dissenting.
I respectfully dissent.1
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. In finding that the defendants are entitled to qualified immunity, the majority opinion tells us that a college professor can be fired summarily for engaging in a classroom discussion with students when it reaches a topic that some college administrator either beheves is in violation of a pohcy on sexual harassment, that is, upon examination, overbroad and vague, or deems to be beyond the “reasonable bounds of discourse,” Majority Opinion at 466. Today the loser is a college teacher in a conservative academic setting who used an “alternative” teaching technique with profane effect. In the future, the major losers are hkely to be “traditionalist” and unconventional college teachers, whose method or speech is found offensive by those who usually dominate our institutions of higher learning.2 The First Amendment, with its “special concern” for academic freedom, Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), must protect all eol-*472lege teachers, especially in the performance of their most important duty-teaching in the classroom.
My colleagues assert that they do not adjudicate “the lawfulness of Vega’s discharge” because they “are ruling only that college administrators, based on the state of the law when the discharge occurred in 1994, are protected by qualified immunity from personal liability for damages.” Majority Opinion at 471 n. 13. It is, however, precisely the majority’s view of the First Amendment that serves as the basis for its conclusion that the defendants are entitled to qualified immunity. Although “the lawfulness of Vega’s discharge” is not specifically decided, the majority opinion does state its interpretation of the law, at least as it was in 1994, and by inference, as it may still be. I dissent because I disagree with the majority’s interpretation of the law, as it was in 1994, and as it is today.
I
From the start, the majority opinion fundamentally misapprehends Vega’s two First Amendment claims. Vega’s first claim is grounded in the First Amendment’s prohibition of vague and overbroad restrictions on speech. Vega claims that he was discharged pursuant to an over-broad and vague college policy on sexual harassment.3 Second Amended Complaint (filed June 26, 1998), ¶ 68. See Vega v. State Univ. of N.Y. Bd. of Trs., 67 F.Supp.2d 324, 341-342 (S.D.N.Y.1999). Vega’s second claim is grounded in the First Amendment’s protection of academic freedom. Second Amended Complaint, ¶72. See Vega v. State Univ. of N.Y. Bd. of Trs., 67 F.Supp.2d at 341. He argues that even if the policy is not void for overbreadth and vagueness, his right to academic freedom independently prevents the college from punishing him for his classroom speech — or, more precisely, for permitting certain speech by his students. These two claims are distinct.
Because the majority opinion finds that the defendants are entitled to qualified immunity with respect to Vega’s academic freedom claim and that Vega’s conduct is the basis “for which [the defendants] may terminate [Vega] without incurring damages liability,” Majority Opinion at 469, it “encounterfs] ... difficulty in understanding precisely what Vega contends [the overbreadth and vagueness] claim adds to his First Amendment academic freedom claim.” Majority Opinion at 468. For the majority, the inquiry ends once the defendants have shown that they are entitled to qualified immunity for their actions with respect to one claim. It does not matter to the majority whether Vega was fired because the defendants thought his conduct “exceeded the proper bounds of a teacher’s classroom conduct” or because they “thought that it violated the College’s sexual harassment policy.” Majority Opinion at 468-69. In either case, the majority concludes, the defendants could fire Vega because Vega’s conduct was not protected by principles of academic freedom rooted in the First Amendment.
The majority is incorrect. Vega claims that he was fired because school administrators decided that his actions violated the college’s policy on sexual harassment. *473Thus, a court considering Vega’s lawsuit must determine whether that policy violates the First Amendment’s prohibition of overbroad and vague speech restrictions. In these circumstances, the majority’s entire discussion on “dual motivation” is, in my view, misleading. Majority Opinion at 468-69. Vega has two independent First Amendment claims against the college.4 Because the college’s actions with respect to each of the claims were objectively unreasonable in light of clearly established law, see Ford v. Moore, 237 F.3d 156, 162 (2d Cir.2001), the District Court properly denied the defendants qualified immunity and left open the possibility of a trial to determine issues of fact.
II
It has long been clearly established law that overbroad and vague policies restricting speech on state university campuses violate the First Amendment. Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 604, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); see also UWM Post, Inc. v. Bd. of Regents of the Univ. of Wisc. Sys., 774 F.Supp. 1163, 1178-1181 (E.D.Wis.1991); Doe v. Univ. of Mich., 721 F.Supp. 852, 861-867 (E.D.Mich.1989). In Keyishian, a law prohibited the employment in a university of anyone who “by word of mouth or writing willfully and deliberately advocates, advises or teaches the doctrine of forceful overthrow of the government.” Keyishian, 385 U.S. at 599, 87 S.Ct. 675. The Supreme Court found the law unconstitutional because it was “wholly lacking in terms susceptible of objective measurement” and had “the quality of extraordinary ambiguity” such that “[m]en of common intelligence must necessarily guess at its meaning and differ as to its application.” Id. at 604, 87 S.Ct. 675.
Vega claims, and the defendants do not dispute, that he was fired pursuant to the college’s policy on sexual harassment, which Vega argues is as overbroad and vague as the restriction in Keyishian. Second Amended Complaint, ¶ 68. See Vega v. State Univ. of N.Y. Bd. of Trs., 67 F.Supp.2d 324, 341-342 (S.D.N.Y.1999). To determine whether a particular policy is overbroad in violation of the First Amendment, we must first decide whether it “reaches a substantial amount of constitutionally protected conduct,” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), or protected speech “judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); see United States v. Rahman, 189 F.3d 88, 115 (2d Cir.1999).
The college’s policy on sexual harassment at issue here was presented in the January 1994 edition of the SUNT Maritime College Employee Handbook (eight months before Vega was fired). It is rather brief. Here is the full text of that policy:
EVERY EMPLOYEE is entitled to a work environment free from any form of discrimination on the basis of race, creed, color, religion, national origin or sex. Sexual harassment is one form of sex discrimination.
Sexual harassment is any unwanted verbal or physical sexual advance, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace, which is of*474fensive or objectionable to the recipient or which causes the recipient discomfort or humiliation, or which interferes with the recipient’s job performance.
It may include:
— verbal harassment or abuse
— subtle pressure for sexual activities
— unnecessary touching, patting, or pinching
— leering at a person’s body
— constant brushing against a person’s body
— demanding sexual favors accompanied by implied or overt threats concerning one’s job, performance evaluation, promotion, etc.
— physical assault
Any employee who believes he or she has been sexually harassed should contact:
1. The immediate department supervisor
2. The Director of Personnel
(emphasis added). See also Majority Opinion at 469 n. xJ. There is no reference to the possible consequences of a violation; to the person who has direct authority to apply the policy; or to the procedures by which any complaint might be resolved or decided.
By defining “sexual harassment” to include, in part, “sexually explicit derogatory statements” or “sexually discriminatory remarks,” this sweeping policy forbids a broad class of protected speech. Even limiting “harassment” to speech or conduct which is “offensive or objectionable to the recipient,” or causes the recipient to feel “discomfort or humiliation,” is inherently vague, dependent for its meaning on the unpredictable and varying sensibilities of different persons. Such a definition inevitably outlaws a substantial amount of protected speech. It is clear that “under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). The college’s policy proscribes speech based upon the listener’s subjective feeling of offense, and could thus render as prohibited harassment, in the view of an especially sensitive listener, nearly all speech related to sex. A straightforward application of the policy would allow, for example, the college to punish a student or professor who, in a classroom discussion on the roles of women and men in the military, makes broad generalized statements about the sexes that someone in the class finds discomforting or “offensive.” This silencing of discussion is especially troubling when it involves teachers in a university setting because when we “impose [a] straight jacket upon the intellectual leaders in our colleges and universities!, we] imperil the future of our Nation.” Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (plurality opinion).
A statute, regulation, or policy is imper-missibly vague when it does not allow a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); see Marchi v. Board of Cooperative Educ. Servs. of Albany, 173 F.3d 469, 480 (2d Cir.), cert. denied 528 U.S. 869, 120 S.Ct. 169, 145 L.Ed.2d 143 (1999). Whenever a “vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms.” Grayned, 408 U.S. at 109, 92 S.Ct. 2294 (alterations and internal quotation marks and citations omitted). The college’s policy is impermissibly vague on its face. Even if one interprets the policy *475to avoid reaching sexually discriminatory remarks protected under the First Amendment so as to avoid overbreadth, the terms of the policy do not indicate or warn where the boundary between permissible and impermissible speech might be. Limiting “sexually discriminatory” or “sexually derogatory” remarks to those perceived as “offensive,” “humiliat[ing],” “objectionable,” or “discomforting]” by another person does not provide any objective definition as to what such remarks might be and who, as a final matter, is to define them. Unavoidably, faculty and students alike are left to “guess at [the policy’s] meaning and differ as to its application.” Keyishian, 385 U.S. at 604, 87 S.Ct. 675.
Indeed, it is unclear whether a complaint must be lodged in order to activate the policy, or whether, as in this case, sanctions can be exacted by the administration on its own initiative without any complaint at all. “A vague law impermis-sibly delegates basic policy matters ... for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned, 408 U.S. at 108-109, 92 S.Ct. 2294. The college’s policy states that sexual harassment grievances may be filed by employees; however, it does not state whether, pursuant to the policy, the college may fire summarily a faculty member without being “afforded opportunity for some kind of a hearing.” Bd. of Regents v. Roth, 408 U.S. 564, 570 n. 7, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
Because the law prohibiting overbroad and vague policies that restrict speech in a classroom was clearly established at the time of Vega’s discharge, and the college policy on sexual harassment was by its terms both overbroad and vague, I would conclude that it was not objectively reasonable for the college to fire Vega pursuant to that policy. Any reasonably competent and well-informed college official, in so much as setting eyes on such a policy, could have recognized that the policy’s terms were so sweeping — startlingly sweeping in a context where, unlike a business or industrial setting, hierarchies are blurred and teachers perform their duties under the most general directions and virtually no supervision — that it would have violated not only Vega’s First Amendment rights, but also the college’s own policies on academic freedom.
The college’s policy on academic freedom provides in relevant part that “faculty members may, without limitation, discuss their own subject in the classroom; they may not, however, claim as their right the privilege of discussing in their classroom controversial matter which has no relation to their subject.” This college policy substantially tracks the language of the 1940 Statement of Principles on Academic Freedom and Tenure by the American Association of University Professors (AAUP), ACADEMIC FREEDOM AND TENURE 33 (Louis Joughin ed., 1969), an organization founded to promote and protect academic freedom in higher education.5 See WALTER P. METZGER, ACADEMIC FREEDOM IN THE AGE OF THE UNIVERSITY 194 (6th prtg. 1969) (Metzger, the preeminent student of the history of academic freedom in the United States, observes: “To examine the activities and achievements of the AAUP since its establishment is to view the main outlines of the *476problems of academic freedom in the twentieth century.”)- The AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure has been relied upon as persuasive authority by courts to shed light on, and to resolve, a wide range of cases related to academic freedom and tenure. See, e.g., Mayberry v. Dees, 663 F.2d 502, 513 (4th Cir.1981) (quoting from an AAUP report deemed “an authoritative source” on tenure, “[T]he [Association of American Colleges] and the AAUP were the framers of the 1940 Statement of Principles on Academic Freedom and Tenure, the fundamental document on the subject.”); Jimenez v. Almodovar, 650 F.2d 363, 368 (1st Cir.1981) (“American court decisions [on tenure] are consistent with the 1940 Statement of Principles on Academic Freedom and Tenure widely adopted by institutions of higher education and professional organizations of faculty members.”); Browzin v. Catholic Univ. of Am., 527 F.2d 843, 848 & n. 8 (D.C.Cir.1975) (“[The 1940 Statement] represents] widely shared norms within the academic community, having achieved acceptance by organizations which represent teachers as well as organizations which represent college administrators and governing boards.”); see generally Gray v. Bd. of Higher Educ., City of New York, 692 F.2d 901, 907 (2d Cir.1982) (“Certain AAUP policy statements have assisted the courts in the past in resolving a wide range of educational controversies, such as off-campus speech by professors.”); Adamian v. Jacobsen, 523 F.2d 929, 934 (9th Cir.1975). Since it was the students who uttered the sexually-explicit terms during a concededly legitimate ten-minute writing exercise in the classroom in 1994, no college administrator in 1994 reasonably could have concluded that Vega’s actions violated the college’s policy on sexual harassment or fell outside the protection of the policy on academic freedom. See Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (government officials are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
The majority’s reliance upon diLeo v. Greenfield, 541 F.2d 949 (2d Cir.1976), Majority Opinion at 469, to support the conclusion that the defendants’ actions were objectively reasonable given the state of the law at the time Vega was fired, is misplaced. In that case, we upheld a state statute allowing the discharge of a junior high school teacher “for other due and sufficient cause” and declined to find that the statute was unconstitutionally vague or overbroad.6 diLeo, 541 F.2d at 954. We held in diLeo that the teacher “had engaged in a persistent pattern of neglecting his professional duties and harassing and humiliating students.” Id. at 953. We reached this conclusion after observing that the teacher had met with, and been cautioned by, school administrators for his behavior several times before and that he reasonably knew that the behavior was the cause for the discharge. Id. Moreover, we *477limited the challenged provisions of the statute by construing its vague terms in light of the teaching-specific restrictions in the remainder of the statute and by concluding that “other due and sufficient cause” was limited only to conduct relating to a teacher’s professional duties. Id. at 954-55.
Indeed, on its facts, diLeo, a case decided more than two decades before the episode at issue here, should have alerted the defendants in Vega’s case that its actions were likely to violate Vega’s First Amendment rights. Unlike in diLeo, the college administrators here did not meet with Vega or caution him prior to firing him. Furthermore, the vague and overbroad college policy on sexual harassment at issue here is not susceptible to a limiting construction, as was the statute in diLeo, because there are no other specific terms to constrain the policy’s broad restrictions. The college policy on sexual harassment did not in its own terms limit its sweep to conduct outside the protection of the First Amendment.
The majority also relies on the decision of a panel of the Ninth Circuit in Cohen v. San Bernardino Valley Coll., 92 F.3d 968 (9th Cir.1996), for the notion that a court in 2001 can conclude that it was reasonable for school officials, in 1994, not to know that this policy on sexual harassment applied to a faculty member’s classroom work might violate the First Amendment. Majority Opinion at 469. See Cohen, 92 F.3d at 971 (“Neither the Supreme Court nor [the Ninth Circuit] has determined what scope of First Amendment protection is to be given a public college professor’s classroom speech”). I disagree. Although in determining whether a defendant is entitled to qualified immunity this Court must carefully define the scope of the right assertedly violated so that it would be “sufficiently clear that a reasonable official would understand that what he is doing violates that right,” Shechter v. Comptroller of the City of New York, 79 F.3d 265, 270-271 (2d Cir.1996), it has never been required that the right be defined so narrowly as to require precedent that is “on all fours” with the case at hand. Jeffries v. Harleston, 21 F.3d 1238, 1248 (2d Cir.), vacated on other grounds, 513 U.S. 996, 115 S.Ct. 502, 130 L.Ed.2d 411 (1994). Vague and overbroad speech codes in an academic setting, whether they seek to restrict ideas related to political affiliation, as in Keyishian, or speech related to sex, have long been understood to run afoul of the First Amendment. See UWM Post, Inc. v. Bd. of Regents of the Univ. of Wisc. Sys., 774 F.Supp. 1163 (E.D.Wis.1991); Doe v. Univ. of Mich., 721 F.Supp. 852 (E.D.Mich.1989). The defendants failed to realize that their sexual harassment policy was vague and overbroad because of their own inadequate training and judgment, not because the law on the subject was unclear.
On the facts presented by this plaintiff, the defendants’ decision to fire the plaintiff based on a vague and overbroad policy on sexual harassment was not objectively reasonable. Accordingly, the defendants were not entitled to qualified immunity on plaintiffs First Amendment claim of vagueness and overbreadth.
Ill
By 1990, this Court had “clearly established” that state universities and their administrators were not entitled to qualified immunity when they sanctioned a college professor “based on the content of his classroom discourse.” Dube v. State Univ. of N.Y., 900 F.2d 587, 598 (2d Cir.1990) (emphasis added). Such sanctions would violate “long-standing and clearly established First Amendment law.” Id. at 597. In Dube, a professor was denied tenure *478because university defendants disagreed with the views of his course, entitled “The Politics of Race,” which referred to Nazism, South African apartheid, and Zionism as forms of racism. The course spurred controversy on and off the campus. We concluded that retaliation against Dube based on his course teaching was “as a matter of law, objectively unreasonable.” Id. at 598 (emphasis in original). Relying upon principles articulated by the Supreme Court, we held that “it has been clearly established that the First Amendment tolerates neither laws nor other means of coercion ... ‘that cast a pall of orthodoxy’ over the free exchange of ideas in the classroom.” Id. at 598 (citing Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)).
The majority dismisses Dube on the ground that Vega’s “toleration” of the students’ “shouted vulgarities” was “far removed from Dube’s expression of his political views.” Majority Opinion at 467. In Dube, however, we did not condition First Amendment protection of academic freedom on the requirement that the speech in question itself be “political” in nature. Nor has the Supreme Court held that the protections of the First Amendment are limited solely to political speech. See Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties”); Universal City Studios, Inc. v. Corley, No. 00-9185, 2001 WL 1505495, at ”11 (2d Cir. Nov. 28, 2001) (Newman, J.); cf. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (prescription drug price information is “speech”). The majority concedes that Vega’s discussion in class was “initiated for legitimate pedagogical purposes.” Majority Opinion at 467. If the discussion was begun legitimately, then it cannot become illegitimate solely because it reaches content of which college administrators disapprove.7 See Mahoney v. Hankin, 593 F.Supp. 1171, 1174 (S.D.N.Y.1984) (political science professor stated a claim based on academic freedom when college attempted to restrict speech on “ ‘current controversial college matters’ which were curriculum-related.”); see also Kingsville Indep. Sch. Dist. v. Cooper, 611 F.2d 1109, 1111 (5th Cir.1980) (high school teacher’s discussions of slavery and post-Civil War Reconstruction protected by First Amendment despite school administrator’s order that “nothing controversial should be discussed in the classroom”); cf. Martin v. Parrish, 805 F.2d 583, 584 n. 2 (5th Cir.1986) (denying .professor’s claim based on academic freedom and holding that professor’s in-class condemnation of students’ attitude as “bullshit” was “not germane to the subject matter in his class and had no educational function”). To allow administrators the authority to censor the academic content of a class is to allow “a pall of orthodoxy” to enter into the classroom.8 Keyishian, 385 U.S. at 603, 87 S.Ct. 675.
*479The majority finds support for its decision in the fact that, in this case, students were “yelling” and two were “on chairs.” Majority Opinion at 468. Let us be clear: It was neither the volume nor the enthusiasm of the students that prompted Vega’s dismissal, but rather, in the words of Howard L. English, Jr., the Vice President of Academic Affairs who fired Vega, “[i]t was the subject matter and the words [in the classroom] that were elicited” (emphasis added). Deposition of Howard L. English, Jr., April 20, 2000, at 267. It is precisely this admitted censoring of the subject matter of a class discussion that violated Vega’s clearly-established First Amendment right to academic freedom.
This right surely has its bounds, but, on the facts before us, Vega did not exceed them. We have held that a school teacher’s academic freedom in the classroom is limited to actions that are “reasonably related to legitimate pedagogical concerns.” Silano v. Sag Harbor Bd. of Educ., 42 F.3d 719, 723 (2d Cir.1994) (quoting Hazelwood v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)). Whether a teacher’s action is “reasonably related to legitimate pedagogical concerns” depends in part upon (1) “the age and sophistication of the students,” (2) “the relationship between teaching method and valid educational objective,” and (3) “the context and manner of the presentation.” Id. See also Ward v. Hickey, 996 F.2d 448, 452 (1st Cir.1993); Mailloux v. Kiley, 448 F.2d 1242 (1st Cir.1971) (per curiam); Silva v. Univ. of N.H., 888 F.Supp. 293 (D.N.H.1994). Applying these principles in Silano, we found no protection under the First Amendment for a high school teacher who showed a picture of two topless women to a mathematics class to illustrate a lesson on the phenomenon of “persistence of vision.” Silano, 42 F.3d at 724.
Applying the same three principles in Vega’s case should lead to the conclusion that his activity is protected. First, Vega was teaching a class to students who were of college-age maturity, and “we cannot think [that the sexually-explicit terms were] unknown to many students,” Keefe v. Geanakos, 418 F.2d 359, 361 (1st Cir.1969) (holding that a high school English teacher’s discussion of the etymological origins of the word “motherfucker” was protected by First Amendment right to academic freedom). Indeed, it was the students themselves, not Vega, who offered the sexually-explicit terms for consideration.
Second, there is no dispute in this case as to whether Vega’s pedagogical method was “legitimate” within the meaning of the case law; the majority concedes that the “clustering” technique used by Vega in the classroom at issue here was “initiated for legitimate pedagogical purposes.”9 Majority Opinion at 467.
*480Third, the context and manner of the writing exercise show that Vega did nothing to forfeit the protection of the First Amendment. In this case, the clustering exercise occurred during the last ten minutes of a single one-hour-and-ten-minute class. Vega allowed the students to choose the subject matter for “brainstorming.” When the students chose the subject of sex, Vega expanded and tempered it to “sex and relationships.” Students began the exercise by calling out non-sexually-explicit terms such as “marriage” and “children,” and Vega wrote these on the blackboard. A small number of students then called out sexually-explieit terms. Vega neither encouraged nor actively participated in suggesting those terms. Although he did not immediately end the exercise once students began to use vulgarities, he abbreviated a number of these sexually-explieit terms when writing them on the blackboard. Other sexually-explieit terms he simply did not write. The parties agree that at the end of the exercise he counseled the students against using such terms and expressed disapproval. No student, before, during, or after the exercise, complained. The defendants do not dispute these facts. Defendants Reply Brief at 22 (“[T]he State Defendants have taken as true Vega’s version of events for purposes of this appeal.”).
In sum, the simple fact that sexually-explieit terms were used by students in a ten-minute classroom exercise is not sufficient to show that Vega exceeded the clearly-established bounds of academic freedom protected by the First Amendment.
Considering all of these factors, and taking plaintiffs version of the facts as we are required to do at this stage of the case, see Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.1996), it was objectively unreasonable for the defendants to fire Vega based on the ten-minute clustering exercise. A college teacher’s First Amendment right to academic freedom in the classroom was clearly established at the time of Vega’s dismissal, and Vega’s actions were clearly within the scope of that right.
Accordingly, the defendants are not entitled to qualified immunity on Vega’s claim that he was fired in violation of the First Amendment.
‡ ‡ ‡ ‡ $
In sum, because the law with respect to plaintiffs claims based on infringement of academic freedom and on the unconstitutionally vague and overbroad policy on sexual harassment was clearly established as of 1994, when Vega was fired summarily by college administrators, and because, based on plaintiffs version of the facts, the defendants’ actions were objectively unreasonable, I dissent from the reversal of the District Court’s order denying qualified immunity to the defendants.
. I concur in the majority’s jurisdictional holding at 465-66 and in its disposition of plaintiff’s "stigma-plus” claim at 469-71.
. The need to protect academic freedom on our college campuses is especially evident in the account of disheartening developments in the recent past given by Alan Charles Kors and Harvey A. Silverglate, commentators from both ends of the political spectrum, in THE SHADOW UNIVERSITY (1998). See also DAVID BROMWICH, POLITICS BY OTHER MEANS (1992) (describing the politicization of higher education).
. The defendants' shifting claim that Vega was not discharged pursuant to the policy but because of other concerns is irrelevant for purposes of this appeal. If Vega was discharged on account of the policy — which is part of Vega's complaint, see Second Amended Complaint, ¶ 59, 60 — then he can challenge the discharge on grounds of overbreadth and vagueness as well as academic freedom. If at trial it were proved that he had not been discharged because of the policy, then he would have to rely solely on his First Amendment right to academic freedom.
. There is no doubt that the defendants, persons acting in their official capacity as state college administrators, are part of a university system (the State University of New York) that is a state-actor for purposes of this litigation and subject to the First Amendment. See Dube v. State University of New York, 900 F.2d 587, 594 (2d Cir.1990).
. The 1940 Statement, in relevant part, provides
(b) The teacher is entitled to freedom in the classroom in discussing his subject, but he should be careful not to introduce into his teaching controversial matter which has no relation to his subject.
See 1940 Statement of Principles in Academic Freedom and Tenure, Academic Freedom and Tenure 36 (Louis Joughin ed., 1969).
. The statute at issue in diLeo, CONN. GEN. STAT. § 10-151(b), provided, in relevant part, that a tenured teacher could only be fired after a hearing in which the Board of Education had to prove that the teacher had demonstrated:
(1) inefficiency or incompetence;
(2) insubordination against reasonable rules of the board of education;
(3) moral misconduct;
(4) disability, as shown by competent medical evidence;
(5) elimination of the position to which the teacher was appointed, if no other position exists to which he may be appointed if qualified; or
(6) other due and sufficient cause
. The defendants' action also seems to violate the college’s own academic freedom policy, which guarantees to all faculty that they "may, without limitation, discuss their own subject in the classroom,” as well as the AAUP's 1940 Statement of Principles on Academic Freedom and Tenure. See ante at 475.
. The fact that Vega is an untenured teacher does not affect the scope of the First Amend-merit's protection of academic freedom in the classroom. See Perry v. Sindermann, 408 U.S. 593, 597-598, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (concluding that "respondent’s lack of a contractual or tenure 'right' to re-employment ... is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the nonrenewal of a nontenured public school teacher's one-year contract may not be predicated on his exer*479cise of First and Fourteenth Amendment rights” and citing Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) and Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). In Dube, we denied qualified immunity to university defendants based on their objectively unreasonable action against Dube without regard to the fact that Dube himself was an untenured college teacher. Dube, 900 F.2d at 599; see also Ward v. Hickey, 996 F.2d 448 (1st Cir.1993) (nontenured teacher). It is true, of course, that tenure is an important means of securing academic freedom for college teachers. See Howard Mumford Jones, The American Concept of Academic Freedom, in ACADEMIC FREEDOM AND TENURE 231 (Louis Jough-in ed., 1969) ("Tenure ... is the bulwark of academic freedom”). The importance, however, of tenure to the academic profession's goal of securing protection for academic speech does not suggest or support the proposition that the First Amendment protects only those with tenure.
. The controversial teaching technique of “clustering” is essentially a "brainstorming” writing exercise in which students choose a writing subject, select words or concepts that *480relate to that subject, and use these words to frame a topic. Deposition of Edward Vega, May 16, 2000, at 58-59. The teacher who leads this exercise refines the answers the students provide as the exercise continues. Reply Affidavit of Ian S. MacNiven, at ¶ 4, 5. This pedagogical technique has no appeal to me, and it may have little appeal to others, but for purposes of this lawsuit it has been conceded to be "legitimate.”