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Higbee v. Eastern Michigan University

United States District Court, E.D. Michigan, Southern Division

June 17, 2019

Mark Higbee, Plaintiff,
v.
Eastern Michigan University, et. al., Defendant.

          OPINION AND ORDER GRANTING INSTITUTIONAL DEFENDANTS' MOTION TO DISMISS (ECF No. 28)

          Sean F. Cox United States District Court Judge

         In September 2016, racist graffiti appeared on the campus of Eastern Michigan University. Students protested, and the University instituted disciplinary actions against the protestors. Almost a year later, a former student was arrested for the vandalism. In the arrest's aftermath, Plaintiff-a history professor at the University-posted a message in a public Facebook group, criticizing the University's response to the graffiti and referring to African American administrators as ‘‘HN in C' functionaries.” The University interpreted this phrase as a racial slur and suspended Plaintiff, without pay, for one semester. Plaintiff filed a grievance through his union, and an arbitrator reversed his suspension.

         On December 4, 2018, Plaintiff filed this lawsuit, alleging two sets of claims. First, Plaintiff brings retaliatory discharge claims under Michigan's Elliott-Larsen Civil Rights Act (“ELCRA”) against the University and its Board of Regents (“the Institutional Defendants”). Second, Plaintiff brings First Amendment retaliation claims, under 42 U.S.C. § 1983, against the individual Regents and other administrators who decided to punish him for the post (“the Individual Defendants”).[1]

         On February 14, 2019, the Institutional Defendants filed a motion to dismiss the ELCRA claims. (ECF No. 28).[2] For the reasons below, the Court will grant the Institutional Defendants' motion and dismiss the ELCRA claims.

         BACKGROUND

         Plaintiff Mark Higbee is a Professor of American History at Eastern Michigan University. Defs. Stat. of Material Facts ¶ 1. (ECF No. 27, PageID 94). Higbee teaches courses on African American History. Id. at ¶ 2.

         In September 2016, racist messages were spray-painted on a residence hall at the University. Id. at ¶ 13; Ex. 3 (ECF No. 27-4). More racist graffiti appeared the next month. Id. Students protested the graffiti by organizing a peaceful sit-in at a University building. Id. After the protesters refused to leave the building at closing time, the University disciplined them by issuing formal reprimands and deferred suspensions. Id. The University later dropped all disciplinary action against the protesters. Id. Pl.'s Counter-Stat. Of Material Facts ¶ 15. (ECF No. 35, PageID 584).

         More than a year after the first act of vandalism, an African American former student of the University was arraigned on criminal charges for creating the graffiti. Defs. Stat. of Material Facts. ¶ 16. In the aftermath of the arraignment, Higbee wrote the following post in “EMUTalk, ” a public Facebook group:

EMU administrators, a small group of well paid white guys in suits (plus one woman and a few lower level “HN in C” functionaries), lacked the insight to imagine that they could ever, possibly, be remotely seen as responsible for institutional racist practices. And so they continued to act as the aggrieved party, needlessly alienating students who objected to racism. Why EMU officials, earning six figures or more, took this stance can only be explained by a combination of 1. ignorance about what racism is, 2. overconfidence that they are the good guys, 3. a lack of knowledge of EMU specifically and of higher education generally.

Compl. ¶ 26.

         In their motion to dismiss, the Institutional Defendants argue that “HN in C” is commonly understood to stand for “Head Nigger in Charge.” Institutional Defs.' Br. 4, n.5 (ECF No. 28, PageID 142) (collecting cases in which a court has noted this meaning). In response, Higbee contends that, among scholars of the African American experience, “HN in C” is commonly understood to mean “Head Negro in Charge.” Higbee Aff. ¶ 5. (ECF No. 34, PageID 524-525).[3]

         On December 13, 2017, the University suspended Higbee, without pay, for one semester and required him to attend and complete a one-on-one training session with a professional consultant. Compl. at ¶ 27. The University also banned Higbee from campus and from using its email system. Id.

         As a member of the University's Chapter of the American Association of University Professors, Higbee grieved his suspension and discipline. Id. at ¶ 29. On July 23, 2018 arbitrator Barry Goldman reversed the University's sanctions. Id. at ¶ 31.

         On December 4, 2018, Higbee filed his seventeen-count complaint in this action. In the first two counts, Higbee alleges state-law claims of retaliatory ...


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