Keen v. Penson

970 F.2d 252, 1992 WL 164061
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 16, 1992
DocketNo. 91-2871
StatusPublished
Cited by11 cases

This text of 970 F.2d 252 (Keen v. Penson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keen v. Penson, 970 F.2d 252, 1992 WL 164061 (7th Cir. 1992).

Opinion

CUMMINGS, Circuit Judge.

Plaintiff Carl Keen, a professor at the University of Wisconsin-Oshkosh (“UW-Oshkosh”), spent the summer of 1985 attempting to force a “proper” apology from a former student for several comments she made in class, and one comment she made [253]*253before class. Ironically, Keen now complains because the defendant, UW-Oshkosh Chancellor Edward M. Penson, ordered him to write a letter of apology to the student as well as change the student’s grade, which he refused to do. Penson eventually demoted Keen from associate professor to assistant professor, and reduced his salary by $700 a year. Keen sued Penson, claiming a violation of his First and Fourteenth Amendment rights to academic freedom and his Fourteenth Amendment right to procedural due process. The district court granted Penson’s motion for summary judgment. We affirm.

I. FACTS

Kathleen Johnson, then a sophomore at UW-Oshkosh, enrolled in Keen’s English 226 course entitled Modern American Literature for the Spring 1985 semester. The syllabus for the class noted that spot quizzes accounted for 20% of the grade, and that a so-called optional book report accounted for 10% of the grade. The syllabus also asked for student questions and comments at the beginning of every class. Johnson did not like spot quizzes, and complained of their unfairness on two or three occasions at the beginning of class when they were administered. Johnson also understandably thought it unusual to label as “optional” a book report that was not treated as extra credit but rather was treated the same as other, “mandatory” assignments. She complained about this to another student before class and was apparently overheard by Keen.

Keen believed that Johnson created a negative atmosphere in his class and that her comments were unfair. Keen also thought that Johnson was overly grade-conscious. The disagreement between Keen and Johnson apparently reached a head at two end-of-semester conferences in May 1985. At the first conference, Keen told Johnson that he had tentatively assigned her a “C” grade. They scheduled a second conference,1 but Johnson returned to Keen’s office prior to the scheduled time of the second conference. Johnson did not attend the scheduled second conference, believing that the second meeting obviated its need. Keen apparently disagreed, and submitted a grade of “Incomplete” for Johnson.

In a June telephone conversation with Johnson, Keen made it clear that he would not submit a grade for her until he received an appropriate apology, to him and to all class members, for her conduct in his class. A series of letters between Johnson and Keen followed, in which Johnson’s apologies were repeatedly deemed unacceptable by Keen. Summaries of these letters do not capture their complete, flavor. The Appendix to this opinion contains an edited version of the summer correspondence. This correspondence presents, at the very least, substantial evidence of Keen’s unprofessional behavior,

Following a heatéd telephone conversation in August 1985 with Richard Johnson, Kathleen’s father, Keen sent yet another letter (2 pages long) to him, which was similar in tone to his previous letters. Keen finally assigned Johnson a grade of “F” on September 5, 1985, because he gave her a “0” grade for class participation. Keen did not think any other student in the class had received less than a “70” for class participation. After unsuccessfully appealing within the English Department, Richard Johnson wrote a letter of complaint to Chancellor Penson. In the letter, Richard complained about the “F” grade his daughter received as well as the unprofessional, insulting, degrading, and intimidating letters that Keen had sent to his daughter. . Penson responded to Richard’s complaint by asking Professor John Lucas to conduct an independent investigation and make recommendations. Lucas’ report, as well as subsequent hearings concerning the Keen-Johnson dispute, are summarized below.

[254]*254THE HEARINGS

1. Professor John Lucas

Lucas, a faculty rights advocate who was surprised by Penson’s request that he serve as his designate, talked with Keen for twenty minutes on the phone, and then met with him for an hour with another professor present at Keen’s request. The purpose of the meeting was to discuss the complaint and give Keen an opportunity to respond to the charges. As part of his investigation, Lucas also interviewed several professors in the English Department and Richard and Kathleen Johnson. He examined the summer correspondence discussed above as well as other documents. In a 6-page report with two pages of addenda, Lucas made the following conclusions:

A. Dr. Keen’s syllabus for English 226, spring, 1985 was both unclear and incomplete. * * * [N]owhere in the syllabus is the end-of-semester conference required. * * * Finally, Dr. Keen specifically states that he will take Kathy Johnson’s correspondence in this matter “... Into account for determining your final grade.” Later, Dr. Keen implies that Ms. Johnson’s noncooperation in answering a list of 26 questions constitutes an “unscholarly and objectionable” attitude, implying that this was a new course requirement for her to complete. In my opinion, these latter demands were unreasonable and not specified in the syllabus as requirements of the course.
* * * * * *
C. * * * [B]y changing Kathy Johnson’s grade to an “F,” judging that she deserved a 0% for class participation (which resulted in the “F”) and justifying that decision (0%) on the basis that Ms. Johnson has a bad attitude and failed to fulfill the “goal” of the course [the search for truth] (which itself was not specified in the course syllabus), Dr. Keen is in effect grading Ms. Johnson ex post facto, based on new criteria which surfaced in the last week of the course, and which was not clearly specified in his syllabus.
D. It is my opinion that the correspondence of Dr. Keen contains statements too numerous to mention specifically here, which are unwarranted, personally demeaning to the intended reader, overbearing, unforgiving, and relentless. At the very least, many of these statements are unprofessional; at worst, they are libelous. The general tone of his letters is one of verbal harassment. In either case, they should not have been written by a faculty member. * * *
* * * * * *
[M]y recommendation to you, Chancellor Penson, is to invoke administrative disciplinary action against Dr. Carl Keen in the form of a sanction, at least at the level of requirement for restitution. Such restitution should be in the form of a written apology to both Ms. Kathleen Johnson and her father, Mr. Dick Johnson, and a grade change from “F” to, at least, “C,” for English 226, spring, 1985.
Should Dr. Keen choose not to make this restitution, I would then recommend that dismissal action be taken against him. * * *2

Penson wrote a letter to Keen on October 8, 1985, informing him that he had received Lucas’ report and inviting him to meet with him if he wished to discuss the matter. Keen wrote Penson a four-page letter dated October 12, 1985, repeating his side of the story. On October 29, 1985, Penson accepted Lucas’ recommendations and invoked the sanctions contained therein (apology and grade change).

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