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College administrators who fired a teacher for a classroom exercise that had students shouting out sexual vulgarities are shielded by qualified immunity in a suit brought by the teacher, a divided 2nd U.S. Circuit Court of Appeals ruled Friday. Five administrators who dismissed Edward Vega for his word-association exercise in 1994 will escape liability because the law on free speech and academic freedom was not clearly established at the time, the court said. The ruling Friday in Vega v. Miller, 00-9214, dealt a blow to Vega, a non-tenured English teacher at the New York Maritime College who sued claiming his First Amendment right to academic freedom was violated, and that the school’s sexual harassment policy was vague or overbroad. He also alleged that his rights to due process were violated because he was dismissed without a hearing. The New York Maritime College is a state-run coeducational institution that prepares cadets for service as engineers or officers in the armed forces. Vega had won on the qualified immunity issue in the Southern District of New York, where Judge Denise L. Cote refused to grant summary judgment for the administrators. The word association or “clustering” exercise that landed Vega in hot water began when the students selected “sex” as the topic. While the exercise began with students selecting “safe words” such as “marriage” and “children,” it evolved to the point where most of the class was standing on chairs calling out “penis” and “vagina,” and escalated to what administrators considered extremely vulgar phrases. As the students called out the words and phrases, Vega wrote them down on a blackboard. While no students complained about the exercise, it came to the attention of college administrators through an unrelated complaint brought by a student. It did not help Vega’s cause that he had also issued lesson plans on such provocative topics such as “Mentally retarded people should be gassed.” Judge Cote denied the administrators’ motion for summary judgment as to the academic freedom claim and Vega’s claim that due process was violated because his dismissal without a hearing sullied his reputation, otherwise known as “stigma-plus” claim. Cote found that the law on two claims was clearly established in 1994, and that the officials could not be protected by qualified immunity. FREE SPEECH On the appeal, Senior Judge Jon O. Newman said that in 1994, the case law had not settled “with certainty the extent to which a college professor could be disciplined for permitting student speech in a classroom to exceed reasonable bounds of discourse.” “Not surprisingly, no decision before 1994 (and none since) had clearly established that conduct of the sort that Vega undisputedly took violated a teacher’s First Amendment rights,” he said. “Although qualified immunity is not available simply because the precise conduct at issue has not been previously held unlawful … the available precedents that might usefully have guided the Defendants leave the unlawfulness of their action at least unclear.” While in Dube v. State University of New York, 900 F.2d 587 (2d Cir. 1990), the 2nd Circuit upheld the right of a teacher to express the view that Zionism is a form of racism, Judge Newman said, “Vega’s toleration of the students’ shouted vulgarities was far removed from Dube’s expression of his political views.” On the other hand, Newman said, another case on the books in 1994 showed that a teacher cannot be disciplined “simply because a vulgar word” is contained in assigned materials. In contrast, he said, the 2nd Circuit in Silano v. Sag Harbor Board of Education, 42 F.3d 719 (1994) ruled that a teacher could be denied protection where the teacher demonstrated what he termed the “persistence of vision” phenomena with film clips, including one that portrayed two topless women. Because Vega’s case involved “highly unusual set of circumstances, unlikely to be repeated,” Judge Newman said there was no reason to rule on whether the administrators’ firing of Vega was unlawful. “For purposes of the pending appeal, we rule only that on the state of the law in 1994, the Defendants could reasonably believe that in disciplining Vega for not exercising professional judgment to terminate the episode, they were not violating his clearly established First Amendment academic Freedom rights,” Newman said. DISSENT In dissent, Judge Jose A. Cabranes said, “The majority opinion, in my view, overlooks the First Amendment’s prohibition of vague and overbroad restrictions on speech and undermines its protection of academic freedom as clearly established by the Supreme Court.” “Today the loser is a college teacher in a conservative academic setting who used an ‘alternative’ teaching technique with profane effect,” he said. “In the future, the major losers are likely to be ‘traditionalist’ and unconventional college teachers, whose method or speech is found offensive by those who usually dominate our institutions of higher learning.” Judge Stefan R. Underhill of the U.S. District Court for the District of Connecticut, sitting by designation, joined in the majority opinion. Assistant Solicitors General Robert H. Eason and Marion R. Buchbinder, and Deputy Solicitor General Michael S. Belohlavek represented the defendants. Laura A. Menninger of Paul, Weiss, Rifkind, Wharton & Garrison in New York represented Vega.

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