IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-60021
Summary Calendar
_______________
ANTHONY MARINELLO,
Plaintiff-Appellant,
VERSUS
PHILLIP A. BUSHBY and DWIGHT MERCER,
Individually and in Their Official Capacities,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:95-CV-167-D-D)
_________________________
November 17, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Anthony Marinello appeals a summary judgment on his First
Amendment right not to speak claim and a judgment as a matter of
law (“j.m.l.”) on his freedom of speech claim. Finding no error,
we affirm.
I.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
In the fall of 1994, Marinello was in his third year of a
four-year program pursuing a degree in veterinary medicine from the
College of Veterinary Medicine (“CVM”) at Mississippi State
University.1 As part of his course work, he participated in a food
animal rotationSSa small class with hands-on experience and several
faculty instructors. He complained, both in person and by letter,
to Roger Easley, a professor with certain administrative
responsibilities, that one of the instructors, Wayne Groce, had
treated him unfairly.2 Easley had Marinello complete the rotation
without further instruction from Groce. Even without Groce’s
input, Marinello received a “D.”
By a letter distributed to veterinary faculty and the dean,
defendant Dwight Mercer, Marinello appealed the grade by way of a
letter that contained statements asserting unprofessional,
unethical, collusive, and corrupt conduct on the part of several
faculty members, including Groce, Easley, Bruce Clark, the course
leader, and Sherrill Fleming, one of the other rotation
instructors. The appeal found its way to the Academic and
Professional Standards Committee (“APSC”), the CVM body responsible
for handling grade appeals, which recommended that the dean uphold
the “D” grade. Marinello was so advised.
Meanwhile, by letter to the dean, Easley complained that
1
The program requires four years of study, but, at the time, applicants
had to reapply each of the four years for admission to the next phase. Because
of poor performance in a class at the end of the second phase, Marinello entered
the third phase on academic probation.
2
Marinello also sent the letter to other members of the food animal
faculty and administration.
2
Marinello had violated standards of reasonable professional
behavior by making false accusations, distortions of facts, and
slanderous comments in his grade appeal letter. Easley formally
requested a review by the APSC of Marinello’s conduct.
The dean notified Marinello of the professor’s charges and
referred the matter to the Academic and Professional Standards
Select Committee (“APSSC”).3 The APSSC was to consider both
Easley’s complaint and Marinello’s claim, articulated in his grade
appeal letter, that he had been verbally harassed by Groce and
mistreated by other faculty members. Marinello was notified of the
committee’s hearing and given the opportunity to submit documents,
identify witnesses he wanted interviewed, and make a personal oral
presentation to the committee.
The APSSC found that in the letter appealing his grade,
Marinello had made false statements regarding faculty. It found
further that the statements violated the professional guidelines
applicable to veterinary students and practicing veterinarians.
In his letter to Marinello reporting the APSSC’s findings, the
dean informed Marinello that he was being placed on disciplinary
probation as a result of his breach of the conduct normally
expected of a professional student and directed Marinello, inter
alia, to provide the dean with an essay synopsizing the Principles
of Veterinary Medical Ethics and discussing the application of
3
The APSSC was established specifically to hear this complaint, because
Easley had requested that one member of the APSC who worked under Easley be
recused to avoid the appearance of impropriety. Two other individuals, including
a student, were added to the APSC, forming the select committee.
3
those principles to the actions Marinello had taken during the
grade appeal process, and to set up a meeting to discuss the
synopsis and events with the dean. The dean’s letter advised
Marinello that his admission to phase four (final year) of his
studies was contingent on his compliance with the dean’s
directions.
Marinello sought review by a university committee of the grade
appeal, the complaints regarding his letter, and the dean’s
resulting disciplinary action. This committee also upheld the
grade determination and ethics violation; it referred the
disciplinary matter back to the dean. When his admission to phase
four of his veterinary training was denied, ostensibly because of
his failure to complete the dean’s assignment, Marinello filed this
action.
II.
Marinello sued Mercer and Phillip Bushby, Director of Academic
Programs, alleging, inter alia, that the dean’s writing assignment
violated his First Amendment right not to speak and that he was
denied admission to his fourth year of veterinary school in
retaliation for the exercise of his free speech rights in his grade
appeal letter. After initially granting a temporary restraining
order requiring Marinello’s admission, the district court denied a
preliminary injunction, ruling that Marinello had failed to carry
his burden of establishing the existence of a substantial
likelihood that he would prevail on the merits. We affirmed. See
4
Marinello v. Bushby, No. 95-60374 (5th Cir. Jan. 25, 1996).
The court then granted defendants’ motion for summary judgment
on the claim that the writing assignment violated Marinello’s right
not to speak. The retaliation claim went to trial. The court
granted defendants’ motion for j.m.l. after hearing Marinello’s
evidence. Marinello appeals both of these rulings.
III.
A.
We review summary judgment de novo, viewing the facts and
inferences in the light most favorable to the nonmovant. See Hall
v. Gillman Inc., 81 F.3d 35, 36-37 (5th Cir. 1996). Summary
judgment is appropriate if "there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law." FED. R. CIV. P. 56(c); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
“[N]either students [nor] teachers shed their constitutional
rights to freedom of speech and expression at the schoolhouse
gate.” Tinker v. Des Moines Indep. Sch. Dist., 343 U.S. 503, 506
(1969). In limited situations, the First Amendment extends to
protect the right not to speak. See, e.g., Wooley v. Maynard,
430 U.S. 705, 714 (1977); West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 614, 642 (1943). We are aware of no case,
however, in which the right not to speak has been found outside the
context of governmental compulsion to disseminate a particular
political or ideological message. See United States v. Sindel,
5
53 F.3d 874, 878 (8th Cir. 1995) (citing decisions).
Even assuming the right not to speak reaches beyond such a
narrow setting, state school officials possess broad discretion in
the management of school affairs, and we will not offhandedly
interfere with the “daily operation of school systems.” Campbell
v. St. Tammany Parish Sch. Bd., 64 F.3d 184, 187-88 (5th Cir.
1995). Educators have a plain and valid interest in carrying out
the educational mission of their school, and that mission justifies
restrictions on speech that would not be valid outside the
educational context.4
The CVM trains students to become doctors of veterinary
medicine. Part of that education includes the inculcation of the
professional standards that veterinarians must follow. Indeed, as
we noted in the first appeal, “[t]he standard by which the college
regulated Marinello’s speech mirrors that standard by which he
would be measured once admitted to the profession for which his
degree was to prepare him. The school’s efforts constituted a
legitimate educational mission.” Marinello at 4-5.
Marinello does not challenge the ethical standards the CVM
applied to his conduct. Rather, he simply argues that the writing
assignment violated the First Amendment.
Regardless of whether that assignment required an admission
that he violated the rules of professional ethics applicable to
4
See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986)
(“Nothing in the Constitution prohibits states from insisting that certain modes
of expression are inappropriate and subject to sanctions. The inculcation of
these values is truly the 'work of the schools.'”).
6
veterinarians, the writing assignment did not violate Marinello’s
right not to speak. The APSSC found that he had violated the rules
of professional ethics. Fulfilling the CVM’s pedagogical mission,
the dean conditioned admission to the fourth year of school on
completion of an assignment addressing those very rules in the
context of Marinello’s actions.
That no other student had to complete this academic assignment
is of no moment, because no other student found himself in
Marinello’s situation. The dean apparently believed that, having
been placed on disciplinary probation for an ethics violation,
Marinello needed to exhibit an understanding of the ethics rules
before continuing his education. The assigned academic exercise
assigned was designed to accomplish just that.
We never before have found a student possesses a First
Amendment right to refuse an academic assignment, and we decline to
do so now. Summary judgment was appropriate.
B.
We review a j.m.l. de novo. See Freeman v. County of Bexar,
142 F.3d 848, 850 (5th Cir. 1998); Hidden Oaks Ltd. v. City of
Austin, 138 F.3d 1036, 1042 (5th Cir. 1998). “[W]e apply the same
standard as the district court, considering all evidence with all
reasonable inferences in the light most favorable to the non-moving
party.” Id. “We affirm if the facts and inferences point so
strongly and overwhelmingly in favor of one party that no
reasonable juror could arrive at a verdict contrary to the district
7
court’s conclusion. We reverse if we find substantial evidence
upon which reasonable jurors might reach different conclusions.”
Id. (quotations omitted).
To prevail on his claim that the CVM denied him admission to
his fourth year in retaliation for the exercise of his right to
free speech, Marinello must establish that (1) the grade appeal
letter constitutes protected speech and (2) the protected speech
was a substantial or motivating factor in the decision to deny his
application for admission.5 While we are inclined to agree with
the district court that Marinello failed to establish that the
letter constitutes protected speech,6 we instead affirm on the
basis of the court’s finding that Marinello failed to establish the
second prong.
Indeed, Marinello utterly has failed to proffer evidence to
allow a jury to conclude that his speech was a substantial or
motivating factor in the decision to deny him admission to the
fourth phase. Because he failed to establish a prima facie case,
the court properly granted j.m.l.
5
See Brady v. Houston Indep. Sch. Dist., 113 F.3d 1419, 1423 (5th Cir. 1997);
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.), cert. denied, 118 S. Ct. 603
(1997); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
283-87 (1977).
6
Marinello complains that the district court improperly shifted the burden
of proving the truth of the letter’s content. The plaintiff, however, bears the
burden of proving, by a preponderance of the evidence, every element of the cause
of action.
The first element is that the letter constitutes protected speech. If the
letter contains statements Marinello knew were false or made with a reckless
disregard for their truth, the letter is not protected speech. Therefore,
Marinello must come forward with at least some evidence that the speech does not
contain knowingly false statements or statements made with a reckless disregard
for the truth. See Libra v. City of Litchfield, 893 F. Supp. 1370 (C.D. Ill.
1995).
8
The record is devoid of any direct evidence that the
statements in the letter were a factor in the decision not to admit
Marinello to the fourth phase. Indeed, Marinello did not even
assert as much in his direct examination. To the contrary, aside
from an inference that could be drawn from one colloquy between
Marinello and counsel, all the evidence substantiates quite a
different conclusion: The CVM did not admit Marinello to the
fourth phase because he had failed to comply with an explicit
prerequisite to admissionSSto write a synopsis of the Principles of
Veterinary Medicine, apply them to his letter, and meet with the
dean to discuss them.
The only evidence that Marinello’s letter was a substantial or
motivating factor in the decision not to readmit him comes from his
direct examination, in which Marinello attempted to establish that
he met the requirements by a paragraph in a letter written after a
reminder that he had not completed the assignment and by a brief
discussion with Dr. Nelson, who met with Marinello on the dean’s
behalf. The inference could be drawn that, because Marinello had
met the requirements of the assignment, the CVM denied him
admission in retaliation for his speech.
But Marinello testified on cross-examination that at the
alleged meeting he declined to offer the letter as the required
synopsis. Furthermore, he later was asked, “you did not get it
completed, right, the assignment?” Marinello responded, “No, sir,
9
I did not.”7 Even if we consider the letter sufficient to meet the
synopsis requirement, however, Marinello refused to discuss it with
Nelson when offered the opportunity, thus failing to satisfy the
final requirement of the assignment.
All other evidence suggests Marinello was denied admission to
his fourth year for failing to comply with the requirements of the
assignment. This was the reason offered by the dean in his cross-
examination and is the reason apparent on the face of the letters
exchanged between Bushby and Marinello in the spring of 1995, when
he was denied admission.
Indeed, these letters negate the inference that Marinello was
denied admissions despite his putative meeting of the requirements.
As was brought out in his cross-examination, the May 9 letter
informed him that he had been denied admission for failing to
complete the assignment. It was his response on May 15 that
contained the paragraphs he attempted to characterize as a synopsis
during litigationSSa response coming six days after he had already
been denied admission to the fourth phase.
Finally, the record shows that the school could have expelled
him for violating the ethical rules, which the APSSC found he had
done. Had the school truly intended to retaliate against Marinello
for his speech, the dean would not have given him the opportunity
to apply to the fourth phase if he had met the explicit
7
On direct, Marinello was asked, “is this the letter that ultimatelySS
that the dean required you to write a synopsis about and that you were ultimately
exposed [sic] when you didn’t comply with that requirement? Is that the letter?”
He responded, “I believe so, yes.”
10
requirements of the assignment. If they truly wanted to retaliate
by keeping him out of the CVM, Bushby and the dean would not have
reminded Marinello of the assignment and provided numerous
opportunities to comply. Indeed, even the May 9 letter informing
him that he would not be admitted to the fourth phase, and the
May 16 letter reiterating that the failure to comply with the
assignment was the ground for that decision, provided him with the
opportunity to complete the assignment and apply for admission to
the fourth phase. Because Marinello failed to establish a prima
facie case, j.m.l. was appropriate.8
AFFIRMED.
8
In reaching this conclusion, we necessarily reject the argument that the
letter remains a substantial factor in the retaliation because the assignment
resulted from Marinello's writing the letter. Having found that the assignment
did not violate Marinello’s constitutional rights, and that no jury could find
that the school retaliated for the letter per se, we decline to conclude that the
letter motivated the retaliation nonetheless because the assignment would not
have been given but for the letter. Such a conclusion would take too attenuated
a view of the letter’s impact. By failing to show proximate causation, Marinello
failed to offer substantial evidence that the letter was a substantial or
motivating factor for the retaliation itself.
11