980 F.3d 799
11th Cir.2020Background:
- James Tracy, a tenured Florida Atlantic University (FAU) communications professor, ran a personal blog questioning the Sandy Hook shooting; FAU asked only that he post a disclaimer and follow the CBA’s outside-activity reporting rules.
- The CBA required faculty to report “Reportable Outside Activity,” defined to include "professional practice, consulting, teaching or research" outside assigned duties, and prohibited conflicts of interest (including activities conflicting with the University’s public interests).
- Tracy posted a University-approved disclaimer but refused to file outside-activity reports, arguing his blog was not a reportable "professional practice." FAU repeatedly warned him that failure to comply could lead to discipline.
- After multiple notices and missed deadlines, FAU terminated Tracy for insubordination based on his failure to timely file required reports.
- Tracy sued under § 1983 for First Amendment retaliation, and challenged the Policy as vague/overbroad and sought declaratory relief; he also alleged breach of the CBA. The district court granted summary judgment to FAU on most claims but sent the retaliation claim to trial.
- A jury found FAU did not fire Tracy because of his speech; the Eleventh Circuit affirmed the summary-judgment rulings and the jury verdict, and upheld exclusion of a Faculty Senate transcript.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Breach of contract / exhaustion of CBA grievance process | Tracy contended FAU breached the CBA by firing him and that grievance/arbitration was optional or futile | FAU argued the CBA made grievance/arbitration the exclusive remedy and Tracy failed to exhaust it | Court: Tracy’s breach claim barred for failure to exhaust mandatory CBA grievance/arbitration (summary judgment affirmed) |
| 2. Vagueness of reporting requirement ("professional practice") | Term is undefined and overbroad; professors lack fair notice what must be reported | Term has an ordinary meaning limited by context (consulting, research, teaching); gives fair notice | Court: "Professional practice" construed by plain meaning and context; not unconstitutionally vague or overbroad (summary judgment affirmed) |
| 3. Conflict-of-interest clause / unbridled discretion | Clause ("public interests of the University") vests unfettered discretion and operates as a prior restraint | FAU: clause has not been applied to restrict speech; challenge is speculative and must be tested by reporting the activity | Court: Facial challenge fails—no pattern of discriminatory enforcement shown; as-applied claim unripe because Tracy didn’t report; affirmed summary judgment |
| 4. First Amendment retaliation (jury verdict) | Tracy argued his speech was a substantial motivating factor and no reasonable jury could find otherwise | FAU emphasized repeated noncompliance and insubordination; administrators testified they never asked him to stop blogging | Court: Evidence supported jury finding that insubordination, not speech, motivated firing; denial of JMOL and new trial affirmed |
| 5. Exclusion of Faculty Senate transcript | Transcript showing faculty criticism of Policy was relevant to show confusion and effect on University | FAU argued hearsay, low probative value, and high risk of prejudice/confusion | Court: District court did not abuse discretion excluding transcript under Rule 403; exclusion affirmed |
Key Cases Cited
- Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496 (U.S. 1982) (§ 1983 exhaustion rule)
- Redmond v. Dresser Indus., Inc., 734 F.2d 633 (11th Cir. 1984) (CBA grievance/arbitration exhaustion principle)
- Hawks v. City of Pontiac, 874 F.2d 347 (6th Cir. 1989) (discussing limits on vagueness challenges to contractual terms)
- Doe v. Valencia Coll., 903 F.3d 1220 (11th Cir. 2018) (university code not facially overbroad or vague)
- Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018) (standard of review for summary judgment and constitutional questions)
- City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (U.S. 1988) (unbridled-discretion doctrine for licensing schemes)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (U.S. 2002) (challenge to discretionary permit regimes requires proof of pattern of favoritism)
- FCC v. Fox Television Stations, Inc., 567 U.S. 239 (U.S. 2012) (void-for-vagueness fair-notice principle)
- United States v. Williams, 553 U.S. 285 (U.S. 2008) (vagueness requires showing of indeterminacy of the forbidden fact)