Edward Vega v. Floyd H. Miller, James C. Desimone, Howard L. English, Carolyn D. Jones, and G. Peter Cooney

273 F.3d 460, 18 I.E.R. Cas. (BNA) 163, 2001 U.S. App. LEXIS 25364, 82 Empl. Prac. Dec. (CCH) 40,998, 2001 WL 1518273

• Court: Court of Appeals for the Second Circuit
• Decided: November 29, 2001
• Docket: Docket 00-9214
• Status: Published

Opinions

Judge JOSÉ A. CABRANES dissents in a separate opinion.

JON 0. NEWMAN, Circuit Judge.

This appeal concerns the availability of a qualified immunity defense for five administrators at the New York Maritime College (“College”) who discharged a nontenured teacher for leading a classroom “word association” exercise. The administrators concluded that the teacher had acted unprofessionally when he failed to ter-mínate the exercise in which students, some standing on chairs, shouted out vulgar, sexually explicit terms, many of which the teacher wrote down, in words or initials, on a blackboard. The administrators appeal from the September 11, 2000, order of the District Court for the Southern District of New York (Denise L. Cote, District Judge) denying their motion for summary judgment on the ground of qualified immunity. Without deciding whether the discharge of the Plaintiff, Professor Edward Vega, might have entitled him to any relief from the College that would not encounter Eleventh Amendment obstacles,¹ we conclude that qualified immunity shields the administrators from any obligation to pay Vega any money damages. We therefore reverse and remand with directions to dismiss.

Background

The College is a state-run co-educational institution that aims to prepare its students — or as the College calls them, “cadets” — for service as engineers or officers in various branches of the armed services. It requires its students to demonstrate “[rjespect for others” and “regimental discipline at all times.” Plaintiff-Appellee Edward Vega began teaching at the College in August 1993. He was a non-tenure-track professor, and could be terminated at will.

In the summer of 1994, Vega taught a six-week composition course at the College’s Summer Institute, a program designed for pre-freshmen who need remedial courses prior to matriculation. The students were male and female, aged 17 and 18. On July 21, Vega conducted a free-association exercise called “clustering,” in which students were invited to select a topic, then call out words related to the topic, and finally group related words together into “clusters.” According to Vega, the exercise is intended to help students reduce the use of repetitive words in college-level essays.

The students selected “sex” as the topic for the “clustering” exercise. Vega understood the topic to be “sex and relationships.” Vega then invited the students to call out words or phrases related to the topic, and he wrote at least many of their responses on the blackboard. The first words called out were, as Vega described them, “very safe words,” such as “marriage,” “children,” and “wedding ring.” As the exercise continued, the words called out included “penis,” “vagina,” “fellatio,” and “cunnilingus.” Toward the end of the exercise, with all but one of the students yelling and two standing on chairs, the following words and phrases were called out: “cluster fuck,” “slamhole,” “bearded clam,” “fist fucking,” “studded rubbers,” “your [sic] so hard,” and “eating girls out.”²

Vega wrote many of the words on the blackboard, but said that he used initials for “some of the words that [Admiral] Floyd Miller [President of Maritime College] found to be disgusting examples of sexual harassment,” and “some I didn’t even abbreviate.” At no point in the session did Vega seek to curtail the vulgarity of what the students were yelling, or terminate the exercise. He contends that after the exercise he “cautioned [the] students that such terms would alienate their readers and should not be used at all or used rarely and then only where it was essential to enlighten and persuade the reader.” Complaint ¶ 17.

None of the students or their parents ever complained about the exercise. It came to the attention of the College administrators in the course of investigating a complaint by a student on another matter.

When the College administrators became aware of the clustering exercise, Admiral Miller asked Dr. Howard L. English, Vice-President of Academic Affairs, to meet with Vega. English and Dean of Admissions G. Peter Cooney confronted Vega on August 17. Vega handed English copies of his lesson plans, which included many provocative topics.³ English explained that he and Miller found the clustering exercise inappropriate, and that it opened the door to bad publicity and possible sexual harassment complaints. English told Vega that they would not offer him reappointment for the upcoming school year.

English officially terminated Vega’s contract by correspondence dated August 18, 1994. English drafted a memorandum to the file that explained Vega’s firing, attributing it to Vega’s “reliance on sex as a theme” and “use of sexually explicit vocabulary” in the clustering exercise. English claims that he also wrote a very brief memo (without an explanation for the firing) for Vega’s personnel file.⁴

Miller met with Vega on August 24 to review the decision. Miller called Vega’s conduct “vile,” “vulgar,” “pornographic,” and “irresponsible,” and told Vega that it could be considered sexual harassment, and could create liability for the college. Miller ratified English’s termination of Vega. Both English and Miller acknowledge that the sole reason they decided to fire Vega was because of his conduct in the July 21,1994, clustering exercise.

On August 3, 1997, Vega filed a suit in the District Court, alleging numerous causes of action against several administrators and various school entities. Over the next several months, Judge Cote dismissed the complaint in its entirety against many of the Defendants, and dismissed some of the claims against the remaining Defendants. However, she denied motions to dismiss three of the claims against five of the Defendants, Appellants on this appeal. They are Admiral Miller, Vice-President English, Dean Cooney, James C. DeSimone, Commandant of Cadets, and Carolyn D. Jones, Director of the Summer Institute.

The remaining claims are all brought under 42 U.S.C. § 1983. They allege that the decision not to reappoint Vega (1) violated his First Amendment right to academic freedom (the “academic freedom claim”), (2) was made pursuant to an unconstitutionally vague or overbroad sexual harassment policy (the “sexual harassment policy claim”), and (3) infringed his Fourteenth Amendment due process right to a hearing prior to governmental adverse employment action that sullies his good name and reputation (the “stigma-plus claim”).

The Defendants first filed a motion to dismiss on November 10, 1997, arguing, among other things, that they were entitled to qualified immunity on the ground that the law concerning Vega’s claims was not clearly established in 1994. Judge Cote denied this motion, ruling that the law as to both the academic freedom claim and the stigma-plus claim was clearly established in 1994, and that the question of whether the Defendants’ sexual harassment policy was unconstitutionally vague or overbroad was a “fact intensive one that cannot be resolved on a motion to dismiss.” Vega v. State University of New York Board of Trustees, 67 F.Supp.2d 324, 342 (S.D.N.Y.1999). The Defendants did not appeal this decision.

After the close of discovery, the Defendants moved for summary judgment, arguing that there was insufficient evidence to support the Plaintiffs claims and that they were protected against claims for money damages by qualified immunity. On Sept. 7, 2000, Judge Cote denied the summary judgment motion from the bench. On the “academic freedom” claim, she ruled that an issue of fact remained as to the relationship between “clustering” and Vega’s educational objective and as to the “context and manner” of the classroom exercise. On the “sexual harassment policy” claim, she ruled that there was a factual issue as to whether Vega was terminated pursuant to the policy, that she could not rule as a matter of law that the policy was not unconstitutionally vague or overbroad, and that qualified immunity was not available on this claim because cases such as Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), and Dube v. State University of New York, 900 F.2d 587 (2d Cir.1990), “clearly establish Vega’s right to be free from enforcement of a [College] policy that constitutes on its face or as applied a vague or over-broad restriction on classroom speech.” She distinguished a Ninth Circuit case that had afforded qualified immunity to defendants in similar circumstances, Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir.1996), because the policy in that case was “different and narrower” than the one at issue here. Judge Cote also found fact questions as to Vega’s stigma-plus claim: whether stigmatizing statements were made “in the course of Vega’s termination” and whether the statements were publicized.

Discussion

I. Appellate Jurisdiction

Acknowledging that the denial of a qualified immunity defense is subject to an interlocutory appeal when the appeal can be decided as a matter of law, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), Vega nonetheless contends that the Defendants are barred from filing the present appeal from the September 2000 ruling denying their motion for summary judgment based on qualified immunity because they did not appeal the September 1999 ruling denying their earlier Rule 12(b)(6) motion to dismiss on the basis of qualified immunity. Vega maintains that the pending appeal, if permitted, would amount to an end-run around the 30-day time requirement in Rule 4 of the Federal Rules of Appellate Procedure, since a defendant who was late in appealing from a Rule 12(b)(6) denial could theoretically obtain a new 30-day clock simply by filing another motion for qualified immunity.

There are three possible approaches to the availability of an interlocutory appeal from a trial court’s second denial of a motion asserting an immunity defense: a defendant could be permitted to appeal the second denial (a) only if he did not appeal the first denial, (b) only if he did appeal the first denial, or (c) regardless of whether he appealed the first denial.

If the motion that results in the second denial is virtually a reprise of the motion that was denied the first time, there is a substantial argument for dismissing the appeal of the second motion as an evasion of the appellate timeliness requirement. See Armstrong v. Texas State Board of Barber Examiners, 30 F.3d 643, 644 (5th Cir.1994) (appeal from denial of second qualified immunity motion dismissed where “the two motions are substantially the same”); Taylor v. Carter, 960 F.2d 763, 764 (8th Cir.1992) (same).

However, the Supreme Court has ruled that an appeal will lie from a rejection of qualified immunity on a motion for summary judgment, notwithstanding a previous unsuccessful appeal from a rejection of the defense on a motion to dismiss at the pleading stage. Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The Court rejected the arguments that one “judiciously timed” appeal — either at the motion to dismiss stage or at summary judgment — is sufficient and that the availability of multiple appeals will simply delay the proceedings. The Court reasoned that multiple appeals will often be necessary due to the different posture of the case at the pleading stage and at summary judgment, and that if necessary, “[i]t is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims.” Id. at 309-10,116 S.Ct. 834.

Behrens makes clear that an appeal is available from denials of an immunity defense at both the pleading and summary judgment stages, and nothing in that decision suggests that a defendant is required to appeal an initial denial at the pleading stage in order to appeal a subsequent denial on summary judgment. Such an approach would precipitate many needless appeals. See Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir.1996) (declining to adopt “rule that would dramatically increase the number of interlocutory appeals at the dismissal stage”). Moreover, even the dissenters in Behrens, who favored permitting only one appeal, noted that a defendant could decline to appeal from a denial of their defense at the pleading stage and appeal the subsequent denial at the summary judgment stage. See Behrens, 516 U.S. at 323, 116 S.Ct. 834 (Breyer, J., with whom Stevens, J., joins, dissenting).

In the pending case, even though there is some overlap between the contentions made in the Defendants’ first and second assertions of the qualified immunity defense, the second motion differs from the first in that it relies on matters developed during discovery. The denial of that motion is appealable, notwithstanding the absence of an appeal at the pleading stage. See Grant, 98 F.3d at 120.

II. Qualified Immunity

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.’ ” Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The qualified immunity defense requires consideration of the clarity of the law establishing the right allegedly violated and whether a reasonable person, acting under the circumstances then confronting a defendant, would have understood that the applicable law was being violated. These inquiries combine to form a standard that the Supreme Court has called “objective legal reasonableness,” Behrens, 516 U.S. at 306, 116 S.Ct. 834; Harlow, 457 U.S. at 819, 102 S.Ct. 2727, that is, whether it was objectively reasonable for a defendant to think that the challenged conduct did not violate the plaintiffs clearly established rights. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). We apply this standard to each of Vega’s claims, viewing the evidence at this stage from the standpoint of the Plaintiff. See Salim v. Proulx, 93 F.3d 86, 90-91 (2d Cir.1996).

Although Vega contends that there are numerous factual issues that preclude summary judgment on the issue of qualified immunity, we adjudicate this appeal on the basis of the facts that are either admitted by Vega, or presented by the Defendants in sworn affidavits or depositions and not contested by any opposing affidavit. The critical undisputed facts are the words and phrases called out by the students during the clustering exercise that Vega invited and permitted to continue.⁵

A. Academic Freedom Claim

It has been clear long before 1994, when the Defendants’ termination of Vega occurred, that neither teachers nor students “shed their constitutional rights to freedom of speech ... at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Although pre-1994 cases had outlined some guideposts concerning the free speech rights of a college professor to express his views in a classroom, see Dube v. State University of New York, 900 F.2d (2d Cir.1990), and the free speech rights of students to express their views, see Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the available authorities did not settle 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. The authority of educational administrators to take actions “reasonably related to legitimate pedagogical concerns,” id. at 273, 108 S.Ct. 562, leaves room for uncertainty. Two years after the action challenged in this case, the Ninth Circuit observed that “[n]either the Supreme Court nor this Circuit has determined what scope of First Amendment protection is to be given a public college professor’s classroom speech.” Cohen, 92 F.3d at 971.

In the pending case, a college teacher has been disciplined for permitting a classroom exercise, initiated for legitimate pedagogical purposes, to continue to the point and beyond where students are calling out a series of vulgar, sexually explicit words and phrases, many of which the professor writes on the blackboard, either in words or with initials. We must determine whether, in light of then-existing law, college administrators could reasonably believe that they were not violating the teacher’s First Amendment rights by disciplining him for such conduct.

Not surprisingly, no decision before 1994 (and none since) had clearly established that dismissal for conduct of the sort that Vega undisputedly took violated a teacher’s First Amendment rights. Although qualified immunity is not available simply because the precise conduct at issue has not been previously held unlawful, see Anderson, 483 U.S. at 640, 107 S.Ct. 3034, the available precedents that might usefully have guided the Defendants leave the unlawfulness of their action at least unclear. Dube, much relied on by the Plaintiff, upheld the right of a teacher, in a course on racism, to express the view that Zionism was a form of racism. See Dube, 900 F.2d at 589, 598. Protection was accorded despite the offensiveness of the teacher’s viewpoint to some students and some members of the community. Dube serves as a caution to governmental administrators not to discipline a college teacher for expressing controversial, even offensive, views lest a “pall of orthodoxy” inhibit the free exchange of ideas in the classroom. See Keyishian, 385 U.S. at 603, 87 S.Ct. 675. Vega’s toleration of the students’ shouted vulgarities was far removed from Dube’s expression of his political views.

Somewhat more pertinent is the decision of the First Circuit in Keefe v. Geanakos, 418 F.2d 359 (1st Cir.1969). A teacher was protected in assigning to a high school senior English class a scholarly article that used the word “mother-fucker” and explained its origin. See id. at 360-61. The teacher was careful to offer an alternate assignment to any student who found the assigned material offensive. See id. at 361. Keefe makes clear that a teacher may not be disciplined simply because a vulgar word is contained and discussed in assigned materials, at least for students of suitable age. A contrary decision would have left teachers vulnerable to discipline for assigning many well regarded literary works. However, the vulgarities Vega permitted to be called out in his classroom were not part of an etymological exploration, nor was the scene in which all of the students but one were yelling their contributions, with two standing on chairs, an academic discussion.

Particularly pertinent is our Circuit’s decision in Silano v. Sag Harbor Union Free School District Board, 42 F.3d 719 (2d Cir.1994), decided the same year as the episode at issue here.⁶ A teacher was denied protection because of the materials he included in a tenth-grade mathematics class for the purpose of illustrating what he called the “persistence of vision” phenomenon. See id. at 721. Of the six 35 mm. film clips he distributed to his students, one portrayed two woman naked above the waist. See id. We ruled that the school officials’ action in barring the teacher from the classroom was “reasonably related to legitimate pedagogical concerns.” Id. at 723. We pointed out that “[djepictions- of bare-chested women were entirely unnecessary to illustrate th[e] scientific phenomenon” that the teacher wished to explain. Id. Although Vega’s students were high school graduates in a pre-college program and thus two years beyond those in Sag Harbor, the students’ shouting of vulgarities was as unnecessary to his “clustering” exercise as Silano’s film clip was to his explanation of a scientific phenomenon.⁷

Since this episode occurred seven years ago and involves a highly unusual set of circumstances, unlikely to be repeated, we see no reason to rule definitively on whether the Defendants’ action 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. Even though no students complained, what students will silently endure is not the measure of what a college must tolerate or what administrators may reasonably think that a college need not tolerate.

B. Sexual Harassment Policy Claim

In considering the sexual harassment policy claim, we encounter an initial difficulty in understanding precisely what Vega contends this claim adds to his First Amendment academic freedom claim. He maintains, and there is no basis for any dispute, that he was terminated because of his conduct in permitting the clustering exercise to continue.⁸ Vega’s academic freedom claim asserts that the First Amendment prevented the Defendants from disciplining him for this conduct, and we have ruled above that, whether or not that claim is valid, the Defendants were objectively reasonable in believing that it did not. Since the Defendants have a qualified immunity defense from damages liability for a First Amendment academic freedom violation, it does not matter whether they not only thought that Vega’s conduct exceeded the proper bounds of a teacher’s classroom conduct but also thought that it violated the College’s sexual harassment policy. The conduct remains activity for which they may terminate him without incurring damages liability.

This is not a case of dual motivation in which a plaintiff contends that adverse action was taken for an impermissible reason, e.g., exercising First Amendment rights by providing information to a radio station, and the defendant contends that the action was taken for a different, permissible reason, e.g., using obscene gestures to correct students. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 281-83 & n. 1, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In such circumstances, if the evidence shows that the impermissible reason was a “motivating factor” of the adverse action, the defendant is liable unless it can show that it would have taken the adverse action in the absence of the impermissible reason. Id. at 287, 97 S.Ct. 568. But where, as here, there is only one conduct of the discharged employee that motivates the adverse action, and a defendant has qualified immunity for taking such action, the immunity is not lost even if the defendant thinks that this same conduct also provides an additional reason for the adverse action. To take an extreme example, if a teacher ordered a female student to disrobe in front of a class and was fired because the school administrator reasonably concluded that such conduct was not related to a legitimate pedagogical purpose, the administrator would not lose qualified immunity just because of an additional belief that the teacher’s conduct also violated the school’s sexual harassment policy, no matter how imper-missibly vague or overbroad that policy was.⁹

Even if Vega could show that it is relevant that the Defendants were partially motivated by the additional belief that his conduct violated the College’s sexual harassment policy, we are satisfied that it would have been objectively reasonable for them to believe in 1994 that enforcing the policy against Vega did not deny him any constitutional right.¹⁰ In 1996, two years after Vega’s termination, the Ninth Circuit held qualified immunity available to college administrators for disciplining a tenured professor for violating a sexual harassment policy that violated the First Amendment. Cohen, 92 F.3d at 973. “The legal issues raised in this case are not readily discernable and the appropriate conclusion to each is not so clear that the officials should have known that their actions violated [the professor’s] rights.” Id.; see also diLeo v. Greenfield, 541 F.2d 949, 953 (2d Cir.1976) (regulation permitting termination of teacher “for other due and sufficient cause” not unconstitutionally vague or overbroad as applied to teacher who made comments with sexual connotations to students). Moreover, in view of the vulgarities that Vega permitted to be expressed, no reasonable jury could fail to find that the Defendants would have terminated Vega solely because they considered his conduct beyond the bounds of proper classroom performance, even if the College had no sexual harassment policy.

C. Stigma-Plus Claim

Vega contends that he was denied a liberty interest without procedural due process, grounding his alleged interest on an allegation that the Defendants stigmatized him by making defamatory statements in the course of terminating his employment. The Supreme Court has made clear that the right to “notice and an opportunity to be heard” are prerequisites to government action — including employment termination — that places a “person’s good name, reputation, honor, or integrity” at stake. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The charges must be made “public” by the government employer, Brandt v. Board of Cooperative Educational Services, 820 F.2d 41, 43 (2d Cir.1987), the employee must allege that the charges are false, id., and the alleged defamatory statements must be made “in the course of’ terminating the employment, see Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).¹¹

Vega contends that he was stigmatized by both a memo that was placed in his personnel file and by oral statements of some of the Defendants. Whether or not the alleged stigmatizing statements occurred after Vega’s termination, as the Defendants contend, or in the course of termination, as he contends, see Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 144 (2d Cir.1993) (liberty interest implicated only if defamatory statement made in the course of termination of employment), there was no violation of a federally protected right.

As to the memo, it merely reports Vice-President English’s meeting with Vega on August 17, 1994, at which English asked Vega if the resident advisor’s notes fairly reflected the content of the clustering exercise and Vega replied that they did. There is nothing false in the memo. As to the oral statements, Vega takes some liberties with the record in recounting them. For example, he contends that DeSimone and English “informed the entire department that Professor Vega was a pornographer and a sexual harasser.” Brief for Appellee at 42. The cited record references to English’s deposition reveal that “sexual harassing” was used only in a question put to English and not adopted in his answer, and that English accurately referred to the words used in the clustering exercise as “pornographic,”¹² but did not label Vega a pornographer. The only cited remark that appears to be false is Admiral Miller’s remark to English that Vega had drawn “dirty pictures.” Even if a stigmatization claim could arise from a statement that a plaintiff had put dirty pictures on a blackboard when in fact he had placed dirty words there, there is no evidence that Miller’s remark was conveyed to anyone other than his fellow administrator, English. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1064 (2d Cir.1993) (stating that no court had determined whether a stigma-plus claim could be grounded on a statement communicated only within a police department). The “stigma-plus” claim fails for lack of evidence. At a minimum, it was objectively reasonable for the Defendants to believe that their actions did not violate a clearly established federal right.

Conclusion

We do not decide whether termination of Vega’s employment was an appropriate response to his allowing the classroom exercise to get out of hand, or whether some lesser sanction might have been sufficient. The issue for us is whether, on the undisputed facts of what occurred, the defendants are entitled to the defense of qualified immunity from his claims against them for money damages.¹³ For all of the reasons set forth above, the Order of the District Court is reversed, and the case is remanded with directions to dismiss the complaint against the Appellants.

1 . Vega acknowledges that after his termination from the Maritime College, he was offered employment at Palm Beach Community College.

2 . The words and phrases were written down by a resident advisor assigned to attend Vega's class and tutor students, and his notes are in the record.

3 . For example, a list of final essay topics included "Women who get raped usually deserve it” and "Mentally retarded people should be gassed.”

4 .English claims that the memo to the file was placed only in the vice-president's personal file (which would be accessible only to English and successor vice-presidents), because he did not want it to impair Vega’s prospects for future employment. However, Vega testified that the Defendants' attorney said otherwise in the state court proceedings, maintaining that she found the memo in Vega’s personnel file, an allegation we accept for purposes of this appeal.

5 . In his deposition, Vega said that "[n]ot all” of the words in the notes made by the resident advisor during the clustering exercise were called out by students, but he has made no claim that numerous vulgar words and phrases, as recorded in the advisor's notes, were not called out, including those that Vega said Admiral Miller found to be disgusting.

6 . The decision in Silano was rendered a few months after the Defendants terminated Vega. Nevertheless, because it is the most relevant contemporaneous authority, we include it in our consideration of established law because it helpfully indicates how three appellate judges regarded the applicable law at about the time the Defendants in this case are alleged to have been objectively unreasonable in thinking that they were acting lawfully.

7 . In denying summary judgment, Judge Cote relied on an English professor’s affidavit asserting that permitting and encouraging students to call out anything suggested by a topic is essential to a clustering exercise. This professor's view of the general value of permitting students to call out whatever is suggested by a topic does not create a factual issue as to whether the administrators were objectively reasonable in believing that Vega acted unprofessionally in permitting the clustering exercise on the topic of sex and relationships to continue with the calling out of a string of vulgarities.

8 .In a post-argument submission, he asserted that "the real reason for his termination was the in-class brainstorming exercise.” Letter from Laura A. Menninger to this Panel 3 n.2 (May 14, 2001).

9 . Of course, in this example, if the adverse action were motivated in part by a factor unrelated to the teacher’s conduct, such as the teacher’s race, then dual motivation analysis would be required.

10 . In 1994, the College's sexual harassment policy defined sexual harassment as any unwanted verbal or physical sexual advance, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace, which is offensive or objectionable to the recipient or which causes the recipient discomfort or humiliation, or which interferes with the recipient’s job performance.

11 . Such a claim is often referred to as "stigma plus.” See, e.g., Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir.1989).

12 . See Webster's Third New International Dictionary 1767 (1993) (defining "pornographic” as "descriptive or suggestive of lewdness”).

13 . Our dissenting colleague vastly overstates our ruling and infers from his overstated version of it a dire threat to academic freedom. We share his appropriately high regard for academic freedom, but believe his apprehension is unfounded. In the first place, we are not adjudicating the lawfulness of Vega’s discharge. We are ruling only that the 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. Second, our ruling is not based on either the "topic” of Vega's teaching or his teaching "technique,” 273 F.3d at 471 (Cabranes, J., dissenting). The case would be entirely different if Vega had been terminated simply because his "topic” was "sex and relationships” or because his "technique” involved a "clustering” exercise in which students were invited to consider the appropriate grouping of relevant words or phrases. Vega was terminated because the administrators reasonably believed that he displayed poor professional judgment in permitting the exercise (which we acknowledge was "initiated for legitimate pedagogical purposes,” 273 F.3d at 467) to continue after it had become apparent that the students were persisting in calling out a series of vulgar, sexually explicit words and phrases. Our ruling poses no threat to " 'traditionalist' and unconventional college teachers,” 273 F.3d at 471 (Cabranes, J., dissenting).