Full opinion text
MURRAY M. SCHWARTZ, District Judge. Plaintiff, Richard B. Aumiller (“Aumiller”), a nontenured “Lecturer” at the University of Delaware (“University”) during the 1974-75 and 1975-76 academic terms, has brought a civil rights action under 42 U.S.C. § 1983 against the University of Delaware, the Board of Trustees of the University and a number of University officials and administrators. The individual defendants include Edward A. Trabant (“Trabant”), President of the University; Samuel Lenher (“Lenher”), Chairman of the Board of Trustees; L. Leon Campbell (“Campbell”), Provost and Vice President for Academic Affairs; George H. Gibson (“Gibson”), Assistant Provost; Helen Gouldner (“Gouldner”), Dean of the College of Arts and Science; and Brian Hansen (“Hansen”), Chairperson of the Department of Theatre of the College of Arts and Science. The individual defendants are sued both in their official and individual capacities with the exception of Assistant Provost Gibson and Dr. Hansen, who are sued solely in their official capacities. The gravamen of plaintiff’s complaint is that defendants violated his First Amendment rights of free expression and association by refusing to renew his contract for the 1976-77 academic term based on his statements on the subject of homosexuality appearing in three newspaper articles. Aumiller’s original complaint in this action was filed on February 19, 1976. In addition to the First Amendment claim, the original complaint also contained two contract claims corresponding to two of the grievances filed in the University grievance proceeding and a cause of action predicated on an alleged denial of procedural due process. Subsequently, with the consent of defendants, plaintiff filed an amended complaint on July 26, 1976, limited exclusively to claims under the First Amendment. In the amended complaint, plaintiff contended that the actions of defendants were taken in bad faith, under color of state law, and that defendants knew or should have known that their actions would and did deprive Aumiller of his well-established constitutional rights of free speech and association. By way of relief, plaintiff requested an injunction prohibiting defendants from hiring another person to fill his position and requiring defendants to expunge all references to the incident from defendants’ records and to make no reference to this incident in connection with employment inquiries. Plaintiff also has requested compensatory and punitive damages and an award of attorney’s fees. (Docket No. 28) Defendants do not controvert the substance of Aumiller’s allegations, but contend that their refusal to renew plaintiff’s contract was justified under all the circumstances and did not infringe his First Amendment rights. A trial was had in the above matter on September 13-17, 1976. Following completion of post-trial briefing and oral argument, it is now ripe for decision. This opinion constitutes the findings of fact and conclusions of law required by Rule 52 of the Federal Rules of Civil Procedure. I. THE FACTS Aumiller first came to the University of Delaware in February 1972, as a graduate student in the Department of Theatre. (Tr. at 7) In 1973, he was employed part-time as an aide to Professor Lawrence Wilker, then Manager of the University Theatre. Dr. Wilker took a leave of absence the following academic year and recommended that Aumiller be hired as his replacement, which in fact occurred. (Tr. at 173-75) Aumiller was rehired for the 1975-76 academic year when Dr. Wilker officially left the University to become permanent director of the Grand Opera House in Wilmington, Delaware. About a month after Aumiller initially arrived at the University of Delaware in 1972, he joined an organization called the Gay Community. Aumiller is himself homosexual in sexual orientation and preference. As a graduate student he held no office in the organization. (Tr. at 9) However, shortly after he became a faculty member in September, 1974, he was asked by members of the Gay Community to serve as their faculty advisor, an invitation which Aumiller accepted. (Tr. at 20) Although the University requires every campus organization to have a faculty advisor, Aumiller’s decision to serve in this capacity was purely voluntary. (Tr. at 22, 88) A. The Sunday Bulletin Article In late May 1975, a reporter from the Philadelphia Bulletin newspaper attended a Gay Community meeting. The reporter explained that he was doing a story on homosexuals in the State of Delaware (the Bulletin publishes a Delaware edition). While at the meeting he asked several questions and took notes. Aumiller had had no prior acquaintance with the reporter. (Tr. at 23-24, 26) The article written by the reporter appeared in the July 1, 1975 Sunday Bulletin under the headline: “Gays Battle Prejudices, Keep Low Profiles.” The article (PX-7) in two instances quoted statements made by Aumiller. It also excerpted a portion of a letter written by Aumiller in his capacity as faculty advisor to the Gay Community, to the United Campus Ministry. (Tr. at 24-25) The article opened with the following italicized quotation: “ ‘ What does teen-age America want to know about homosexuals?’ asks Dick Aumiller, manager of the University of Delaware theater, as he and 20 other Delaware gays drink coffee in the basement of one of the school’s dormitories. “ 'They want to know if we are sick and if we can be cured,’ he adds, relishing every cynical word that rolls off his tongue.” The concluding paragraph again quoted Aumiller: “ ‘Well what if we could all be pupils [sic] for a day?’ Aumiller mused. ‘Maybe we are all in positions of power already. Pass legislation making it legal and we will see if it’s really true.’ ” The article in the Sunday Bulletin came to the attention of President Trabant shortly after its publication. Thereafter, President Trabant mentioned the article to Provost Campbell, suggesting that he contact Aumiller and explain to him that “his private life was his own business, but it had to be private, and if he did anything to cause embarrassment to the University that something would have to be done.” (PX-15) Provost Campbell testified that he asked Assistant Provost Gibson to speak to Aumil-ler, and that Gibson later reported back to him that he had talked to Aumiller, and that he thought Aumiller understood the situation. (Tr. at 678-80) Assistant Provost Gibson denies Provost Campbell ever told him to talk to Aumiller, and further denies later reporting back to Campbell. (Tr. at 242-43) Resolution by the Court of this factual discrepancy is unnecessary, for in any event it is clear that President Tra-bant’s concerns over the first article were never communicated to Aumiller. In August, 1975, one month after the first article had appeared, Aumiller was rehired for the 1975-76 academic term. His contract was signed by or on behalf of the President (Trabant), Provost (Campbell), Dean of the College of Arts and Science (Gouldner), and Chairman of the Department of Theatre (Hansen). (Tr. at 28; see Defendants’ Exhibit (“DX”)-3; DX-4) B. The News Journal Article In October 1975, Ms. Janice deBlieu, a “campus stringer” from the Wilmington News Journal, decided to research a possible article on the Gay Community at the University of Delaware. In order to contact a representative from the Gay Community, she called one of the numbers listed in an advertisement placed by the organization in the campus newspaper, the Review. Unbeknown to her, the number she dialed was the telephone number of Aumiller’s-residence. The person who answered the phone (who was not Aumiller) was unwilling to have his full name appear in a newspaper article on the Gay Community, but suggested that the reporter contact Aumil-ler. (Tr. 385-87) Ms. deBlieu subsequently interviewed Aumiller at his on-campus office in Mitchell Hall, and attended a Gay Community meeting. (Tr. at 34-36, 376-77, 387-88) Following the interview and meeting, Ms. deBlieu twice telephoned Au-miller to ask some additional questions. During the first phone call, Ms. deBlieu also attempted to arrange for a photographer from the newspaper to take plaintiffs picture. Aumiller indicated to her that he was extremely busy, and had no time to pose for pictures during the day. He suggested, however, that if the photographer were present at play rehearsal that evening at the University Theatre, he perhaps could take Aumiller’s picture then. (Tr. at 45) The actual interview and subsequent telephone conversations covered a variety of subjects relating to the Gay Community. Ms. deBlieu also asked Aumiller a number of questions concerning the views of homosexuals on certain issues. In response Au-miller indicated that he could not speak for all homosexuals, but could give only his own views. (Tr. at 54-55, 95-96) Aumiller showed no reluctance in speaking to Ms. deBlieu, nor did he try to discourage her in any way from using his name in the article. (Tr. at 390) Nevertheless, it is clear that the impetus for the article came exclusively from Ms. deBlieu and Aumiller did nothing to seek her out. As discussed more fully infra, the parties differ significantly over the impression the November News Journal article creates in the mind of a reader. What must first be addressed is whether Aumiller intended to create the impression that he was speaking for the University and whether that was Ms. deBlieu’s understanding. Aumiller did not request that he be identified in any particular way in the article, although he knew the reporter was aware of his position as a lecturer and his status as faculty advis- or to the Gay Community. (Tr. at 36, 48) Aumiller also never specifically stated that he was expressing his views as a private citizen, rather than as an official spokesman for the University. (Tr. at 94) Likewise, he did not state that he was speaking on behalf of the University or expressing institutional policy. Aumiller testified that he intended to speak only as an individual, not as a University spokesman, except insofar as his dissemination of information on the Gay Community might constitute part of his responsibilities as the faculty advisor to that group. (Tr. at 44, 94) Aumiller explained that he did not state that he was speaking as an individual because he felt this was so obvious that it did not need to be specifically stated. (Id.) Ms. deBlieu was in no way misled as to the capacity in which Aumiller spoke. She unequivocally testified at her deposition and at trial that she perceived Aumiller to be speaking as a private citizen, not as an official University spokesman. (Tr. at 381, deBlieu Dep. at 30) Thus, both participants in the interview fully agree that Aumiller neither intended to foster nor in fact fostered the impression that he was speaking as an official University spokesman. The Court adopts this as its finding, for defendants have been unable to produce any evidence, other than by reference to the article itself, that Aumiller intended to portray himself as an official spokesman. C. The Review Article In October, 1975, Aumiller was contacted by and spoke with two other reporters who worked for the Review, the student newspaper for the University of Delaware. The reporters, Timothy O’Shea and Gwen Florio, wrote a two part article, the first portion of which appeared on November 4, 1975, and the second three days later on November 7, 1975. Aumiller was not mentioned either directly or indirectly in the second article. The November 4 article (PX-9) dealt generally with the purposes of the Gay Community and the problems the organization had encountered in finding a meeting place. Aumiller was quoted three times in the article. The first quote dealt specifically with the problem in locating a suitable meeting place for the organization: “The organization received official university recognition in 1972 by drafting a constitution and obtaining a faculty sponsor. According to the present faculty advisor, Richard Aumiller, director of the university theatre and summer arts festival, ‘after receiving university recognition, the group continued to meet in private homes because the members preferred the casual, informal atmosphere. But last year, we decided to meet on campus in order to serve those students who don’t have transportation.’ “According to Aumiller, the Gay Community had difficulty finding appropriate space for campus meetings. ‘Classrooms seemed very cold and institutional,’ he said, ‘so eventually we turned to United Campus Ministry (UCM) who had a meeting house on W. Park Place.’ One of the pastors there agreed to the Gay Community’s request and the group began meeting until their advertisements brought their presence to the attention of several congregations who support the UCM. The congregations threatened to withdraw their backing of the institution if gays were allowed to continue meeting there. ‘This placed the UCM in a very embarrassing spot,’ said Aumiller, ‘so they told us to find another place to meet.’ ” The second quotation followed a brief explanation of certain slang terms commonly used by homosexuals: “People in the Gay Community, like other groups, have developed a language of their own. For instance, a ‘Queen’ is an effeminate man, ‘straights’ are heterosexuals, and ‘cruising’ means to go out looking for sex. In addition, much gay speech becomes a humorous satire on the attitude held about them by heterosexual society. Aumiller explained ‘a certain amount of sexual banter is normal. Minority groups tend to indulge themselves in a certain amount of friendly deprecatory humor as a release.’ ” The third and final quote dealt with the evolution of the goals of the organization: “ ‘Originally our efforts were very much concerned with raising our own group consciousness,’ said Aumiller. ‘Now, since we have been successful at that our efforts are concentrated on raising the public’s consciousness.’ ” As in the case of the interview with Ms. deBlieu, Mr. O’Shea testified that Aumil-ler did not specifically state that he was speaking as an individual or faculty advisor to the Gay Community or that he was not speaking as an official University spokesman. (Tr. at 415) Similarly, Mr. O’Shea testified it was very clear to him that Au-miller was speaking as an individual or in some instances as the faculty advisor to the Gay Community, and in no instance was he speaking as an official University spokesman. (Tr. at 415-16) It is concluded Aumiller in speaking with Mr. O’Shea (and Ms. Florio) did not purport to act as a spokesman for the University of Delaware. Rather, he spoke to O’Shea as an individual and, where applicable, as faculty advisor to the Gay Community. The November 2 News Journal article by Ms. deBlieu set in motion a series of events which eventually formed the basis for this litigation. These events perhaps can be analyzed most productively by focusing on the three most demonstrable responses by the administration, especially President Trabant: (1) the meeting between Trabant and Aumiller on November 4, 1975; (2) the decision by Trabant on December 22, 1975, not to sign a new contract for Aumiller if one were presented; (3) the decision by Trabant in May, 1976, to reject Aumiller’s grievance petition. It is important to note at each of these stages the opinions and justifications which form the basis for the decisions taken. Perhaps more significantly, the Court finds clear and specific subtle and not so subtle changes in those justifications as the drama was played out from November, 1975, to May, 1976. D. The Meeting of November 4, 1975 After reading the November 2 News Journal article, President Trabant dictated a letter to Samuel Lenher, a defendant herein and Chairman of the Board of Trustees. (PX-15) That letter, dated November 4, 1975, is set out in full below: “I was shocked to read the article in the Sunday paper about Mr. Aumiller who is employed by the University in the Department of Theatre. Speaking quite frankly, I really don’t care what Mr. Au-miller does in his bedroom, but I consider it an effront [sic] to the University and to me as an individual that he insists in making his bedroom activities public information and a point of evangelistic endeavor to recruit more gays to his supposed cause. “A few months ago there was an article in the paper treating in general the subject of gays in Wilmington. Mr. Au-miller was quoted in the article in which he said he was a gay. At that time I told the Provost to get with Mr. Aumiller to explain that his private life was his own business, but it had to be private and if he did anything to cause embarrassment to the University that something would have to be done. I now find that the Provost failed to carry through with my request. “I feel that something must be done about Mr. Aumiller because he implies that the President knew of his gayness when he was hired. This is not the case. Becoming an advocate and evangelist for gays, he will naturally attract others to the campus to be employed, to hang around or to be students. Therefore, I feel that I have no other choice but to step in as President and attempt to correct the situation. I am told that this is difficult and that if Mr. Aumiller wishes to bring suit that probably it will be quite a cause and that the chances of the courts upholding any action that I take are minimal. Nevertheless, I intend to proceed in the following way. [Emphasis added] “I have scheduled an appointment with Mr. Aumiller. I am going to tell him that as President of the University I am effronted [sic] by his statements and the signs which are in his office; that I had no knowledge that he was a gay when he was hired; that I really don’t care what he does in his bedroom, but when he insists on making public information of it, I find that shocking and of harm to the University. Therefore, his actions and statements must be extremely conservative and that his position at the University will be reviewed at the year’s end to determine whether he will continue in our employ or not. “If you have thoughts and advice on this matter, of course I would be very pleased to receive them.” On the same day Trabant summoned Au-miller to his office to discuss the News Journal interview and article. (Tr. at 579) Although Aumiller was not told the purpose of the November 4 meeting, he surmised the subject matter would be the article. After he had read the article, Aumiller had realized that some people might disagree with his statements and opinions, and that Trabant might take some “heat” as a result of the article. (Tr. at 144, Aumiller Dep. at 77) Trabant indicated at the outset of the meeting that they had something very serious to discuss, and remarked that what Aumiller did in his own bedroom was his business, but when he made it “a matter for the public press, then it unfortunately becomes my business.” (Tr. at 47) Aumiller immediately presented his version of what had occurred. Aumiller stated the article was misleading and inaccurate, adding that he thought it was unscrupulous for so much emphasis to have been placed upon his position at the University. (Tr. at 146-47, 840^41) Au-miller denied that the Gay Community actively campaigns to recruit new members (Tr. at 147), and stated that in talking to the reporter, he had made it clear that only Gibson and Hansen knew he was a homosexual when he was hired. (Tr. at 147) He further added that the “sex in a bathroom” quote was crude and was an unfair amalgam of his remarks. (Tr. at 148) Aumiller also pointed out other statements contained in the article which he felt had been taken out of context. Aumiller concluded by stating that he would not have a sexual relationship with anyone connected with the University, either a student or an employee. (Tr. at 584) When Aumiller finished speaking, Tra-bant advised him they were on a “conflict course” because the majority of Delawareans did not share his views on homosexuality, nor would they in his lifetime. (Tr. at 50) Aumiller asked the President point blank if the President wanted him to stop speaking out. (Tr. at 50-51) The President responded indirectly by saying that Delaware was “like a small pond, and a small wind can raise large waves on a small pond.” (Tr. at 51, 657) Trabant concluded the meeting by stating that Aumiller’s status would be reviewed at mid-year. (Tr. at 584) At this point there is a sharp divergence in the testimony. Trabant testified that as Aumiller was leaving, Aumiller said there was a “problem” because he had granted other interviews on the subject of homosexuality. (Tr. at 333, 584) Trabant agreed that this was a serious problem, and told Aumiller it cast doubt on the credibility of his opening remarks to the effect that the News Journal reporter had mislead and taken advantage of him. Trabant advised Aumiller to contact the reporter and attempt to prevent publication of the interview. (Tr. at 333-34, 584-85) Aumiller stated no such conversation took place. He testified that the Review article was supposed to have been printed the prior week and when it did not appear, he assumed a decision had been made not to print it. (Tr. at 58; see Tr. at 416) When he returned to his office following the conference with Trabant, Aumiller’s secretary was holding a copy of the Review article. (Tr. at 56) Thereafter, Aumiller conferred with Assistant Provost Gibson about the meeting. Gibson informed him that such a meeting with the President was extremely unusual and was indicative of a very serious matter. He advised Aumiller that he should grant no more interviews. Aumiller informed Gibson a few days later that he had decided to follow Gibson’s advice. (Tr. at 65-68) On November 8 or 9, after returning from an out of town trip, Trabant read the article in the November 4 Review article in which Aumiller had been quoted. (Tr. at 585) In summary, the Court finds that in light of the letter to Lenher and the conversation with Aumiller, as of November 4, 1975, three major themes guided Trabant’s response to the July Bulletin and November News Journal articles: (1) his concern that Aumiller’s “evangelistic endeavor” would attract homosexuals, both students and others, to the campus; (2) his concern that Aumiller’s statements would cause “harm and embarrassment” to the University; (3) his belief that Aumiller’s statements were “shocking” and an “effront” [sic] to him, personally, and to the University. E. The Decision Not to Renew Aumil-ler’s Contract At a meeting with Provost Campbell on December 10, 1975, little more than one month after the meeting with Aumiller, President Trabant told the Provost that he would not sign a contract for Aumiller for the 1976-77 academic term, if' one were presented to him. (Tr. at 274-75, 682) On the following day the Provost related to Dean Gouldner the statement of President Trabant and gave as the reason for the decision the fact that “Aumiller had placed himself in a position of advocacy of the homosexual lifestyle for the undergraduate.” (Tr. at 683) At a December 16 meeting among President Trabant, Provost Campbell and Dean Gouldner, Trabant reaffirmed his decision giving as his reason that Aumiller had placed himself in a “position of advocating a homosexual lifestyle for the undergraduate, that it would be confusing to a number of our undergraduates, and that in his opinion he had crossed over the area, that gray area between what one can say and what one cannot say in the academic community using one’s position as a faculty member.” (Tr. at 685) Thereafter, a conference was held on December 22, 1975, attended by Dr. Hansen, Dean Gouldner, Provost Campbell and President Trabant. Hansen, who opposed the President’s decision, inquired about the sufficiency of the evidence that Aumiller’s job performance had been affected. Trabant indicated that the issue at hand was not Aumiller’s job performance, but that Au-miller had placed himself in a position of advocating “a homosexual lifestyle [for] the undergraduate and that he had used his position as a faculty member to expound this particular point of view and that this was not appropriate for him to do so.” (Tr. at 689) When Trabant did not waiver from his decision, Provost Campbell renewed his suggestion that some alternate way to accomplish the same end be selected, i. e., a budgetary reason for not renewing Aumiller’s contract. (Tr. at 359-60; Tra-bant Dep. 55-56) To his credit, President Trabant would not accede in this, indicating that he had no desire to disguise the “true reason” for his decision. (Tr. at 359-60, 731) Thus, by December 22, 1975, Trabant had made his decision not to renew Aumiller’s contract, if it were presented for his signature. If one compares the statements made by Trabant at his November 4 meeting with the reasons presented in December, there is a striking change in the focus of Trabant’s concerns. Most obvious is the absence of any reference at the December meetings to the purported affront to the University and to Trabant by the newspaper articles. What previously had elicited such a strong reaction from Trabant in November apparently had faded into relative unimportance. Instead, primary emphasis was placed on the thesis that Aumiller had advocated experimentation with homosexuality for non-homosexual undergraduates (Tr. at 318-19) and therefore should not be rehired. The question of the legal sufficiency of Tra-bant’s concerns is discussed infra, but the Court would be remiss if it did not comment on one of the President’s conclusions. I cannot find a scintilla of evidence in any of the newspaper articles to support the inference that Aumiller was on a campaign to convert heterosexuals to homosexuality. The obvious and overwhelming point repeatedly made by Aumiller in the articles was the need to improve the understanding and acceptance of homosexuals by society at large. The only statements that even remotely relate to Trabant’s thesis are those suggesting that persons who have homosexual tendencies better serve themselves by admitting it to themselves and discussing it with others. It is also important to keep in mind that between November 4 and December 22 the only additional information about Aumiller received by Trabant was the article in the campus newspaper discussed above. On January 5, 1976, Hansen orally advised Aumiller of Trabant’s decision. (Tr. at 72) The following day Hansen furnished Aumiller with a letter (PX-16) stating in part: “Dr. E. A. Trabant, President of the University of Delaware, has requested that I advise you of the following: Your present contract will not be renewed for the 1976-77 academic year.” Oh January 12, 1976, Trabant was contacted by a reporter from the News Journal about his decision not to renew Aumiller’s contract. (Tr. at 603; PX-11) The following day an article appeared in the Morning News on Trabant’s decision (PX-11), in which Trabant is quoted as giving the following explanation for his decision: “ ‘The University does not normally comment on why contracts are not renewed. But to pretend to say that [the advocacy of homosexuality] was not the reason is wrong. “ ‘He placed himself in a position of encouraging, condoning and sanctioning homosexuality for the undergraduate . . ..' “ ‘When young students come to the University they may be unacquainted with various modes of sexual behavior. If they become mislead, thinking the university condones this, they are in error. “ ‘He has placed himself in a position of advocacy, and as President of this institution, I have to make it clear we don’t encourage that. This will clarify our stand. If it goes to court, the issue will be further clarified.’ “ ‘As an individual, I do not advocate homosexuality, and as an individual, I resent the bedroom behavior of university employees or others being portrayed in the public press. . . .’” F. The Grievance Proceeding In January 1976, Aumiller filed a three-part grievance under the Collective Bargaining Agreement between the University of Delaware and the Delaware Chapter of the American Association of University Professors (AAUP). He contended: (1) that the University was required to provide him with notice of non-renewal no later than December 15, 1975; (2) that Hansen’s letter of January 6,1976 was insufficient in its form because the University was required to give him a statement of reasons for the non-renewal; and (3) that the reasons for non-renewal violated the University’s policy on “academic freedom” as set forth in the Faculty Handbook. (See PX-23) On March 12, 1976, following extensive hearings on the Aumiller grievance, the University’s Arts and Science Senate Committee on Academic Freedom and Responsibility ruled in Aumiller’s favor on all three grievances and recommended that he be given a one-year contract for the 1976-77 academic year, as well as a contract for the 1976 Summer Festival of the Arts. (PX-23) Pursuant to the established grievance procedure, the faculty Committee’s recommendation was forwarded to Dean Gould-ner. In a written decision dated March 23, 1976, Gouldner expressed her disagreement with the Committee’s findings, but nonetheless accepted its recommendation. Upon recommendation of the Department of The-atre, she signed a one-year appointment for Aumiller and a contract for the 1976 Summer Festival of the Arts. However, since this would have left Aumiller’s status unsettled, she appealed the Committee’s decision to the next level in the grievance procedure, the Provost. (PX-24) In a written decision dated April 9, 1976, Provost Campbell held that all three grievances were without merit. (PX-28) In regard to Aumiller’s grievance on the alleged violation of the University’s academic freedom policy, Campbell stated: “It is my judgment that Mr. Aumiller should have taken appropriate steps to correct or clarify the alleged misquotations and misrepresentations attributed to him and to have pointed out in unambiguous terms that in the interviews he was speaking as an individual and not as a University spokesman. His failure to do so is clearly not in keeping with the statement on academic freedom contained in the Faculty Handbook. . . . ” Aumiller appealed Campbell’s decision to the next level in the grievance process, the University Appeals Committee. The University Appeals Committee concurred with the Senate Committee, ruled in Aumiller’s favor on all three grievances and recommended Aumiller’s reappointment for the 1976-77 school year. (PX-29) The final step in the grievance process is the President of the University. The decision of the University Appeals Committee is only advisory to the President. President Trabant rejected the recommendation of the Appeals Committee and denied Aumil-ler’s three grievances in a written decision dated May 24, 1976. (PX-30) After explaining why he did not feel that Aumiller’s statements were covered by the principle of academic freedom, he opined that even if this were the case, Aumiller’s actions were improper: “Based upon all the evidence available to me, it is my opinion that Mr. Aumiller, through his actions and statements, indicated erroneously that the University . condones and sanctions homosexuality for undergraduates. As a private citizen, Mr. Aumiller has the right to advocate unpopular and controversial causes. But he has no right to use his position at the University to foster and promote what most Americans and most Delawareans consider an aberrant lifestyle. “Turning to the Committee’s other findings, I cannot agree that Mr. Aumil-ler made it clear on his interviews with the press that he was speaking as a private citizen. The published articles do not contain statements to that effect and instead highlight Mr. Aumiller’s position at the University. Moreover, the statements attributed to Mr. Aumiller clearly imply that the University condones a homosexual lifestyle and endeavors to provide a hospitable atmosphere for homosexuals. “Finally, I cannot agree that Mr. Au-miller initiated adequate measures to correct what he contends were errors in the article in the Wilmington Sunday News Journal, of November 2, 1975. Mr. Au-miller brought some of these alleged errors to the attention of the reporter only when she contacted him more than two months after the publication of the article to solicit his response to my position concerning renewal of his contract. “I recognize and respect the free speech rights of a faculty member as guaranteed by the First Amendment. Clearly, a faculty member should exercise his rights as a citizen, but in doing so he should be mindful of the interests of the University in maintaining public confidence in its ability to carry out the public duties which have been entrusted to it. In my opinion, Mr. Aumiller’s actions and statements reflected adversely upon the University and tended to bring discredit to it.” At trial Trabant testified that two additional factors were considered by him at this juncture, both of which were the product of this litigation The first was Ms. deBlieu’s certainty in her deposition of April 23, 1976 that there were no errors in the quotes in the News Journal article and that Aumiller failed to state specifically that he was not speaking on behalf of the University. (Tr. at 591-92) The second factor concerned Aumiller’s living arrangements and came to light during Aumiller’s deposition in which he testified that he shared a house with two undergraduate students, both of whom were in the Department of Theatre, and one of whom was homosexual. (Tr. at 592-93) Trabant’s decision was considered and approved by the Board of Trustees on May 27, 1976. (Tr. at 489; Defendant’s Pre-Trial Brief at 16) During this period from December 22 to May 27, the substantive rationale for the refusal to renew Aumiller’s contract became more clearly defined and more precisely articulated. Review of various letters written by Trabant in January and February, 1976, to persons who opposed his decision (PX 17-21) and his written decision of May 24, 1976, demonstrates that by late January, 1976, the “advocacy” thesis used in the December meeting had been refined. These items reflect a distinct shift away from condemning Aumiller’s merely making public his views and lifestyle and instead they concentrate on the use of his position as a member of the faculty in the service of a partisan cause. The fundamental theme of Trabant’s May 24 decision on Aumiller’s grievance was that Aumiller abused his faculty position by granting newspaper interviews without expressly disavowing institutional authority. As a result, according to Tra-bant, readers were given the misleading impression that the University approves of a homosexual lifestyle. Further, Aumiller was able to use the stature and respect of the University to promote a personal cause. This justification also was articulated at trial by the President as the primary basis for his decision not to renew. The Court has carefully reviewed the. three newspaper articles which galvanized the President and other University officials into the actions at issue here. It is this Court’s finding that there are only two places in the articles that provide any support for the inference President Trabant apparently feels is so inescapable. First, in each of the articles, Aumiller is identified as a lecturer and/or faculty ad-visor to the Gay Community. But there is no statement by the interviewers or Aumil-ler that he is in any way speaking for the University. It has already been noted that in the specific cases of the November News Journal article and the Review article, that Aumiller did not intend and Ms. deBlieu and Mr. O’Shea did not believe that he was speaking for anyone other than himself, and at times, the Gay Community organization. Similarly, this Court finds that the most reasonable inference gained from reading all of the articles is that Aumiller was speaking as an individual and in specific instances, as a faculty advisor. In the context of the three articles, this Court finds meritless the contention that the mere identification of his position connotes University approval of whatever the lecturer says. Indeed, a reader is more likely to infer University approval of homosexuality from the University’s official recognition of the Gay Community as a campus organization which is mentioned in the campus newspaper article. The only other statement in any of the articles that can be construed as indicating University support of homosexuality is the assertion in the November News Journal article that “University officials knew Au-miller was gay when they hired him last fall.” The reference to “last fall” can be understood to mean either the fall of 1975 when Aumiller’s contract was renewed or the fall of 1974 when he was hired initially. If one adopts the former, then the statement in the News Journal article is true as to all the major administrators, for the Bulletin article publicizing Aumiller’s homosexuality appeared in July, 1975. The likelier interpretation, and the one this Court adopts, is that “last fall” meant 1974, when he was first hired. The record is clear and uncontroverted that Hansen and Gibson were aware of his homosexuality in August, 1974, when he was hired; Trabant and other administrators did not know. Thus, to the extent one can construe the phrase “University officials” to include Trabant, Campbell, and others, the phrase is misleading. Trabant, however, apparently also concluded that this inaccuracy creates the inference of University support and approval of homosexuality and misrepresents University policy. The Court disagrees for two reasons. First, in the very next sentence Aumiller explains that by hiring him, the University demonstrated its willingness to treat him equally and not to assume that his sexual preference had an adverse effect on his work. Thus, Aumiller himself made clear that he interpreted the decision to hire him not as an endorsement of homosexuality, but rather as a concrete expression of “neutrality.” Second, at trial, Trabant conceded that the plaintiff was not dismissed because of his homosexuality. (Tr. at 357) Nor does the record suggest that Aumiller would not have been hired if Trabant and others, in addition to Hansen and Gibson, had known he is a homosexual. Accordingly, this Court concludes that while the statement in the News Journal article is not as accurate as one would prefer as to who actually knew of Aumiller’s homosexuality in August, 1974, it does not misrepresent what the policy of the University appears to be: to treat faculty applicants who are homosexuals the same as any other applicants. Accordingly, this Court finds nothing in these newspaper articles to support the contention of the defendants that Aumiller abused his position at the University to create the inference that the University fully supported and encouraged those who adopt a homosexual lifestyle. The clear emphasis in each article is on an examination of how homosexuals adapt to life in a predominately heterosexual society. Au-miller appears as one example of a homosexual and his statements are directed towards educating readers of the article to an acceptance of homosexuals as equals and to the demythologization of certain stereotypes commonly applied to homosexuals. The articles simply do not support the inferences suggested by the defendants. Prior to addressing the merits of Aumil-ler’s claim, two subsidiary matters must be resolved. The first involves ruling on evi-dentiary objections lodged at trial and argued in the post-trial briefs. The second concerns testimony presented at trial by two expert witnesses relating to homosexuality. II. EVIDENTIARY RULINGS A. Defendants’ Evidentiary Objections At trial, defendants objected to eight of the exhibits offered by plaintiff and subsequently pursued their objections in their post-trial brief. These objections will be discussed seriatim. Defendants first object to the admission of the Hansen deposition (PX-4) as hearsay. Although Dr. Hansen’s sympathies may have been with the plaintiff, as a party defendant, his deposition testimony constitutes an admission, see F.R.Evid. 801(d)(2), and accordingly is admissible. Defendants next seek to bar as irrelevant the admission of PX-6, copies of the AAUP Statement of Principles and Interpretive Comments, and Statement on Extramural Utterances. Since the University of Delaware has not adopted this Statement of Principles (Tr. at 616), and the Statement of Principles does not supplant governing constitutional strictures, defendants’ objection to PX-6 is sustained. PX-18, PX-20 and PX-21 are all copies of letters opposing the University’s decision sent to either Trabant or Lenher (“complaint letters”), accompanied in each case by a reply letter. The reply letters, authored by Trabant or Lenher, are clearly admissible as admissions, F.R.Evid. 801(d)(2) and defendants apparently have not objected to them. The defendants do contend that the complaint letters which spawned the replies are irrelevant and constitute inadmissible hearsay. The hearsay objection is inapposite because the letters are not being admitted for the truth of the matter asserted, see F.R.Evid. 801(c). Further, the letters are relevant at least for the limited purpose of placing the reply letters in proper context. Accordingly, PX-18, PX-20 and PX-21 are admitted. PX-22 is a letter from a member of the University of Delaware Administration to Lenher with an accompanying letter from students to members of the Board of Trustees in support of Aumiller. Both letters are inadmissible hearsay. Defendants next object on relevant grounds to the admission of PX-32, an “Open Letter” appearing in the News Journal on January 7, 1975 and signed by eighteen University faculty members denominated as “Concerned Faculty for Free Press.” The Court finds this exhibit relevant to the question of the manner in which faculty at the University identify themselves when making public statements. It is therefore admissible. Defendants finally object to PX-34, a copy of an article appearing in the Philadelphia Inquirer on the Aumiller non-renewal sent to Trabant on which were written obscene and scatological remarks. Although the comments of the sender clearly are not relevant, the Court holds the exhibit admissible as probative of the extent of written “reaction” to Trabant’s decision. B. Expert Witness Testimony At trial, both parties presented expert witness testimony relating to the etiology of homosexuality and its psychological implications. The testimony of the two men was for the most part not inconsistent. However, at trial, I indicated that I was very uncertain that the medical testimony was in any way relevant to the constitutional questions herein presented. (Tr. at 852-53) In their post-trial brief defendants contended that the medical testimony was relevant to the question of possible harm to students, if they were misled into believing that the University encouraged the adoption of a homosexual lifestyle for undergraduates. The condition precedent to the Court’s consideration of the testimony concerning potential harm to students is a finding that Aumiller willfully or recklessly created the false impression that the University encouraged undergraduate students to adopt a homosexual lifestyle. See generally Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). As indicated more fully infra, defendants have failed to establish this fact. The mere assertion of a generalized, theoretical fear of adverse consequences inuring to students is insufficient to justify consideration of this evidence. As the Fourth Circuit explained in rejecting Virginia Commonwealth University’s argument that it would deny registration as a student organization to the Gay Alliance of Students on grounds that affiliation with a homosexual activist organization may have adverse consequences to some individuals involved: “We are not impressed by this purported reason. The very essence of the first amendment is that each individual makes his own decision as to whether joining an organization would be harmful to him, and whether any countervailing benefits outweigh the potential harm. We are aware that in recent years colleges and universities increasingly are voluntarily surrendering the role of parens patriae of their students which they formally occupied. But even if not surrendered voluntarily, the state and its agents are forbidden from usurping the students’ right to choose. In this respect, the governing bodies of schools have no greater authority than do state officials. [Citations omitted.] As the Supreme Court noted in [Healy v. James, 408 U.S. 169, [92 S.Ct. 2338, 33 L.Ed.2d 266] (1972)], a state college or university ‘may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.’ [408 U.S. at 187-88, 92 S.Ct. at 2349] Similarly, VCU [Virginia Commonwealth University] may not hinder the exercise of first amendment rights simply because it feels that exposure to a given group’s ideas may be somehow harmful to certain students.” Gay Alliance of Students v. Matthews, 544 F.2d 162, 165-66 (4th Cir. 1976). Accordingly, the Court declines to consider the expert testimony proffered on this point. III. AUMILLER’S RIGHT TO FREEDOM OF EXPRESSION A. The Applicable Standard There can be little dispute that the decision not to renew Aumiller’s contract was precipitated primarily by the three newspaper articles and the circumstances surrounding their publication. Accordingly, the proper framework for evaluating whether defendants’ actions violated Au-miller’s constitutional rights is to examine what limitation, if any, the University of Delaware may impose on the exercise of its employees’ First Amendment rights. The principal Supreme Court decision on the issue of a teacher’s right to freedom of expression is Pickering v. Board of Educ., supra. In Pickering, a public high school teacher was dismissed because he wrote a letter to the local newspaper critical of the local school board, which school authorities claimed contained a number of false statements. The Court held that the dismissal was improper and violated the plaintiff’s First Amendment right to freedom of expression. While recognizing that teachers do not, by virtue of their employment, surrender their rights as citizens to comment on matters of public concern, the Court did note that: “At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (391 U.S. at 568, 88 S.Ct. at 1734-1735) Although denominated as a balancing process, a close reading of Pickering reveals that the Supreme Court imposed rather specific limitations on the manner in which the so-called balancing was to occur. Where the statements can be shown or presumed to impede the teacher’s proper performance of his daily duties in the classroom; to have substantially disrupted the regular operation of the school generally; to have violated an express need for confidentiality, or where “the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship . . ." 391 U.S. at 570 n. 3, 88 S.Ct. at 1735, the interest of the school administration in limiting the teachers’ contribution to public debate generally will outweigh the individual teacher’s interest in commenting upon matters of public concern. However, where none of these enumerated factors is present, the Court indicated that the interest of the state is not significantly greater than its interest in limiting a similar contribution by any member of the general public, and absent proof of false statements knowingly or recklessly made by the teacher, cf. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a teacher’s exercise of his right to speak out on issues of public importance may not furnish the basis for his dismissal from public employment. Defendants have called to the Court’s attention two decisions which appear to bear specifically on the question of a public employer’s right to freedom of discussion in the specific context of homosexuality and societal treatment of homosexuals. The first decision advanced by defendants is McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1312, 31 L.Ed.2d 588 (1972). In McConnell, the Eighth Circuit upheld the refusal by a state university (the University of Minnesota) to hire an applicant for the position of cataloguer at the University library. The Court emphasized that the University’s refusal was not based merely on the homosexual propensities of the applicant or his desire clandestinely to pursue homosexual conduct. Rather, the refusal properly was based on the applicant’s assertion of a right to pursue an activist role in implementing “unconventional ideas concerning the societal status to be accorded homosexuals . .’’as evidenced, inter alia, by his application to marry another male, and thereby to “foist tacit approval of this socially repugnant concept [homosexuality] upon his employer, who is, in this instance, an institution of higher learning.” 451 F.2d at 196. Defendants secondly cite Singer v. United States Civil Service Comm’n, 530 F.2d 247 (9th Cir. 1976), vacated and remanded, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 744 (1977), in which the Ninth Circuit upheld the dismissal of a probationary employee (clerk-typist) of the Equal Employment Opportunity Commission on grounds of “immoral and notoriously disgraceful conduct,” 530 F.2d at 250, in that he openly flaunted his homosexual way of life, had sought a marriage license with another man, and indicated further continuance of such activities while identifying himself as an employee of a federal agency. The Ninth Circuit held that the Civil Service Commission (“CSC”) rationally could conclude that public knowledge that the government employed a homosexual employee “ ‘reflects discredit upon the Federal Government as his employer, impeding the efficiency of the service by lessening public confidence in the fitness of the Government to conduct the public business with which it was entrusted.’ ” 530 F.2d at 255. The Court does not view either McConnell or Singer as limiting or otherwise affecting the applicability of the principles enunciated in Pickering, supra, to the case sub judice. First, the facts of the present case vary considerably from those present in Singer and McConnell. The plaintiffs in those cases both appeared to engage in certain activities for the express purpose of generating publicity or notoriety. Aumil-ler, by contrast, never engaged in comparable public conduct such as applying for a marriage license, kissing a man in public, or participating in homosexual demonstrations. Aumiller never set out to generate publicity, but was sought out by reporters desiring information about the Gay Community. Although he accommodated them by answering their questions and permitting his name to appear in the articles, this is a far cry from the type of activity engaged in by either McConnell or Singer. Second, both decisions are distinguishable. The holding of McConnell is inapposite because the lower court never reached plaintiff’s First Amendment claim. 316 F.Supp. at 815. As a consequence, it was treated only cryptically in a footnote by the Eighth Circuit, 451 F.2d 196, n. 7. The continuing vitality of Singer is questionable because it was vacated and remanded by the Supreme Court, based on the Solicitor General’s suggestion that the action of the CSC should be reconsidered in light of recently adopted changes in the Civil Service Personnel Manual which greatly restricted the ability of the CSC to base employment decisions on considerations of homosexuality. Defendants contend that because the remand was essentially on a procedural ground, the basic reasoning of the Ninth Circuit’s decision remains unaffected. That position is untenable because the very fact of the change in CSC employment policy undermines the factual basis of the Ninth Circuit’s decision: that public awareness of a government employee’s homosexuality in and of itself adversely affects the ability of the government to perform its necessary functions. B. The Present Case Defendants have made no attempt to show that Aumiller’s performance of his daily duties was impeded or that his statements breached an express need for confidentiality, and have made at best a half-hearted effort to show that there was a substantial disruption of the University as a result of Aumiller’s statements. Defendants point primarily to the time Dr. Trabant reportedly devoted to the matter and the disruption of his normal schedule. To the extent some of his time was allotted to responding to phone calls and letters on the Aumiller matter, it is legally insufficient to constitute the type and magnitude of disruption envisioned by the Supreme Court in Pickering, supra. As far as the operation of the University as an institution is concerned, I find that no disruption arose from any of the articles. In addition, a number of individual defendants, including Trabant, testified that they could work with the plaintiff if he were reinstated, which undercuts any argument that the efficient and harmonious work relations at the University were impaired by Aumiller’s statements, see Pickering, supra; Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1977), cert. denied, - U.S. -, 97 S.Ct. 2649, 52 L.Ed.2d 255 (1977), and further minimizes the seriousness of any disruptive effect purportedly resulting from his statements. Since the defendants have been unable to demonstrate that any of the previously discussed Pickering criteria apply, it is concluded that the interests of the University in regulating Aumiller’s right of free speech are no greater than the interest of the State in regulating any citizen’s free speech. Accordingly, only if the defendants can show that Aumiller willfully or recklessly made false statements can they prevail on the question of whether their actions violated Aumiller’s right to freedom of expression. In order to evaluate the facts under the Pickering standard, it is first necessary to ascertain when the actual decision not to renew Aumiller’s contract was made. I conclude that for purposes of the sole cause of action in this litigation Trabant made a firm decision not to renew Aumiller’s contract no later than the December 22, 1975 meeting attended by Trabant, Campbell, Gouldner and Hansen. This conclusion rejects the contention that a final decision was not reached until May, 1976, when the Board of Trustees ratified Trabant’s rejection of Aumiller’s three grievances. Defendants have gone to great lengths to attempt to convince the Court that the December 22 decision entailed nothing more than a determination by Trabant that he would not sign a contract for Aumiller if one were presented to him ; but that this was not effectively a binding decision by the University not to renew Aumiller’s contract. There can be little doubt, however, that in fact Trabant’s decision did constitute a decision by the University not to rehire Aumiller for the 1976-77 academic term. Defendants were unable to point to even a single instance in the past history of the University where a contract had been signed by the Board of Trustees which had not been signed by the President of the University. As noted earlier, during the-course of events that led up to this litigation, the defendants seem to have changed the reasons or at least the priority of reasons on which they relied to refuse to renew Aumiller’s contract. Therefore, instead of examining the specific, articulated reasons, attention first will be turned to the factual information available to the defendants on December 22, 1975. That is, the Court has scrutinized the record as of December 22 to determine the facts on which the defendants could have based their decision. The conclusion is that four factors arguably provided a basis for the decision not to renew the contract: (1) Aumiller’s identification in the newspaper articles; (2) Aumiller’s alleged false statements in the articles; (3) Aumiller’s use of University facilities; and (4) a sign in Aumiller’s office and the criticism of two University plays. 1. Aumiller’s Identification in the Newspaper Articles The first factor was the manner in which Aumiller was identified in the three articles: either as director of the University Theatre and/or faculty advisor to the Gay Community. Defendants have contended that these institutional associations, coupled with the absence of a “disclaimer” that the views Aumiller was expressing were his own and not those of the University of Delaware, indicate that Aumiller intentionally or recklessly attempted to create the false impression that he was acting as a University spokesman. No significance is attached to the mere fact that Aumiller was identified by one of his official University titles and as advisor to the Gay Community. The University does not prohibit faculty members from using their official titles as a form of public identification. Moreover, there is no support for defendants’ insinuation that Aumil-ler authorized or desired identification in this manner. Aumiller never requested that he be identified in this capacity, although he was aware that Ms. deBlieu and Mr. O’Shea knew his official position. It was exclusively a matter of the reporters’ choice. Defendants’ suggestion that Aumiller deliberately attempted to create the false impression that he was speaking on behalf of the University must be rejected based on the Court’s previous express factual finding that Aumiller was not attempting to speak as a University spokesman. The testimony of both Ms. deBlieu and Mr. O’Shea (the two individuals whose testimony should be the most reliable in this regard) left no doubt as to the capacity in which Aumiller was speaking. If plaintiff were deliberately attempting to suggest that the University supported his position, he failed miserably with the two reporters. Defendants further contend that Aumil-ler recklessly created the false impression of University authority by his failure to expressly disclaim such authority or to demand a clarification after the articles were published. Whether this inaction by Au-miller meets the recklessness standard of Pickering is questionable. In any event, a fair reading of the three articles demonstrates the absence of any legitimate basis for interpreting the articles to imply that Aumiller was speaking on behalf of the University or that the University “endorsed” the views or positions he expressed. In the Bulletin and Review articles, his few statements simply are not susceptible to association in any way with University policy. In the case of the News Journal article, which more extensively focuses on Aumil-ler’s views, his opinions generally are prefaced by the qualification “I think.” The article as a whole presents factual information about the Gay Community and Aumil-ler’s personal views on the manner in which homosexuals should be treated by society. It requires a substantial leap of imagination to infer from the article Universit