-docs, fellow students, and laboratory staff who have helped the student with ideas, setting up experiments, clarifying difficult questions, etc. A student is also expected to thank the agency that has provided funding for his/her assistantship and research expenditures. Under the same premise, the student is given a certain latitude in a thesis to thank his/her parents, spouse, family or close friends who have provided moral or financial support through his/her education. The student is encouraged to have an Acknowledgment section as part of teaching him/her proper professional conduct.

The AAC determined that Plaintiff's "Disacknowledgements" did not meet that standard. It concluded that the section was otherwise irrelevant to the content of his thesis. The AAC reminded Plaintiff that several other avenues were open to him for disseminating the opinions contained in the "Disacknowledgements" and observed that it was common in the field for "technical material removed from a paper on the ground of irrelevancy to be published separately." The decision additionally noted the rights of the committee members not to be associated, through their approval, with the content of the "Disacknowledgements" section. Finally, the AAC commented that Plaintiff's conduct was unprofessional in later inserting the material into his thesis without the knowledge or approval of his thesis committee.

Plaintiff appealed the AAC's decision to the Associate Dean of the Graduate Division, Diane Mackie. After reviewing the file, Dean Mackie denied the appeal.

Next, Plaintiff appealed to the UCSB Graduate Council, to which he submitted extensive written material. The Graduate Council rejected Plaintiff's appeal in a written decision. It reasoned that, under the university's regulations, the entirety of Plaintiff's thesis was subject to the approval of his thesis committee, and the "committee members [were] within their rights to withdraw their approval, as they do not approve of your added section." The Graduate Council additionally found that Plaintiff had been denied a degree only because he had not completed one of the prerequisites to completing a master's degree: filing a thesis approved by the committee. The Graduate Council suggested two ways in which Plaintiff could complete his degree:

1) seek approval of your entire thesis from your current committee, including the content of any acknowledgements/dedication section. All sections of your thesis are subject to their editing and approval.

or.

2) seek to change the membership of the committee, subject to the approval of your department and the Graduate Division and appropriate university regulations. Submit your complete thesis with the new committee and meet all editing or research requirements imposed by that committee.

Plaintiff chose not to pursue either option proposed by the Graduate Council. Instead, he filed a grievance with the Academic Freedom Committee (AFC). He presented his case orally to the Chair of the AFC and in writing to the full AFC. The AFC rejected his grievance. It reasoned that the rules for filing theses did not impermissibly restrict academic freedom and that Plaintiff had failed to follow those rules.

By January 2000, Plaintiff had exceeded the time limit for completing his master's degree and was, therefore, placed on academic probation in accordance with pre-existing UCSB policy. Dean Li notified Plaintiff that if he failed to complete his degree by the end of the Spring Quarter of 2000, then the Department of Material Sciences would be asked to recommend either academic disqualification or continued academic probation. On April 18, 2000, near the end of Spring Quarter, Dean Li sent a memorandum to the Department, asking for its recommendation as to Plaintiff's academic status. On May 16, 2000, the Department recommended that Plaintiff receive his degree, based on the draft of the thesis that had received approval, despite Plaintiff's failure to comply with the requirements for earning his degree. UCSB followed the recommendation and awarded Plaintiff his degree. However, because Plaintiff has not filed the approved version of his thesis with the UCSB library, the thesis has not been added to the library's archive of theses.

Plaintiff initiated this § 1983 action on June 16, 2000. His complaint alleged three claims: (1) that Defendants (the Dean of the UCSB Graduate Division, the Chancellor of UCSB, the members of Plaintiff's thesis committee, and the Director of the UCSB library) violated his First Amendment rights by "withholding" his degree and by their "conduct"; (2) that Defendants violated his right to procedural due process by withholding his degree without having provided him a formal hearing; and (3) that Defendants' refusal to grant his degree unless he removed the "Disacknowledgements" violated article I, section 2, of the California Constitution. Plaintiff sought damages, declaratory relief, and an injunction to compel Defendants to place Plaintiff's thesis, including the "Disacknowledgements," in the UCSB library.

Defendants moved for summary judgment on the federal claims. They argued that they were entitled to qualified immunity on the damages claims and that Plaintiff was not entitled to injunctive relief. The court permitted Plaintiff to conduct limited discovery.

After discovery, Plaintiff filed a memorandum in opposition to summary judgment. He attached, as an exhibit to the memorandum, several other students' acknowledgments sections approved by UCSB faculty, including three approved by Defendant Stucky. None were approved by any other members of Plaintiff's thesis committee. All of those acknowledgments sections conveyed thanks to various people and institutions, sometimes in profuse, humorous, or poetic form. In addition to thanking teachers, colleagues, family, friends, staff, employers, the university, and sources of grants or other support, some students thanked God for providing guidance or thanked their pets. The three sections approved by Dr. Stucky included (1) a three-page section describing how the student came to arrive at graduate school; thanking his grandfather, professors, staff, co-researchers, and "[o]ther chemists in the Stucky group that have given valuable input"; and endorsing certain products; plus a half-page of "negative statement[s]" related to the inferior state of the chemists' facilities and to a flood that ruined some of the student's files; plus a dedication page honoring "my family and friends who have died since I began my college career" and with whom the student "would have liked ... to share this moment"; (2) a five-page section thanking many professors, scientists, friends, supervisors, colleagues, graduate students, a summer assistant, collaborators, "influential people in the zeolite field," the staff of the Materials Research Laboratory, family, and friends; plus a dedication page honoring the student's wife for "her support, encouragement, and love" and his daughter for her "smiles and hugs"; (3) a one-page section thanking the student's professors and colleagues, his parents, and a friend; plus a dedication page honoring his wife "for all of her love and understanding."

After holding a hearing, the court granted summary judgment in favor of Defendants. Plaintiff timely appealed.

We review de novo a grant of summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). Viewing the evidence in the light most favorable to the nonmoving party, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Id.

A. Qualified Immunity on the First Amendment Claim

We apply a three-step test to determine whether a defendant is entitled to qualified immunity on a federal constitutional claim. First, we must determine whether the facts alleged, viewed in the light most favorable to the plaintiff, demonstrate that the defendant's conduct violated a constitutional right. Robinson v. Solano County, 278 F.3d 1007, 1012-13 (9th Cir.2002) (en banc) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Next, if the facts alleged show a constitutional violation, we must decide whether the constitutional right at stake was clearly established at the time of the alleged violation. Id. Finally, if the right was clearly established, we assess whether an objectively reasonable government actor would have known that his or her conduct violated the plaintiff's constitutional right. Id.

Plaintiff primarily contends that the facts, viewed in his favor, demonstrate a violation of his clearly established First Amendment rights. He challenges three acts: (1) the thesis committee's decision not to approve his "Disacknowledgements"; (2) the library's decision not to file his thesis in its archives; and (3) the UCSB's initial decision not to confer his degree.

Plaintiff cannot state separate First Amendment claims with respect to the second and third decisions. Under UCSB's policy, each of those two decisions was nondiscretionary, that is, turned completely on the committee's decision whether to approve the thesis. Had the committee approved the "Disacknowledgements" section, the library would have had to file the thesis containing it. The library had no independent authority to decide whether or not to include the thesis in its collection. Likewise, had Plaintiff filed an approved thesis with the library, UCSB would not have had discretion to decide to withhold or defer the degree.2

Because the decisions not to place the thesis in the library and to delay granting Plaintiff's degree were not independent decisions but, rather, were direct consequences of the committee's decision not to approve the "Disacknowledgements," the real question is whether Defendants violated Plaintiff's First Amendment rights when they refused to approve that section. We have found no precedent precisely on point. However, a review of the cases discussing the relationship between students' free speech rights and schools' power to regulate the content of curriculum demonstrates that educators can, consistent with the First Amendment, restrict student speech provided that the limitation is reasonably related to a legitimate pedagogical purpose.

In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 276, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Supreme Court of the United States held that school officials did not violate students' First Amendment rights when they prohibited the publication in the school newspaper of stories that the officials found objectionable. The Court concluded that the newspaper, which was produced by a high school journalism class, was "fairly ... characterized as part of the school curriculum" because it was "supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences." Id. at 271, 108 S.Ct. 562. Because of its curricular nature, the newspaper did not qualify as a public forum. Id. at 272, 108 S.Ct. 562. The Court then held that, with respect to students' curricular speech, "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." Id. at 273, 108 S.Ct. 562. Both the majority and the dissent in Hazelwood agreed that "the First Amendment permits educators `to assure that participants learn whatever lessons the activity is designed to teach'" and that

the First Amendment should afford an educator the prerogative not to sponsor the publication of a newspaper article that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced," or that falls short of the "high standards for ... student speech that is disseminated under [the school's] auspices...." ... The educator may ... constitutionally "censor" poor grammar, writing, or research because to reward such expression would "materially disrup[t]" the newspaper's curricular purpose.

Id. at 283-84, 108 S.Ct. 562 (Brennan, J., dissenting) (quoting id. at 271-72 & n. 4, 108 S.Ct. 562) (alteration in original); see also Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 91 n. 6, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) (noting that a medical student properly may be judged on questions of personal hygiene and timeliness, as well as on questions of academic and clinical competence).

Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir.1995), more strongly resembles the present case. There, the plaintiff argued that her ninth-grade teacher violated her First Amendment rights when she refused to approve the plaintiff's chosen topic for a class research paper and gave the plaintiff a grade of zero on the assignment when the plaintiff refused to comply with requirements related to the assignment. Id. at 155. The student had submitted only one topic for the teacher's approval, which the student duly received. Then the student — without the knowledge or approval of the teacher — changed her topic. Id. at 154. Relying on Hazelwood's recognition of a school's power to regulate classroom speech, the court rejected the plaintiff's First Amendment argument, holding:

The free speech rights of students in the classroom must be limited because effective education depends not only on controlling boisterous conduct, but also on maintaining the focus of the class on the assignment in question. So long as the teacher violates no positive law or school policy, the teacher has broad authority to base her grades for students on her view of the merits of the students' work. Grades are given as incentives for study, and they are the currency by which school work is measured.

... So 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.

Like judges, teachers should not punish or reward people on the basis of inadmissible factors — race, religion, gender, political ideology — but teachers, like judges, must daily decide which arguments are relevant, which computations are correct, which analogies are good or bad, and when it is time to stop writing or talking. Grades must be given by teachers in the classroom, just as cases are decided in the courtroom; and to this end teachers, like judges, must direct the content of speech. Teachers may frequently make mistakes in grading and otherwise, just as we do sometimes in deciding cases, but it is the essence of the teacher's responsibility in the classroom to draw lines and make distinctions — in a word to encourage speech germane to the topic at hand and discourage speech unlikely to shed light on the subject.

Id. at 155-56 (citations omitted). One judge concurred in the judgment, but concluded that the First Amendment was not implicated at all by the facts presented:

The bottom line is that when a teacher makes an assignment, even if she does it poorly, the student has no constitutional right to do something other than that assignment and receive credit for it. It is not necessary to try to cram this situation into the framework of constitutional precedent, because there is no constitutional question.

Id. at 158 (Batchelder, J., concurring in the judgment).

Hazelwood and Settle lead to the conclusion that an educator can, consistent with the First Amendment, require that a student comply with the terms of an academic assignment. Those cases also make clear that the First Amendment does not require an educator to change the assignment to suit the student's opinion or to approve the work of a student that, in his or her judgment, fails to meet a legitimate academic standard. Rather, as articulated by Hazelwood, "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." 484 U.S. at 273, 108 S.Ct. 562.

Plaintiff argues that the Hazelwood standard does not apply in the context of a university-level assignment, as distinct from a primary-school or secondary-school environment. It is true that the Court left open the question "whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level." Id. at 273 n. 7, 108 S.Ct. 562. It also is true that courts addressing the extent to which a public college or university, consistent with the First Amendment, can regulate student speech in the context of extracurricular activities, such as yearbooks and newspapers, have held that Hazelwood deference does not apply. See, e.g., Kincaid v. Gibson, 236 F.3d 342, 346 & nn. 4 & 5 (6th Cir.2001) (en banc) (holding that the Hazelwood standard did not apply in a challenge to Kentucky State University's regulation of the student yearbook); Student Gov't Ass'n v. Bd. of Trs. of Univ. of Mass., 868 F.2d 473, 480 n. 6 (1st Cir.1989) (concluding that Hazelwood "is not applicable to college newspapers"); see also Nicholson v. Bd. of Educ. Torrance Unified Sch. Dist., 682 F.2d 858, 863 n. 4 (9th Cir.1982) (in a case holding that a high school could require pre-publication review of newspaper articles without violating students' First Amendment rights, stating that "[d]ifferent considerations govern application of the first amendment on the college campus and at lower level educational institutions" and that "activities of high school students" may be reviewed more stringently than those of college students because "the former are in a much more adolescent and immature stage of life and less able to screen fact from propaganda" (citations and internal quotation marks omitted)).

However, the parties have not identified, nor have we found, any Supreme Court case discussing the appropriate standard for reviewing a university's regulation of students' curricular speech. It is thus an open question whether Hazelwood articulates the standard for reviewing a university's assessment of a student's academic work. We conclude that it does.

The Supreme Court has suggested that core curricular speech — that which is an integral part of the classroom-teaching function of an educational institution — differs from students' extracurricular speech and that a public educational institution retains discretion to prescribe its curriculum. For example, in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), the Supreme Court held that a debate sponsored by a state-owned public television station was a nonpublic forum from which the broadcaster could exclude an independent candidate in the exercise of journalistic discretion. In reaching that conclusion, the Court said:

As a general rule, the nature of editorial discretion counsels against subjecting broadcasters to claims of viewpoint discrimination. Programming decisions would be particularly vulnerable to claims of this type because even principled exclusions rooted in sound journalistic judgment can often be characterized as viewpoint based.... Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others. Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.

Id. at 673-74, 118 S.Ct. 1633 (emphasis added). The Court thus referred to the principle that a public school has discretion to engage in its own expressive activity of prescribing its curriculum.

An earlier Supreme Court case also distinguished between curricular and extracurricular activities in the First Amendment context. In Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 872, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982), the Court held that a local school board could not remove books from the school library solely because the members of the board disliked the ideas contained therein. The plurality opinion of the Court was careful, however, to clarify that its ruling did not apply to curricular speech. The plaintiffs did not seek

to impose limitations upon their school Board's discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that by their nature are optional rather than required reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there.