Bishop v. Aronov

926 F.2d 1066, 1991 WL 23706
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 15, 1991
DocketNo. 90-7230
StatusPublished
Cited by55 cases

This text of 926 F.2d 1066 (Bishop v. Aronov) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bishop v. Aronov, 926 F.2d 1066, 1991 WL 23706 (11th Cir. 1991).

Opinion

FLOYD R. GIBSON, Senior Circuit Judge:

The University of Alabama through its Board of Trustees (the “University”) appeals the district court’s summary judgment and other orders in favor of Assistant [1068]*1068Professor Phillip A. Bishop (“Dr. Bishop”) enjoining the University from curtailing his speech and religion rights in certain respects.1 We conclude that the action taken by the University did not transgress constitutional guarantees and proscriptions, and we now reverse.

I. BACKGROUND

Our review of the record reveals that a completely independent statement of the facts would not be useful. We do not disagree with the district court as to any facts, though our views diverge as to the controlling legal principles and the conclusions to be drawn from them. These questions of law we take up presently by a de novo review of the interplay between the facts and law. See Jones v. Heyman, 888 F.2d 1328, 1330-31 (11th Cir.1989) (per cu-riam) (citations omitted). First, we largely adopt the district court’s statement of the facts, quoting freely therefrom and supplementing it as necessary.

Phillip A. Bishop has been employed as assistant professor in the Area of Health, Physical Education, and Recreation [HPER], in the College of Education at the University of Alabama and Director of its Human Performance Laboratory since 1984. He teaches exercise physiology, his specialty, to graduate and undergraduate students and supervises research problems and theses.
During the fall of 1984 through the spring of 1987 Dr. Bishop occasionally referred to his religious beliefs during instructional time, remarks which he prefaced as personal “bias.” Some of his references concerned his understanding of the creative force behind human physiology. Other statements involved brief explanations of a philosophical approach to problems and advice to students on coping with academic stresses. In response to students’ questions concerning academic research, publishing, tenure, or promotion, Bishop has suggested to the students that his religious beliefs are more important than academic production, and this perspective allows him to better cope with academic stresses. He never engaged in prayer, read passages from the Bible, handed out religious tracts, or arranged for guest speakers to lecture on a religious topic during instructional time.

Bishop, 732 F.Supp. at 1563.

There are no transcriptions of Dr. Bishop’s actual in-class comments. However, attached to his summary judgment motion is an affidavit wherein he affords us an approximation of his remarks.

The statement [I made to the class] was generally something like the following:

After giving it considerable thought, I have decided for myself when I die, I would like to leave behind something more important and valuable than a stack of technical papers. I think that people are important and eternal, paper is neither. I want to invest my time mainly in people. I personally believe God came to earth in the form of Jesus Christ and he has something to tell us about life which is crucial to success and happiness. Now this is simply my personal belief, understand, and I try to model my life after Christ, who was concerned with people, and I feel that is the wisest thing I can do. You need to recognize as my students that this is my bias and it colors everything I say and do. If that is not your bias, that is fine. You need, however to, filter everything I say with that (Christian bias) filter. If you observe something in my life that is inconsistent with Christianity, please let me know, because, I believe that it is much more important than a pile of papers.

Affidavit of Phillip A. Bishop at 2, attachment to Plaintiff’s Motion for Summary Judgment, Record on Appeal, Vol. 2, Doc. 40 (Hereinafter “Bishop Affidavit”).

In April 1987 Bishop organized an after-class meeting for his students and
[1069]*1069other interested persons wherein he lectured on and discussed “Evidences of God in Human Physiology.” Discussion covered various aspects of the human body including the complexity of its design and operation, concluding that man was created by God and was not the by-product of evolution. The class was attended by five Bishop students and one professor.
[The University] contend[s] that the timing of the class before final exams created the possibility of a coercive effect upon his students, a situation which the Establishment Clause of the Constitution is designed to prohibit. Attendance at the class, however, was voluntary and did not affect grades. Bishop used a blind grading system.
Some of Bishop’s students in the 1986-87 classes complained about [Bishop’s in-class] comments and the after-class meeting to [Carl] Westerfield [Bishop’s supervisor and Head of HPER]. In late August or early September 1987 Wester-field met with the Dean of the College of Education, Rodney Roth, to discuss the complaints. After deciding Bishop’s statements were inappropriate, they met with University counsel September 11, 1987.

Bishop, 732 F.Supp. at 1564.

Westerfield prepared a memorandum to “Dr. Phil Bishop” concerning his conduct. The memo regards “Religious Activities in a Public Institution” and reads as follows:

Foremost, I want to reaffirm our commitment to your right of academic freedom and freedom of religious belief. This communication should not be construed as an attempt to interfere with or suppress your freedoms. From discourse with you and others, I feel that certain actions on your behalf are unwarranted at a public institution such as The University of Alabama and should cease. Among those actions that should be discontinued are: 1) the interjection of religious beliefs and/or preferences during instructional time periods and 2) the optional classes where a “Christian Perspective” of an academic topic is delivered. I must also remind you that religious beliefs and/or the strength of a belief can not be utilized in the decisions concerning the recruitment, admission or retention of graduate students.

Record Excerpt at 15.2 (Hereinafter the “memo.”) The tenor of this document demonstrates the first amendment tight rope upon which the University found itself perched. Without unnecessarily restricting the academic freedom of a faculty member, the University endeavored to avoid both Establishment Clause violations and undue pressure upon students. The University’s counsel believed that under Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (excessive entanglement between government and religion), Dr. Bishop’s activities did amount to such violations, thus the University refused the professor’s later requests to rescind the Wes-terfield order. In the interim, Dr. Bishop apparently complied with the University’s wishes.

In May 1988 Bishop [through letter of his counsel] petitioned the President of the University to rescind the order.

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Bluebook (online)
926 F.2d 1066, 1991 WL 23706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishop-v-aronov-ca11-1991.