The rationale for this holding is that the teacher is acting as the educational institution's proxy during his or her in-class conduct, and the educational institution, not the individual teacher, has the final determination in how to teach the students. See Brown v. Armenti, 247 F.3d 69, 74-75 (3d Cir. 2001). In order to determine if the teacher's conduct is considered in-class conduct, we must determine whether the teacher is engaging in one of the "four essential freedoms" that constitute academic freedom.
(ECF No. 78 (SRU brief) at 14–15.) In support of their argument, the Individual SRU Defendants rely on Brown v. Armenti, 247 F.3d 69 (3d Cir.2001), and Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172 (3d Cir.1990). Kahan opposes the Individual SRU Defendants' motion on the ground that his First Amendment claim is based upon conduct “significantly broader” than “forcing Kahan to raise [Tommy Winslow's] grade.”
We reject the appellants' suggestion that Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), somehow narrowed Johnson. Saucier never referred to Johnson and said nothing whatsoever about appellate jurisdiction. Nor do we read Brown v. Armenti, 247 F.3d 69 (3d Cir. 2001), as supporting appellants' position. In Brown, we quoted Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), stating that Johnson held "that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case."
The Third Circuit has consistently held that there are "recognized limitations upon free speech" in the educational setting. Brown v. Armenti, 247 F.3d 69, 74 (3d Cir. 2001); see Edwards v. Cal. Univ. of Penn., 156 F.3d 488, 491 (3d Cir. 1998) ("[A] public university professor does not have a First Amendment right to decide what will be taught in the classroom."). A teacher's in-class conduct is not protected speech.
The First Amendment does not protect a teacher's in-class conduct because during class, the teacher acts as the educational institution's proxy, and the educational institution, not the individual teacher, has the final say in how to teach students. SeeBrown v. Armenti , 247 F.3d 69, 74–75 (3d Cir. 2001). The institution, not the teacher, has control over the "four essential freedoms" that comprise academic freedom: the right of an institution to choose "who may teach, what may be taught, how it shall be taught, and who may be admitted to study."
Lyons relies on pre- Garcetti cases from other circuits involving professors' speech about academic integrity and grade inflation. See Brown v. Armenti, 247 F.3d 69, 75, 79 (3d Cir. 2001) ; Coats v. Pierre, 890 F.2d 728, 732 (5th Cir. 1989) ; Johnson v. Lincoln Univ., 776 F.2d 443, 452 (3d Cir. 1985). But these cases did not address whether the speech at issue was pursuant to the plaintiffs' job duties, an issue that would have changed the analysis and perhaps the result in each case, as post- Garcetti cases in those circuits illustrate.
In In re Montgomery County , this Court joined numerous other Courts of Appeals in holding that a district court's "implicit denial of the Appellants' immunity claims is sufficient to confer appellate jurisdiction." Wright v. Montgomery Cty. (In re Montgomery Cty .), 215 F.3d 367, 370, 374 (3d Cir. 2000) ; see also Brown v. Armenti , 247 F.3d 69, 72 n.1 (3d Cir. 2001) ("Even though a district court does not explicitly address the immunity claims [in denying summary judgment], we nonetheless have jurisdiction to review the implied denial of those claims."). And qualified immunity may be implicitly denied when a government official otherwise entitled to immunity is nonetheless subjected to "the burdens of such pretrial matters as discovery."
The First Amendment concept of academic freedom does not require that a nontenured professor be made a sovereign unto himself.Parate, 868 F.2d at 827 (internal citations omitted); see also Brown v. Armenti, 247 F.3d 69, 75 (3d Cir. 2001) ("Because grading is pedagogic, the assignment of the grade is subsumed under the university's freedom to determine how a course is to be taught. We therefore conclude that a public university professor does not have a First Amendment right to expression via the school's grade assignment procedures.").
II. STANDARD OF REVIEW Review by this Court is plenary when a denial of qualified immunity turns solely on a question of law. Brown v. Armenti, 247 F.3d 69, 72 (3d Cir. 2001). We recently reiterated that this Court lacks jurisdiction to evaluate the sufficiency of the evidence when reviewing a denial of summary judgment based on a lack of qualified immunity.
In cases where a plaintiff fails to provide particularized facts to oppose a government official's assertion of qualified immunity, a motion for summary judgment should be granted. Brown v. Armenti, 247 F.3d 69, 78 (3d Cir. 2001). The existence of factual disputes, supported by evidence in the record, may render qualified immunity unavailable in some cases.