Board Of Trustees Of Purdue University, d/b/a Purdue University and Purdue Calumet; Thomas Keon, individually and in his official capacity as Chancellor of Purdue University Calumet; Saul Lerner, individually and in his official capacity as Professor at Purdue University Calumet; Miriam Joyce, individually and in her official capacity as Professor at Purdue University Calumet; Kathleen Tobin, individually and in her official capacity as Professor at Purdue University Calumet; Colin Fewer, individually and in his official capacity as Professor at Purdue University Calumet; Fahima Ali Jackson, individually and in her official capacity as Professor at Purdue University Calumet, Appellants-Defendants,
Dr. Maurice Eisenstein, Appellee-Plaintiff
from the Lake Superior Court Trial Court Cause No.
45D10-1205-PL-49 The Honorable John R. Pera, Judge
Attorneys for Appellants Stephen R. Pennell William P. Kealey
Stuart & Branigin, LLP Lafayette, Indiana
Attorney for Appellee Edward W. Hearn Johnson & Bell,
P.C. Crown Point, Indiana
In this interlocutory appeal, the Board of Trustees of Purdue
University, d/b/a Purdue University and Purdue Calumet,
Thomas Keon, individually and in his official capacity as
Chancellor of Purdue University Calumet, and Saul Lerner,
Miriam Joyce, Kathleen Tobin, Colin Fewer, and Fahima Ali
Jackson, individually and in their official capacities as
professors at Purdue University Calumet (collectively,
"Defendants"), appeal the trial court's denial
of their motion for summary judgment in an action brought by
Maurice Eisenstein. On cross-appeal, Eisenstein appeals the
trial court's denial of his motion for summary judgment
in his action against the Defendants. We affirm the denial of
Eisenstein's motion for summary judgment and reverse the
denial of Defendants' motion for summary judgment.
The parties raise numerous issues on appeal and cross-appeal,
which we consolidate and restate as:
I. whether the trial court properly denied the
Defendants' motion to strike;
II. whether the trial court properly denied summary judgment
on Eisenstein's 42 U.S.C. § 1983 claims;
III. whether the trial court properly denied summary judgment
on Eisenstein's § 1985 claim;
IV. whether the trial court properly denied summary judgment
on Eisenstein's concerted action claims;
V. whether the trial court properly denied summary judgment
on Eisenstein's breach of contract claim; and
VI. whether the trial court properly denied summary judgment
on Eisenstein's declaratory relief claim.
Purdue has an Anti-Harassment Policy ("Policy")
Purdue University is committed to maintaining an environment
that recognizes the inherent worth and dignity of every
person; fosters tolerance, sensitivity, understanding and
mutual respect; and encourages its members to strive to reach
their potential. The most effective way to work toward
preventing Harassment is through education that emphasizes
respect for every individual. . . . Harassment in the
workplace or the educational environment is unacceptable
conduct and will not be tolerated. Purdue University is
committed to maintaining an educational and work climate for
faculty, staff and students that is positive and free from
all forms of Harassment. This policy addresses Harassment in
all forms, including Harassment toward individuals with
legally protected status for reasons of race, gender,
religion, color, age, national origin or ancestry, genetic
information or disability and Harassment toward individuals
for other reasons such as sexual orientation, gender
identity, gender expression, marital status or parental
Appellants' App. Vol. IV p. 224. The Policy also
provides: "Retaliation against faculty members, staff
members or students for reporting or complaining of
Harassment, for assisting or participating in the
investigation of a complaint of Harassment, or for enforcing
this policy is strictly prohibited." Id. The
Policy addresses freedom of speech and provides:
Freedom of thought and expression are the lifeblood of our
academic community and require an atmosphere of mutual
respect among diverse persons, groups and ideas. The
maintenance of mutually respectful behavior is a precondition
for the vigorous exchange of ideas, and it is the policy of
the University to promote such behavior in all forms of
expression and conduct. The University reaffirms its
commitment to freedom of speech as guaranteed by the First
Amendment to the United States Constitution. Accordingly, any
form of speech or conduct that is protected by the First
Amendment is not subject to this policy. The University
reaffirms its commitment to academic freedom, which is
essential to its educational mission and is critical to
diversity and intellectual life.
Id. at 225.
Individuals who wish to file a complaint for harassment may
do so under Purdue's Procedures for Resolving Complaints
of Discrimination and Harassment ("Procedures").
The Procedures require a complaint to be filed within 120
days of an incident and require notice to the respondent and
an opportunity to be heard. After a complaint is filed, the
Chancellor is required to assign an investigator, and the
investigator is required to deliver a report on the
investigation to the Chancellor. Within fifteen days of
receiving the report, the Chancellor may convene a
three-member panel to advise him or her. After the meeting,
the Chancellor "shall make a written determination
whether a violation of University policy has occurred."
Id. at 237. If the complaint is not substantiated,
"reasonable efforts will be taken to restore the
reputation of the Respondent." Id
Eisenstein is an associate professor of political science at
Purdue University Calumet. Lerner, Joyce, Tobin, Fewer, and
Jackson are also professors at Purdue University Calumet. In
the spring semester of 2011, a student was taking
Eisenstein's Introduction Into Judaism class. On the
first day of class, Eisenstein said, "I am glad none of
them [Muslims] are in this class." Appellants' App.
Vol. II p. 174. Eisenstein also said, "Slavery is
nothing compared to what Jews went through" and
"The world would be a better place if someone took a gun
and shot a bullet into a Muslim's head."
Id. at 174-75. The student recorded Eisenstein
during a subsequent class. That recording included the
''No peace treaty is possible for Jews in a state
"There is no basis for racism or discrimination for
others when compared to Judaism."
"Everybody complains (Blacks, Hispanics, Women, Asians
and Arabs-all crying); however, others have only gone through
bad times unlike the Jews."
"Our idiot President now, whatever his name is."
"Muslims kill everybody else.''
''Nothing happened to Blacks in the 1960's-not
''You ca[n] say whatever you want to say about Jews
if you are Muslim or Arab and everybody puts up with
"Why is it that there is a problem with lynching a
Black, but there is no problem with lynching a Jew?"
''Israel [is] hated based on envy and greed."
"Why are Arabs/Muslims so opposed to Israel?"
"You cannot explain it because there is no rational
explanation. Muslims have historically made no difference.
For thousand[s] of years, Muslims haven't contributed
anything to society. Oil doesn't count because it is
underground and has nothing to do with being Muslim. Except
for raping four year-olds, Muslims are not good for
"Luxembourg (a small city in Europe) has produced more
scholarly work then [sic] all of the Muslim countries. There
is no research, no acclaimed university and no travel worth
while in Muslim countries."
'"If they [Muslims] didn't exist would any of
you miss them or care?"
Id. at 175-76.
Student Wala Issa was enrolled in one of Eisenstein's
classes in August 2011. During the class, Eisenstein stated:
Muslims are corrupt and they are corrupting the world;
Muslims are no good and all they are good for is their food;
Muslims are such bad people; Muslims are hated by everyone
with a passion, especially Indians; Muslims are terrorists;
Muslims settle things by killing people who are not from the
Id. at 172. Issa spoke to the Department Chair,
Professor Richard Rupp, about Eisenstein's class, and
Issa was withdrawn from the class and placed in independent
study with Rupp. Rupp discussed the matter with Eisenstein.
In October and November 2011, Eisenstein posted several
anti-Muslim statements on his personal Facebook page,
including a statement that Issa is a "Jew hater."
Id. at 174.
As a result of Eisenstein's statements in class and on
Facebook, some students and faculty created a private
Facebook group to discuss Eisenstein, held a protest on
campus, and started a change.org petition to have
Eisenstein's employment with Purdue terminated. A public
forum was held to discuss the students' concerns. During
this time, some students and faculty were communicating
privately with each other regarding Eisenstein's behavior
and how to file complaints against him. On November 15, 2011,
Professor Jackson met with Chancellor Keon and Professor Rupp
to get information regarding procedures for filing a
complaint against Eisenstein. Chancellor Keon told Jackson
that, if she decided to file a complaint, the complaint
should be based on substance, not feelings. Chancellor Keon
also informed Jackson of a time limit for filing complaints.
Jackson later sent an email to Tobin and Joyce advising them
that Chancellor Keon suggested quickly filing complaints
against Eisenstein and that the focus of the complaints
should be "based on substance and not emotion."
Appellants' App. Vol. VI p. 223. At some point in
November 2011, Tobin also met with Chancellor Keon.
Chancellor Keon advised Tobin that he could not give her
details on the complaints.
In November 2011, Chancellor Keon received nine complaints
against Eisenstein pursuant to Purdue's Policy and
Procedures. The complaints were filed by three students, the
Muslim Student Association, and Professors Joyce, Jackson,
Lerner, Tobin, and Fewer. Chancellor Keon appointed Mariah
Butler to investigate the complaints.
Professors Lerner and Joyce later filed additional complaints
regarding retaliation by Eisenstein. Joyce alleged that,
after she filed her complaint against Eisenstein, she saw him
in the hallway of a campus building and said hello and that
Eisenstein responded, "Now I know why your son committed
suicide." Appellants' App. Vol. II p. 178. Lerner
alleged that Eisenstein had sent him and others an email that
stated: "My mother cursed [Lerner] before her death (a
true orthodox curse). He knows why. Therefore, there will be
no association with him. I consider anything from him to be
in and of itself cursed and therefore untouchable."
Appellants' App. Vol. III p. 89. Butler was again
assigned to investigate the complaints.
Butler wrote a report on her investigation, which she
provided to Chancellor Keon. Butler concluded that Eisenstein
violated the Policy by retaliating against Joyce and by
harassing Issa. Chancellor Keon formed a panel to conduct a
hearing. Eisenstein was present at the hearing with his
attorney. After the hearing, the members of the panel made
recommendations to Chancellor Keon. Chancellor Keon
determined that Eisenstein had not breached the Policy except
with regard to the retaliation complaints filed by Lerner and
Joyce. Chancellor Keon issued letters of reprimand to
Eisenstein on February 22, 2012. Per the Procedures,
Chancellor Keon placed the letters in Eisenstein's
personnel file and sent them to Joyce and Lerner. Eisenstein
appealed the determination, but the appeal was denied.
During this time period, Eisenstein contacted Foundation for
Individual Rights in Education ("FIRE"), an
organization that provides assistance regarding free speech,
and provided it with all of the relevant complaints and
documents. FIRE wrote to Purdue and posted the letter to its
website. It also posted Chancellor Keon's response on its
website. Eisenstein also contacted members of the media and
the state legislature regarding the complaints against him.
After receiving Chancellor Keon's February 22, 2012
letter, Eisenstein told members of the media and posted on
his blog that he had been cleared in the nine complaints. At
a Faculty Senate meeting on March 7, 2012, Joyce informed the
Faculty Senate that Eisenstein's statements to the media
were incorrect, that he had been found to have retaliated
against her, and that he had been reprimanded.
Also in March 2012, a cartoon drawn by a student was
published in the student newspaper depicting Eisenstein as a
puppeteer controlling the university's administration.
Comments and discussions regarding Eisenstein were posted on
a campus-wide listserv, and some of the Defendants ...