Answers to Winter 2008
California Bar Exam Questions

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Winter 2008 Performance Test

PT-B

SNYDER v. REGENTS OF THE UNIVERSITY OF COLUMBIA

To: R.J. Morrison
RE: Snyder v. University Board of Regents,
Likelihood of Success on Preliminary Injunction

Facts: The Board of Regents of the University of Columbia removed Dr. Snyder as Chair of the Department of Medicine immediately following its vote to relocate the medical school, which Dr. Snyder vocally and publicly opposed.  Snyder says the loss of the chair will cause pharmaceutical companies not to license research into home dialysis he directs. The licensing negotiations are at a critical stage. Although the Board states removing Snyder as Chair is not related to his opposition on the relocation, Dr. Snyder believes the Board wanted to punish him for not being a team player and to chill dissent from others in the University.

Conclusion: Mr. Snyder is likely to succeed in award of preliminary injunction preventing University from removing him as Chair because
(1) Dr. Snyder can establish that his free speech rights under the Columbia constitution have been violated.
(2) Dr. Snyder can show he is threatened with irreparable harm.
(3) The harm to Dr. Snyder outweighs the harm to the University.
(4) Granting the preliminary injunction has no adverse effect on the public interest.

Roadmap for Analysis:
The Elkins case sets out the following steps to prevail on a preliminary injunction.
I. Likelihood of success on the merits when a free-speech violation is alleged.
            A. Matter of public concern
            B. Employee’s interest outweighs employer’s interest in:
                        1. Maintaining workplace discipline and harmony
                        2. Necessity for employee’s personal loyalty and confidence
                        3. Ensuring job responsibilities are not impeded
                        4. Ensuring appropriate time, place, manner of speech
                        5. Allowing debate vital to decision-making
            C. Employee’s speech was substantial factor in adverse government action.
            D. Employer would not have taken adverse action absent speech
II. Irreparable harm threat to Plaintiff
III. Harm to Plaintiff outweighs damage to government.
IV. Granting injunction is not adverse to the public interest

I. Likelihood of proving free speech violation.
In Elkins, the Columbia Supreme Court approved the Boyer four-part test for determining whether the first amendment free speech rights of a public employee have been violated.
A. The speech relates to a matter of public concern.
Even though the university framed the decision to relocate the medical school as purely internal, it has held a series of public hearings. Relocating the Medical School involves substantial public debt in a bond measure and removes health care twenty miles from the state’s indigent population center with no access to public transportation. Therefore, the issue is a matter of public concern.

B. Employee’s interest outweighs employer’s interests in the following five factors:
1. Did the Dr Snyder’s speech create problems for the University in maintaining discipline or harmony among coworkers?
In Harlan, the court, in construing the employer’s interests, pointed out that in a democratic society healthy dissent and debate are essential to the vitality of public institutions. Few institutions require accountability to the public more than the state’s major provider of health care to the medically underserved. And few institutions exist to foster free speech as much as a public university.

The Harlan court said the court must consider the ability of the employer to do its essential work without undue disruption of its operations despite the exercise of free speech rights. The Board does not accuse Dr. Snyder of disrupting the work of the clinics or of the department. It cites only that “several” in Dr. Snyder’s department of fifty were intimidated by his views. It is true that Dr. Snyder circulated a petition opposing the relocation. But 45 of 50 of his department members signed it. Perhaps a few did so because they were intimidated. This is the only instance it cites of disharmony. One instance, involving “several” out of 50 staff, occurring over a period of a couple of months in his 20 year tenure as Chair.

The Board makes no other assertions that Dr. Snyder has been ineffective as Chair, To the contrary, it calls him an invaluable member of the University community and hopes that he will continue as a Professor of Medicine in the Department.

Therefore, Dr. Snyder’s speech did not cause the University any significant problems in maintaining harmony.

2. Must a University Chair exhibit personal loyalty and confidence?
The Harlan court notes that the relationship between a professor and his superiors does not necessitate loyalty and confidence. Dr. Snyder is the Chairman of one of 16 departments in the University. His position does not require him to exhibit personal loyalty and confidence.

3. Did the speech impede the employee’s ability to perform his job?
The job of a department chair is to be responsible for the organization of their department and to implement policies initiated by the Chancellor and Dean.  The Board has not impugned Dr. Snyder’s effectiveness in running the department. The Board cited no instance Dr. Snyder failed to carry out a university or department policy.

On the contrary, Dr. Snyder can cite several examples when he vociferously opposed a proposed action but then supported the action fully when the policy was enacted. The Board said Snyder’s current opposition has undermined its confidence that he can be a team player, but it cites no instances when this has occurred once a policy has been adopted.

4. Was the employee’s speech appropriate in time, place and manner?
The court in Harlan considers whether the employee followed authorized procedures in making his speech. Here, Dr. Snyder appeared at public hearings convened by the University for the express purpose of seeking public comment. Dr. Snyder issued a report and delivered it to the Board.  This is entirely within the parameters.

Apparently what led the Board decision to strip Dr. Snyder of his chairmanship was his letter to the editor of the local newspaper, published seven weeks before the final public hearing. In that letter, he referred readers to his webpage on which he linked the full report he had submitted to the Board. That report was probably a matter of public record, since the hearing has been public, although admittedly it would not have been easily accessible to the public at large. That is a change the Internet has wrought on public discourse. A letter to the editor in itself does not seem to be an inappropriate forum. Dr. Snyder said he was writing as a private citizen. However, he did identify himself as Chairman of the Department of Medicine as well.

            The letter also encouraged community members to attend the next public hearing and make their opposition known. It was at that meeting that the Board voted to relocate just as public opposition was increasing, prompted by Dr. Snyder’s letter. It seems that it was not the inappropriateness of Dr. Snyder’s forum that so angered the Board, but how bad it made them look, when they voted to relocate without giving any consideration to the public’s views at this last public hearing.

5. Was debate vital to informed decision-making?
The relocation cost the taxpayers of Columbia many millions of dollars in public bonds and will in fact lessen the availability of health care to the state’s neediest citizens. It certainly deserves a full public airing.

Therefore, the five subparts are met and the employee’s interest outweighs the government employer’s interest.

C. Employee’s speech a substantial factor in Board action.
Dr. Snyder’s speaking out against the move was the only factor in the Board’s action of removing his chairmanship.

The vote to take away the chairmanship was done moments after it voted to move the medical school, despite public outcry. Both Jack Blake, the Chancellor of the Health Science Center, and Paul Simmons, the Dean of Medical School had asked Snyder to tone down his criticism months before. Apparently, the decision to relocate had already been made and the whole public comment process was a sham. Blake and Simmons want the University to present a united front so as to deflect any outside criticism.

In its letter explaining why it was stripping Dr. Snyder of his chair, the Board said it was at the behest of Blake and Simmons because Snyder had made it his mission to “sabotage this effort” since “day one.”

The Board was transparent in its reason: his opposition to the move of the medical school, which it termed as divisive. The retaliation is absolutely clear and was certainly a substantial factor in the Board action.

D. Employer would not have taken the same action even in the absence of employee’s speech.
Dr. Snyder has survived as Chair for more than 20 years and has proved himself to be a team player in past debates. He cited past instances when he had opposed university decisions while they were under development. But when the final decision was taken, he threw his support behind it. He promised them that he would do so this time, as well. He also reminded Blake and Simmons of this and pledged his support for whatever decision was reached about the relocation.

Yet the Board stated that his recent activities undermined the University’s confidence in his ability to be a team player. In the same letter, it said that he was doing a fine job in all other respects and that it hoped he would remain with the department and would continue all his other responsibilities. It could not have been more obvious that the only reason for his demotion was in punishment for his embarrassing the board at the hearing.

Therefore, Dr. Snyder can meet the four factors of Boyer’s free-speech test. .

II. Irreparable harm.
Dr. Snyder can show he will be irreparably harmed by loss of his chairmanship because his important research into methods of home dialysis will not receive the research funding, thus depriving the public of health benefits.
Harlan indicates that if the employee can be compensated by money damages, irreparable harm will not be shown. Financial losses, difficulty in finding other employment can all be compensated for by money and will not satisfy the irreparable harm test. But in this case, Dr. Snyder’s ability to attract pharmaceutical company licensing of medical school research will end when he has lost the perceived power to direct staff and resources of the medical school. He is far along in his research into the development of home dialysis equipment. This research, in which he is well advanced, will be abruptly ended due to the perception that Snyder has lost all power within the Department to direct research funds and research manpower. This will cause the pharmaceutical firms to refuse to license his research. The harm is not only to Dr. Snyder personally, but also to all kidney patients who could have benefited from the new technology.

III, Harm to employee outweighs any harm to employer if injunction issues.
The University will suffer no harm if its decision to strip Dr. Snyder of the chairmanship is delayed until there can be a complete adjudication of the merits. The debate over relocation is over so Snyder will not be “intimidating” those in his department or publicly addressing the issue. These were the only concerns the Board raised about his effectiveness as Chair.

Whereas, as above, Dr. Snyder faces loss of years of research and progress toward home dialysis once he has been perceived of having lost the power to direct medical school resources.

IV. Not adverse to public interest.
Granting Dr. Snyder’s preliminary injunction serves the public interest because it sends a message that free and fair public debate within the academic community cannot be stifled by intimidation of retribution.

Therefore, the preliminary injunction should be granted.

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