Bd. of Trs. of Purdue Univ. v. Eisenstein

87 N.E.3d 481

BOARD OF TRUSTEES OF PURDUE UNIVERSITY, d/b/a Purdue University and Purdue Calumet; Thomas Keon, individually and in his official capacity as Chancellor of Purdue University Calumet; Saul Lerner, individually and in his official capacity as Professor at Purdue University Calumet; Miriam Joyce, individually and in her official capacity as Professor at Purdue University Calumet; Kathleen Tobin, individually and in her official capacity as Professor at Purdue University Calumet; Colin Fewer, individually and in his official capacity as Professor at Purdue University Calumet; Fahima Ali Jackson, individually and in her official capacity as Professor at Purdue University Calumet, Appellants–Defendants,

v.Dr. Maurice EISENSTEIN, Appellee–Plaintiff

Court of Appeals Case No. 45A04–1612–PL–2728

Court of Appeals of Indiana.

FILED October 30, 2017

Attorneys for Appellants : Stephen R. Pennell, William P. Kealey, Stuart & Branigin, LLP, Lafayette, Indiana

Attorney for Appellee : Edward W. Hearn, Johnson & Bell, P.C., Crown Point, Indiana

Barnes, Judge.

Case Summary

[1] In this interlocutory appeal, the Board of Trustees of Purdue University, d/b/a Purdue University and Purdue Calumet, Thomas Keon, individually and in his official capacity as Chancellor of Purdue University Calumet, and Saul Lerner, Miriam Joyce, Kathleen Tobin, Colin Fewer, and Fahima Ali Jackson, individually and in their official capacities as professors at Purdue University Calumet (collectively, "Defendants"), appeal the trial court's denial of their motion for summary judgment in an action brought by Maurice Eisenstein. On cross-appeal, Eisenstein appeals the trial court's denial of his motion for summary judgment in his action against the Defendants. We affirm the denial of Eisenstein's motion for summary judgment and reverse the denial of Defendants' motion for summary judgment.

Issues

[2] The parties raise numerous issues on appeal and cross-appeal, which we consolidate and restate as:

I. whether the trial court properly denied the Defendants' motion to strike;

II. whether the trial court properly denied summary judgment on Eisenstein's 42 U.S.C. § 1983 claims;

III. whether the trial court properly denied summary judgment on Eisenstein's § 1985 claim;

IV. whether the trial court properly denied summary judgment on Eisenstein's concerted action claims;

V. whether the trial court properly denied summary judgment on Eisenstein's breach of contract claim; and

VI. whether the trial court properly denied summary judgment on Eisenstein's declaratory relief claim.

Facts¹

[3] Purdue has an Anti–Harassment Policy ("Policy") that provides:

Purdue University is committed to maintaining an environment that recognizes the inherent worth and dignity of every person; fosters tolerance, sensitivity, understanding and mutual respect; and encourages its members to strive to reach their potential. The most effective way to work toward preventing Harassment is through education that emphasizes respect for every individual.... Harassment in the workplace or the educational environment is unacceptable conduct and will not be tolerated. Purdue University is committed to maintaining an educational and work climate for faculty, staff and students that is positive and free from all forms of Harassment. This policy addresses Harassment in all forms, including Harassment toward individuals with legally protected status for reasons of race, gender, religion, color, age, national origin or ancestry, genetic information or disability and Harassment toward individuals for other reasons such as sexual orientation, gender identity, gender expression, marital status or parental status.

Appellants' App. Vol. IV p. 224. The Policy also provides: "Retaliation against faculty members, staff members or students for reporting or complaining of Harassment, for assisting or participating in the investigation of a complaint of Harassment, or for enforcing this policy is strictly prohibited." Id. The Policy addresses freedom of speech and provides:

Freedom of thought and expression are the lifeblood of our academic community and require an atmosphere of mutual respect among diverse persons, groups and ideas. The maintenance of mutually respectful behavior is a precondition for the vigorous exchange of ideas, and it is the policy of the University to promote such behavior in all forms of expression and conduct. The University reaffirms its commitment to freedom of speech as guaranteed by the First Amendment to the United States Constitution. Accordingly, any form of speech or conduct that is protected by the First Amendment is not subject to this policy. The University reaffirms its commitment to academic freedom, which is essential to its educational mission and is critical to diversity and intellectual life.

Id. at 225.

[4] Individuals who wish to file a complaint for harassment may do so under Purdue's Procedures for Resolving Complaints of Discrimination and Harassment ("Procedures"). The Procedures require a complaint to be filed within 120 days of an incident and require notice to the respondent and an opportunity to be heard. After a complaint is filed, the Chancellor is required to assign an investigator, and the investigator is required to deliver a report on the investigation to the Chancellor. Within fifteen days of receiving the report, the Chancellor may convene a three-member panel to advise him or her. After the meeting, the Chancellor "shall make a written determination whether a violation of University policy has occurred." Id. at 237. If the complaint is not substantiated, "reasonable efforts will be taken to restore the reputation of the Respondent." Id.

[5] Eisenstein is an associate professor of political science at Purdue University Calumet. Lerner, Joyce, Tobin, Fewer, and Jackson are also professors at Purdue University Calumet. In the spring semester of 2011, a student was taking Eisenstein's Introduction Into Judaism class. On the first day of class, Eisenstein said, "I am glad none of them [Muslims] are in this class." Appellants' App. Vol. II p. 174. Eisenstein also said, "Slavery is nothing compared to what Jews went through" and "The world would be a better place if someone took a gun and shot a bullet into a Muslim's head." Id. at 174–75. The student recorded Eisenstein during a subsequent class. That recording included the following statements:

"No peace treaty is possible for Jews in a state with Muslims."

"There is no basis for racism or discrimination for others when compared to Judaism."

"Everybody complains (Blacks, Hispanics, Women, Asians and Arabs-all crying); however, others have only gone through bad times unlike the Jews."

"Our idiot President now, whatever his name is."

"Muslims kill everybody else."

"Nothing happened to Blacks in the 1960's-not real problems."

"You ca[n] say whatever you want to say about Jews if you are Muslim or Arab and everybody puts up with it."

"Why is it that there is a problem with lynching a Black, but there is no problem with lynching a Jew?"

"Israel [is] hated based on envy and greed."

"Why are Arabs/Muslims so opposed to Israel?" "You cannot explain it because there is no rational explanation. Muslims have historically made no difference. For thousand[s] of years, Muslims haven't contributed anything to society. Oil doesn't count because it is underground and has nothing to do with being Muslim. Except for raping four year-olds, Muslims are not good for anything."

"Luxembourg (a small city in Europe) has produced more scholarly work then [sic] all of the Muslim countries. There is no research, no acclaimed university and no travel worth while in Muslim countries."

" ‘If they [Muslims] didn't exist would any of you miss them or care?"

Id. at 175–76.

[6] Student Wala Issa was enrolled in one of Eisenstein's classes in August 2011. During the class, Eisenstein stated:

Muslims are corrupt and they are corrupting the world; Muslims are no good and all they are good for is their food; Muslims are such bad people; Muslims are hated by everyone with a passion, especially Indians; Muslims are terrorists; Muslims settle things by killing people who are not from the same religion.

Id. at 172. Issa spoke to the Department Chair, Professor Richard Rupp, about Eisenstein's class, and Issa was withdrawn from the class and placed in independent study with Rupp. Rupp discussed the matter with Eisenstein. In October and November 2011, Eisenstein posted several anti-Muslim statements on his personal Facebook page, including a statement that Issa is a "Jew hater." Id. at 174.

[7] As a result of Eisenstein's statements in class and on Facebook, some students and faculty created a private Facebook group to discuss Eisenstein, held a protest on campus, and started a change.org petition to have Eisenstein's employment with Purdue terminated. A public forum was held to discuss the students' concerns. During this time, some students and faculty were communicating privately with each other regarding Eisenstein's behavior and how to file complaints against him. On November 15, 2011, Professor Jackson met with Chancellor Keon and Professor Rupp to get information regarding procedures for filing a complaint against Eisenstein. Chancellor Keon told Jackson that, if she decided to file a complaint, the complaint should be based on substance, not feelings. Chancellor Keon also informed Jackson of a time limit for filing complaints. Jackson later sent an email to Tobin and Joyce advising them that Chancellor Keon suggested quickly filing complaints against Eisenstein and that the focus of the complaints should be "based on substance and not emotion." Appellants' App. Vol. VI p. 223. At some point in November 2011, Tobin also met with Chancellor Keon. Chancellor Keon advised Tobin that he could not give her details on the complaints.

[8] In November 2011, Chancellor Keon received nine complaints against Eisenstein pursuant to Purdue's Policy and Procedures. The complaints...