The Volokh Conspiracy
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Court Expresses Doubt About Lawprof's Attempt to Block Appointment of Federal Judge as U Kentucky Law School Dean
From Woodcock v. Van Tatenhove (E.D. Ky.), decided Friday by Judge Benjamin Beaton (W.D. Ky.):
Professor Ramsi Woodcock, currently suspended from his teaching duties at the University of Kentucky School of Law, has sued to block former U.S. District Judge Greg Van Tatenhove from serving as the law school's dean.
In his view, hiring a judge rather than a tenured professor to lead the school precludes the law faculty from expressing to the outside world that their scholarship is the product of a peer-reviewed search for truth. This abridges the faculty's collective right to associate around a shared message, Woodcock maintains, even though the University has not barred him or his colleagues from speaking out about the appointment or its effect on their work. Nor do Woodcock's allegations (as clarified during a TRO hearing) suggest that the University has prevented the faculty from writing, submitting, or publishing articles or other scholarship—or indeed from imposing or threatening any sort of sanction if they do. Yet to avoid sending a message the faculty disapproves of, Woodcock has asked the federal court to override the University's appointment, bar Van Tatenhove from serving, and "appoint the Faculty Executive Committee … to the position of dean." …
[T]he Court held a hearing on Monday, July 20, denying the request for a temporary restraining order on three principal grounds:
- Woodcock hadn't established his right to bring a freedom-of-association claim based on the putative message of the entire law-school faculty.
- Assuming the law faculty is an expressive association properly represented by Woodcock, he failed to show that the faculty had collectively articulated any message associated with its scholarship that has been skewed by the hiring of a new dean.
- Assuming such a collective message existed, Woodcock hadn't shown a likelihood that the appointment of a new dean had abridged the faculty's ability to express any such message regarding its scholarship or membership.
After the hearing, the Court ordered counsel to confer in good faith regarding the most appropriate and efficient next steps in this litigation. They have done so, but to little avail. The University Defendants would file and brief a motion to dismiss in the ordinary course and treat the preliminary-injunction request as moot or futile given the TRO ruling. Woodcock seeks accelerated discovery with a view toward a preliminary-injunction hearing before the start of fall classes and the typical faculty hiring period, "on or before August 24." …
"District courts have discretion to order expedited discovery when the moving party shows good cause." … But Woodcock still hasn't shown why discovery is "necessary for a preliminary injunction." And the burden is on him, as the party seeking emergency judicial intervention, to justify his request "to obtain documents from all defendants and their associates relating to the decision to hire Van Tatenhove."
In effect, Woodcock seeks full discovery on a fundamentally backward-looking claim that the University wrongly hired Van Tatenhove in the first place. That perspective appears to bear little relationship to Woodcock's request for a forward-looking injunction that prevents "ongoing irreparable harm caused by the defendants' dilution of the message Woodcock seeks to send through his ongoing association with the law faculty."
Ordinarily, federal civil procedure subjects complaints to adversarial testing before imposing the burdens of discovery on a defendant. That is why defendants may move to dismiss under Rule 12(b)(6) in lieu of an answer that shunts the case into discovery: subjecting defendants to discovery would be unjust if the plaintiff failed to state a claim. Extraordinary emergencies, to be sure, might warrant reversing this orderly procedure. But Woodcock hasn't shown any exigency that warrants upending orderly process here. And granting expedited discovery before accepting a responsive pleading would be especially inappropriate given four serious problems that litigation has already revealed in Woodcock's complaint.
First, that the law-school faculty is a group whose expressive rights regarding scholarship may effectively supersede the University's authority to install a dean of its, rather than the faculty's, choosing.
Second, that Woodcock may assert any such rights on behalf of the faculty. Most cases alleging a violation of a group's expressive association arise through a lawsuit filed by and in the name of a particular group. The right to do so is not obvious when a lawsuit emerges through the action of "a lone wolf."
Third, that an implied message regarding peer review—used in the sense of administrative supervision rather than scholarly review and publication—is one subject to First Amendment protection. Woodcock has not cited any precedent to that effect. Nor has he identified any actual limit on what the faculty may say or write to express its intended message regarding a commitment to peer review, as distinct from a desire to select its own leader in place of the Government's choice. {As used by Woodcock, however, peer review has a different meaning: that the faculty of a particular academic unit, such as the faculty of a law school, decide the appointment, promotion, and retention of faculty based on a review of their scholarship.}
Fourth, that the University's appointment distorts or compels any such message expressed by the faculty. On the facts as currently presented, it remains unclear whether or how the appointment "bars them from associating with anyone," or interferes with their "choice not to propound a point of view contrary to its beliefs." Nor is it clear whether or how Woodcock's membership in the law faculty is a "mandatory association" such that "a reasonable observer would impute some meaning to membership in the organization and the plaintiff objects to that meaning." …
Because Woodcock has failed to carry his burden, the Court denies his motion for expedited discovery and denies, without prejudice, his request for an expedited preliminary injunction hearing.
The court, however, ordered motion to dismiss briefing to be expedited, and announced that it "anticipates holding a hearing or issuing a written ruling promptly" after August 14, when briefing it to close.
There's a political debate in Kentucky about Judge Von Tatenhove's appointment, and the law school faculty was also apparently opposed to the appointment. The American Bar Association's accreditation rules state that "Except for good cause, a dean should not be appointed … over the stated objection of a substantial majority of the faculty," and also generally contemplate that deans be scholars whose scholarship meets the standards for tenure: "Except in extraordinary circumstances, a dean shall also hold appointment as a member of the faculty with tenure."
But I'm pretty confident (for some of the reasons pointed to by Judge Beaton's opinion) that First Amendment law has nothing to say on these questions. Questions about the merits and qualifications of a law school dean are a matter for the body given that authority by state law (or private university bylaw)—not for federal courts.
Note that, while there's a recent tradition of deans being academics, it seems to me that there's a sensible argument for sometimes having experienced members of the legal profession (including judges) as deans of what are after all professional schools. For a prominent recent example of a federal judge being named dean, without having had an earlier academic career, see David F. Levi, dean emeritus at Duke Law School. (See also, though in the context of a university president rather than a law school dean, Janet Napolitano's time as President of the University of California.) But again that's a policy question, not, I think, a First Amendment question.
Bryan Howard Beauman and Carmine G. Iaccarino (Sturgill, Turner, Barker & Moloney PLLC) and Mark B. Maier, Shannan Beverly Stamper, and William Eugene Thro, (University of Kentucky Office of Legal Counsel) represent defendants.