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Higbee v. Eastern Michigan University

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

July 1, 2019

Mark Higbee, Plaintiff,
Eastern Michigan University, et al., Defendants.


          Sean F. Cox United States District Judge.

         In September 2016, racist graffiti appeared on the campus of Eastern Michigan University. Students protested, and the University instituted disciplinary action 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 brought 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 brought 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”).

         On February 14, 2019, the Individual Defendants filed a motion to dismiss the § 1983 claims, arguing that they are entitled to qualified immunity. (ECF No. 28).[1] For the reasons below, the Court will deny the Individual Defendants' motion.


         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.

         On the first page of the Individual Defendants's brief in support of their motion to dismiss, they argue that “HN in C” is commonly understood to mean “Head Ni**ers in Charge.” Individual Defs.' Br. 1 (ECF No. 29, PageID 217) (redaction added). 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). Higbee asserts that this phrase has a non-offensive, academic definition. Higbee Aff. ¶ 6-7 (ECF No. 35, PageID 611).[2]

         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 temporarily 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 the first two counts, Higbee alleged state-law claims of retaliatory discharge against the University and the Board of Regents, respectively. In the other fifteen counts, Higbee alleged First Amendment retaliation claims, by way of § 1983, against the individual Regents and University administrators who made the decision to suspend him.[3]

         On February 14, 2019, the Individual Defendants filed their pending motion to dismiss, arguing that they are entitled to qualified immunity because they did not violate a clearly established First Amendment right by disciplining Higbee for his use of the term “HN in C.” Higbee filed a response to this motion. (ECF No. 33). The Individual Defendants filed a reply. (ECF No. 37). The Court heard oral argument on this motion on May 30, 2019.


         I. Applicable Standard

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. The Court must construe the complaint in the light most favorable to the plaintiff and accept its allegations as true. DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). To survive a motion to dismiss, the complaint must offer sufficient factual allegations that make the asserted claims plausible on their face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Legal conclusions couched as factual allegations will not suffice. Rondigo, LLC v. Township of Richmond, 641 F.3d 673, 670 (6th Cir. 2011). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In addition to the allegations in the complaint, the Court may also consider “other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice.” Ashland, Inc. v. Oppenheimer & Co., Inc., 648 F.3d 461, 467 (6th Cir. 2011).[4]

         II. The Individual Defendants' Motion

         In Counts III through XVII, Higbee alleges § 1983 claims against the Individual Defendants for First Amendment retaliation. The Individual Defendants argue that qualified immunity shields them from these claims. “Government officials who perform discretionary functions are entitled to qualified immunity from civil damage suits arising out of the performance of their official duties unless they violate clearly established constitutional rights of which a reasonable person would have known.” Purisch v. Tennessee Technological University, 76 F.3d 1414, 1423 (6th Cir. 1996) (internal citations omitted). In other words, public officials are eligible for qualified immunity if (1) they did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not “clearly established” at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Both inquiries are “objective, ” as they turn on what the law is today and whether it was clearly established at the time of the challenged action. Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982).

         “The purpose of a qualified immunity defense is not only protection from civil damages but protection from the rigors of litigation itself, including the potential disruptiveness of discovery.” Summers v. Leis, 368 F.3d 881, 886 (6th Cir. 2004). Accordingly, “a qualified immunity defense can be raised at various stages of the litigation[, ] including at the pleading stage in a motion to dismiss, after discovery in a motion for summary judgment, or as a affirmative defense at trial.” English v. Duke, 23 F.3d 1086, 1089 (6th Cir. 1994). However, even though entitlement to qualified immunity “is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal under Rule 12.” Wesley v. Campbell, 779 F.3d 421, 433-434 (6th Cir. 2015) (internal citations omitted) (collecting ...

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