Casper v. Tex. Woman's Univ.

1

VIVIAN CASPER, Appellant v. TEXAS WOMAN'S UNIVERSITY, ABIGAIL TILTON, SHANNON SCOTT, GENEVIEVE WEST, SYMONE OSIEKO, CARINE FEYTEN, CAROLYN KAPINUS, AND KATHERINE ANTWI GREEN, Appellees

No. 02-22-00345-CV

Court of Appeals of Texas, Second District, Fort Worth

August 31, 2023

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 22-0364-431

Before Birdwell, Bassel, and Walker, JJ.

MEMORANDUM OPINION

Brian Walker, Justice

After being placed on paid administrative leave from her tenured professorship, Appellant Vivian Casper sued Appellees Texas Woman's University (TWU) and seven TWU administrators in their official capacities (the Individual Administrators) alleging that her rights to due process and free speech were violated. The trial court granted Appellees' plea to the jurisdiction, which attacked Casper's pleadings on immunity grounds. Casper argues on appeal that (1) the individual administrators were not entitled to immunity in their official capacities; (2) she properly pleaded due process violations; (3) she properly pleaded First Amendment violations; and (4) alternatively, the trial court erred by not allowing targeted discovery to help determine jurisdictional facts. We will affirm.

I. BACKGROUND

A. Casper Is Placed On Paid Leave

Casper is a tenured English professor at TWU and has taught there for more than 50 years. After a student filed a complaint alleging that Casper had demeaned and discriminated against her based on race and disability, TWU opened an investigation and placed Casper on paid administrative leave. At the close of the investigation, TWU concluded that there was sufficient evidence to support some of the student's allegations. But TWU chose not to terminate Casper. Rather, it allowed Casper to retain her tenure, salary, and benefits but has not assigned her any teaching assignments or allowed her to engage in other faculty duties indefinitely.

B. Casper Sues and the Trial Court Grants Plea to Jurisdiction

Initially, Casper sued only TWU, alleging that she was not afforded her entitled state and federal due process rights before being placed on leave or having her teaching and faculty duties curbed. TWU answered and filed its initial Plea to the Jurisdiction that challenged the face of Casper's pleadings and argued that TWU was entitled to sovereign immunity. Casper then filed her First Amended Petition, which added the Individual Administrators^[1] and also added a claim that TWU and the Individual Administrators had violated her First Amendment rights. She requested only declaratory relief, injunctive relief, and attorney's fees.

TWU and the Individual Administrators then filed their Supplemental Plea to the Jurisdiction, which effectively joined the Individual Administrators to TWU's original plea in arguing that Casper's pleadings were facially invalid and, thus, barred by sovereign immunity. Specifically, Appellees contended that Casper had not pleaded protectable property, liberty, or speech interests and that she had received all process due to her. They also argued that Casper's federal claims should be dismissed because the Ex Parte Young doctrine did not apply to allow for those claims to be brought in state court against the Individual Administrators in their official capacities.

Casper then moved for a continuance so that she could "adequately respond to" Appellees' plea and requested that Appellees be ordered to engage in limited discovery to aid in her response to their jurisdictional plea.^[2] Without ruling on Casper's continuance motion, the trial court granted the Plea to the Jurisdiction as to both TWU and the Individual Administrators and dismissed Casper's claims with prejudice. The trial court did not state the basis on which it granted the plea. Casper requested findings of fact and conclusions of law and filed motions for new trial and to reinstate. The trial court denied the request for findings of fact and conclusions of law and both motions. Casper appealed.^[3]

C. Casper's First Amended Petition

Casper's First Amended Petition (Petition)-the pleading that was live when the trial court decided the Plea to the Jurisdiction-alleged that TWU and each of the Individual Administrators violated her rights under the due course clause of the Texas Constitution and, via 42 U.S.C. § 1983, her federal due process and First Amendment rights. What follows is a summary of the facts pleaded by Casper in her Petition that are relevant to the jurisdictional analysis.^[4]

Casper began teaching undergraduate and graduate English courses at TWU in 1969, and she earned tenure in 1978. Beyond teaching, Casper has been professionally published, engaged in research, served on "numerous" TWU committees, acted as faculty advisor for student organizations, and has won various teaching awards.

During the 2020 fall semester, Casper taught a small grammar and composition course via Zoom. At the conclusion of the course, one of the students-who had failed the course-filed a complaint against Casper. The student alleged that Casper had been "biased" against her due to her race, had routinely demeaned and embarrassed her in front of her classmates,^[5] and had failed to offer her the required disability accommodations for her dyslexia.

In a February 26, 2021 letter from dean Abigail Tilton with the subject heading "Leave Pending an Investigation," Casper was notified of the student complaint and the pending investigation. Tilton informed Casper that she was placed on leave with pay "through the completion of the investigation"-an action that Tilton characterized as "administrative in nature." Casper was told that, while she was on leave, she could not "participate in any activities or be on any TWU property in [her] role as a faculty member, including communicating or meeting with students, faculty, or staff" or "communicate with students, faculty, or staff, including on social media, about the investigation or any other official [TWU] business." If Casper needed "to communicate with someone for official reasons," Tilton directed her to ask Tilton to coordinate such communication.

Tilton also informed Casper that she would continue to have access to her TWU email account to "perform [her] individual activities." Additionally, Tilton stated, "[W]hile I cannot direct you not to discuss the investigation, I hope you will treat this as the sensitive matter it is." According to Tilton, "[m]embers of the [TWU] community" would be informed of Casper's leave "on an as-needed basis." Tilton said that Casper would be notified when the investigation concluded and that "failure to follow any of these directives [would be] good cause for disciplinary action, including termination of [Casper's] employment."

On March 11, 2021, Casper met with Osieko, who explained to Casper the allegations contained in the student's complaint. At this meeting Osieko did not ask Casper "a single investigatory question" or give her an opportunity to present any evidence to dispute the complaint. But Casper was subsequently given a copy of the complaint, and shortly after the meeting, she provided written documentation and emails to refute the allegations. On May 7, 2021-upon hearing nothing further from TWU about the investigation-Casper filed a grievance with TWU's general counsel that alleged various due process violations and failures to comply with TWU policies and procedures related to her leave.

Casper then received a July 7, 2021 letter from Osieko. This letter-entitled "Investigation Outcome"-informed Casper that the investigation had led to the conclusion that the evidence sufficiently substantiated the student's allegations of disability discrimination and demeaning conduct toward students, in violation of three specifically delineated TWU policies. However, the evidence did not substantiate the allegations of racial discrimination. Osieko stated that the investigation consisted of interviewing Casper and various other school administrators as well as reviewing "several emails and other documents." Osieko conveyed that "[t]his concludes [the] investigation of all claims and allegations in this matter." Casper denies that she was ever interviewed as part of the investigation.

On July 19, 2021, Casper's attorney spoke with Green who informed him that, according to sources from the "highest levels" of TWU, Casper would never be allowed to teach at TWU again.^[6]

Then, on October 4, 2021, Casper received another Investigation Outcome letter from Osieko. This letter drew the same basic conclusions regarding the student complaint but added for the first time that the investigation had uncovered documented, "[a]mple evidence, extending back 11 years," that raised "great concern for Dr. Casper's interaction with students during her career at" TWU. This included evidence showing that Casper had "denied or resisted to provide approved disability accommodations for student(s)[;] . . . resisted to adapt to the use of various technologies or teaching methods even if these changes were for the benefit of the students; and often used insensitive, unprofessional, dismissive and/or demeaning language when communicating with students."

To the contrary, Casper alleged that she had worked diligently to ensure that the complaining student's accommodations were met and had encouraged the student not to give up on the course after the student emailed that she was struggling and overwhelmed by the course. Still, the student continued to struggle, stopped attending class sessions, and failed to take the final exam-which led to her failing the course.

Casper alleged that there "has never been another such complaint filed against [her]" during her time at TWU and that she was not provided with...