Monday, July 14, 2014

Eighth Circuit Upholds Professor’s Discharge

8th Cir

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The US Court of Appeals for the Eighth Circuit recently issued an interesting opinion which concluded that a physics professor at the University of South Dakota could be discharged for violating the university’s “civility code.”  After sending an inflammatory e-mail to his department head, the professor was discharged under a policy which provided that,

“Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.”

The plaintiff in the case sued the university for his discharge alleging, in part, that the policy was unconstitutionally vague.  The District Court agreed with the plaintiff, but the Eighth Circuit reversed, holding that:

“While the district court focused exclusively on the policy’s use of the term “civility,” the civility clause articulates a more comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy. The outer contours of the civility clause perhaps are imprecise, but many instances of faculty misconduct would fall clearly within the clause’s proscriptions, thus precluding the conclusion that the policy is facially unconstitutional.”

This decision presents a number of fascinating issues.  The intersection between the First Amendment and civility-type codes is one that often comes up in the employment context. It is particularly interesting to see the issue arise in the academic setting.

- Joe Seiner

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