Full opinion text
ORDER DEVINE, Senior District Judge. Plaintiff J. Donald Silva, an Instructor of Communications at the Thompson School of Applied Science at the University of New Hampshire (UNH or the University) and a tenured member of the UNH faculty, brings this action pursuant to 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. §§ 1983 and 1988, and New Hampshire law, against defendants UNH; Dale Nitzschke, President of UNH; Dr. Brian A. Giles, Director of the Thompson School; Neil B. Lubow, Associate Vice President for Academic Affairs at UNH; Mary M. Clark, Professor of English at UNH and member and chair of the UNH Sexual Harassment Appeals Board which adjudicated Silva’s case (“Appeals Board”); Elizabeth Dolan, Associate Professor at UNH and member of the Appeals Board; Stephen Fink, Professor at UNH and member of the Appeals Board; and Shannon Cannon and John Denning, students at UNH and members of the Appeals Board. Silva seeks (1) a declaratory judgment that the defendants’ conduct violates his right to freedom of speech under the First and Fourteenth Amendments; (2) a declaratory judgment that the defendants’ conduct denies Silva his civil rights under color of state law in violation of section 1983; (3) a permanent order enjoining defendants from acting to prevent Silva from teaching at UNH or from otherwise punishing him on the basis of protected speech; (4) damages under section 1983 for the alleged violation of Silva’s First Amendment right to freedom of speech and his Fourteenth Amendment right to due process; (5) damages under New Hampshire law based on allegations of breach of contract and breach of a contractual duty of good faith and fair dealing; and (6) an award of reasonable costs and attorneys’ fees pursuant to section 1988. Presently before the court are plaintiffs motion for a preliminary injunction, to which defendants object, and defendants’ motion for summary judgment, to which plaintiff objects. An evidentiary hearing on plaintiffs motion for a preliminary injunction was held on September 12, 1994. At said hearing, the parties each made offers of proof based on the voluminous record before the court on defendants’ motion for summary judgment. In addition, Silva and defendant Lubow testified at said hearing. Factual Background The University System of New Hampshire [USNH] Sexual Harassment Policy states: SEXUAL HARASSMENT All faculty, staff and students have a right to work in an environment free of discrimination, including freedom from sexual harassment. It is the policy of the University System of New Hampshire that no member of the University System community may sexually harass another. The intent of this policy is not to create a climate of fear but to foster responsible behavior in a working environment free of discrimination. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when: —such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a hostile or offensive working or academic environment. —submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting that individual. —submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic work. (Section 1604.11 of the EEOC’s Guidelines on Sexual Discrimination) Examples of conduct which may, if continued or repeated, constitute sexual harassment are: —unwelcome sexual propositions —-graphic comments about a person’s body —sexually suggestive objects or pictures in the workplace —sexually degrading words to describe a person —derogatory or sexually explicit statements about an actual or supposed sexual relationship —unwelcome touching, patting, pinching or leering —derogatory gender-based humor Such conduct whether intended or not constitutes sexual harassment and is illegal under both State and Federal law. Violations of this policy will not be permitted. Any faculty, staff or student who violates this policy will be subject to discipline up to and including dismissal. Plaintiffs Memorandum of Law in Opposition to Summary Judgment, Exhibit 1 (Affidavit of John E. Mulhem, Jr.), Enclosure #3. In February of 1992, Silva was teaching a course in technical writing entitled Communications 212. The course is designed to train students to develop skills in technical reporting. In describing his pedagogical approach during the first class session at issue, Silva states, I compared focusing the thesis statement of a technical report with the sexual relationships between persons and how familiarity and experience are part of the communication, if focus is to occur. This comparison was on an intellectual plane and the purpose was to relate an abstract concept to everyday experiences most students are familiar with____ Focusing is the second stage of the writing process after collecting information. Focusing on the central idea of a long technical report is a complex task for freshm[e]n in their second semester. The relationship of the writer to her subject must have intimacy and proximity similar to the sexual relationship between people. Focusing requires the same long probation, adjustment, centering, a back and forth, give and take relationship until the writer and the subject are connected and fused as one. The experience is the writer, the writer is the experience. It is only as every aspect of the technical writing situation is united and connected that it can be said to have a focus. The traditional definition is to say, the report has a thesis statement, but focus is much more than an abstraction at this stage of the process. Focus objectifies the personal experience, the act of fusion into language of the careful observations made by the writer. Letter of April 30,1992, from J. Donald Silva to Dr. Brian Giles at 2 (Silva Deposition, Exhibit 7). On February 24, 1992, Silva made the following statement to his technical writing class, I will put focus in terms of sex, so you can better understand it. Focus is like sex. You seek a target. You zero in on your subject. You move from side to side. You close in on the subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one. Complaint at 8. Two days later, during the second technical writing class session at issue, Silva employed the following pedagogical approach. I used Little Egypt’s definition of belly dancing to illustrate how a good definition combines a general classification (belly dancing) with concrete specifics in a metaphor (like jello shimmying on a plate) to bring home clearly the meaning to one who wishes to learn this form of ethnic dancing. Silva’s April 30 Letter to Giles, supra, at 1. Specifically, Silva stated to his class, “Belly dancing is like jello on a plate with a vibrator under the plate.” Complaint at 8. Silva explains, I used the definition to catch the attention of my class to gain their attention when they did not comprehend the explanation____ Little Egypt’s definition of belly dancing is classic in its use of concrete differentia and simple metaphor, i.e. the trembling jello equates to the essential movements necessary to the dance. It is unlike the dance but also its very essence. The intellectual task was to increase the student’s understanding of definition and apply it in her own attempts to define concepts in her technical report, using the simple example as a model. Silva’s April 30 Letter to Giles, supra, at 1-2. At the preliminary injunction hearing, Silva testified that he does not understand the relationship between the USNH Sexual Harassment Policy and the remarks he made in class. In his affidavit, Silva states, “I had used both examples in my classes on numerous prior occasions without incident, the Little Egypt simile since the early 1970’s. I considered both illustrations to have legitimate pedagogical goals.” Silva Affidavit at 2. Further, at his deposition, Silva engaged in the following exchange with defendants’ counsel. Q Now, you’ve said a number of times that you’ve used Little Egypt’s belly dancing/Jello vibrator statement— A Definition. Q —In your classroom for fourteen years? A Yes, I’ve used it just about every year. Not necessarily every section of every class. At that particular time — I used it in that one section and I had two other sections but I did not use that definition---- I picked it up in 1972 and— Q And how about the analogy of focus to sex; how many times had you used that in your classroom in the past? A Well, you know, I really can’t recall exactly. I do know the first time I read it, something like that, was an interview with Ernest Hemingway [in] either the Paris Review or the Patern Review just before he died in the early sixties, ’60 or ’61. And then I read it further — I read it further with David Bartholomew — I think that’s his name — who writes for The New Yorker magazine, he said a similar thing. And then another place where I read it was Ray Bradbury, the science writer, said practically exactly the same thing. Silva Deposition at 212-13. On the date of the belly dancing statement, six students from Silva’s technical writing class met with Dr. Jerilee A. Zezula, an Associate Professor of Applied Animal Science at the Thompson School, to complain about Silva’s classroom statements. Dr. Zezula’s description of this meeting is in a three-page document dated February 26, 1992, entitled “Investigation: Dr. Jerilee A. Zezula.” Silva Deposition, Exhibit 2-A; Silva Affidavit, Exhibit 23. The Zezula document states in part: 9:40 am Six women Animal Science students came to my office and asked if they could speak to me. They closed the door and told me some of the things that were being said in Professor Silva’s technical writing class. They described how he described a “belly dancer” as being like a bowl of jello being stimulated by a vibrator, and how he used a vivid description of intercourse as an example of a type of writing. Several students then described things that were said to them as individuals during various library exercises that were personally and/or sexually offensive. They all expressed a fear of going to speak to him directly because they would never wish to be alone with him. I agreed with them and told them that they had a very legitimate complaint and asked how far they wished to go with this. They stated that they wanted this language and behavior stopped. I told them I would discuss the problem with the Director and proceed from there. I also said that I would keep them anonymous at this time. I asked them to let me know if the behavior continued or if they sensed any reprisals from him in the future. 11:10 am I received a phone call from Professor Silva. He said that two women students had approached him about some of the things he said in class. He said he was concerned that I might hear something about it and he wished to explain his comments to me. He told me how he used the example of the jello and the vibrator in a “definition” of a belly dancer and the example of sexual intercourse as an example of “centering” and “metaphor”. He told me he felt the students were being overly sensitive about natural conversation. He said vibrators were not strictly sexual tools and that these are animal science students and should not be offended by the description of a sexual act. He also stated that about two years ago “Brian came storming into my office” and forbade him from using sexual examples. He wondered if he should try to discuss it with the class. During the conversation I took notes and asked him the names of the two students. He gave me their names. One was one of the six that had come to my office. I did not tell him that I had already spoken with the students but I did voice my objections to his examples. I explained that using the word mechanical “vibrator” in a definition of a “belly dancer” definitely had sexual overtones and would be offensive to women students. I told him I felt the use of sexual intercourse as an[ ] example of any thing in a technical writing course was very offensive and crude. He said that the students write technical papers on animal breeding all the time and he’s not offended. I expressed the understanding that technical papers with technical, not crude, terminology is another matter. I also suggested that he read the university literature on sexual harassment very carefully because he was “treading on very thin ice.” Zezula Document at 1 (emphasis in original). During the period from February 27, 1992, to March 2, 1992, eight written complaints were submitted by students to UNH. See Silva Affidavit, Exhibit 1-A through 1-H; Silva Deposition, Exhibits 2-B through 2-1 (attached hereto as Appendices 1-8). Six of the eight complaints address the subject classroom statements made by Silva. See Complaint of Robyn Ferreira dated “Wednesday 27,1992” (Appendix 1); Complaint of Kate Allen dated Feb. 28,1992 (Appendix 2); Complaint of Kimberly S. Austin, undated (Appendix 3); Complaint of Katherine A. Brown, undated (Appendix 4); Complaint of Rachel Powers dated Feb. 27, 1992 (Appendix 6); Complaint of Holly Alverson dated Feb. 28, 1992 (Appendix 7). of Regarding classroom statements attributed to Silva, the complaints state: In Don Silva’s Technical Writing class we were discussing focusing on our target for our report. When Mr. Silva started talking in a sexual manner which I thought was very inappropriated [sic] and also very affending [sic]. He said to the class that he would put it in sexual terms so we could understand it. So he said it’s like going in and out, side to side, and loosening up so you could find the best target area. I really think that was uncalled for, especially from a professor. He could have used other explanations, and if he couldn’t then he was better off by saying nothing at all. Ferreira Complaint at 1 (Appendix 1 at 1). 2-24 During class we were discussion [sic] our technical reports when Don Silva made an analogy of a belly dancer, he made a vulgar, inappropriate description of a “bowl of jello and a vibrator”, to describe the belly dancer. 2-25 Again discussing our technical reports, Don Silva was trying to explain another subject, and to do so he used the analogy of intercourse, “Find the target, loosen up, back and forth, side to side.” These are just two of many such occurrances [sic]. Powers Complaint at 1 (Appendix 6 at 1). I felt degraded in his class on Wednesday, 26 Feb, and disgusted on 24 Feb. I had questions about our assignment on 26 Feb, but due to his use of sex as a “focus”, I walked away rather than asked [sic] him to clarify again. I didn’t want any more strange explainations [sic]. Alverson Complaint at 1 (Appendix 7 at 1). As a non-traditional student and as a parent I am appalled at the statements made by Don Silva in the Technical Writing class on Wednesday 2/26/92. I feel that as a professor of English he could have illustrated the definition of “analysis” in a much more appropriate manner. He insinuated that every student present had first-hand knowledge of his illustration, and furthermore, that it was the only one we would understand. Allen Complaint (Appendix 2). I find Don Silva’s constant referrals to sex offensive. He has yet to hold a class in which he did not make a sexually suggestive, or bluntly sexual statement. Enough people have allready [sic] stated what was said in class. I will briefly state how those statements made me feel. I was shocked. I felt demeaned and embarassed [sic]. I am not a prude, but this is not an appropriate way for a writing teacher to communicate with his students. I have three daughters; I would not want this man teaching them. Austin Complaint (Appendix 3). As a student of Don Silva’s COM 212 Technical Writing class I was very offended by his sexual refferals [sic]. I was brought up in a house where sex was not something to be discussed openly and freely and it certainly was not something to be taken lightly. There are a hundred different ways to give an example of something without being sexual about it. Brown Complaint (Appendix 4). Two of the complaints do not refer to Silva’s classroom speech. See Complaint of Brenda Madonna dated Feb. 29, 1992 (Appendix 5); Complaint of Denise Kohler and Jamalyn Brown dated Mar. 2, 1992 (Appendix 8). Rather, the Madonna complaint addresses alleged conduct “during the period of fall semester 1990,” purportedly involving “encounters with Don that I felt to be powerful, aggressive, physical intimidation tactics which made me very uncomfortable,” Appendix 5, while the Kohler/Brown complaint recounts an alleged January 29, 1992, incident at the Dimond Library as follows. My Mend had gone over to ask Prof. Silva a question about an assignment. I went over to join her and to see if he could help me also. When she was done, he asked if he could help me. I said no, Im [sic] with her. As we turned to leave, he made a comment, “How long have you two been together.” Appendix 8. The “Informal” Sexual Harassment Complaint Procedure On February 27, 1992, Neil Lubow received a telephone call from Dr. Zezula informing him that several students from plaintiffs technical writing course “had come to her to complain about what they thought was sexual harassment on the part of Professor Silva.” Deposition of Neil Lubow at 17. The following day, Lubow met with Zezula and seven students. See Lubow Notes at 420 (Plaintiffs Hearing Exhibit 1). Lubow testified at the preliminary injunction hearing that at this February 28 meeting the students described the incidents they were complaining of. He further testified that the students were “very upset.” Lubow’s notes from February 28, 1992, state, inter alia, “Ask Brian about alternative class instructor.” Lubow Notes at 420; Lu-bow Deposition at 25. His notes further indicate that Lubow “[t]alked to Brian. He is looking into replacement instructor(s) for Silva. Agrees that we can’t leave him in the classroom. Will meet with Silva and Staple-ton ASAP next week.” Lubow Notes at 420; Lubow Deposition at 26. The testimony of Giles at his deposition is consistent with Lubow’s account of the events on or around February 27 and 28. Giles testified, inter alia, Q Were you looking into replacements at that time? A That’s correct. Q Did you agree that Silva could not be left in the classroom at that time? A For this — for the purposes of the complainants, yes. Q Had you talked to Don Silva to get his side of it at that time? A No, I had not. Q Were you looking for replacements at that time? A That’s correct. Giles Deposition at 33-34. After Lubow met with the student complainants, he scheduled a meeting with Silva. Lubow testified at the preliminary injunction hearing that when Silva called him to find out what the meeting was about, he told Silva that several of Silva’s students were complaining about sexual harassment. On March 3, 1992, plaintiff met with Lu-bow, Giles, and Stapleton. Plaintiff brought Deborah Watson and Ludwig Balling with him to the meeting as observers and advisors. Affidavit of Deborah Watson at 2 and Affidavit of Ludwig Balling at 2 (attached to Plaintiffs Memorandum in Opposition to Defendants’ Motion for Summary Judgment as Exhibits 14 and 15). The meeting lasted about half an hour. Silva Affidavit ¶ 5. Silva states that, At the March 3 meeting, I was given and confronted with, for the first time, written complaints of some of my students____ These Informal Complaints referred primarily to the two classroom statements described above, although there were references to matters that had gone on much earlier in the semester. (I had never received any complaint, either orally or in writing, about these other matters before this time.) At the March 3 meeting, I was immediately asked to respond to the allegations contained in the Informal Complaints. Although there was some (albeit hardly complete) discussion of the two statements that I made in class, there was no discussion of the other statements that purportedly constituted sexual harassment. More importantly, I was given no time to consider my response, no opportunity to explain the context in which the statements had been made, and no opportunity to explain why the statements did not constitute sexual harassment under the University’s policy. Of course, it would have been difficult for me to explain why my examples did not violate the University’s sexual harassment policy at this meeting since I had not been given notice of the topic of this meeting, and had had no opportunity to examine the University’s sexual harassment policy. Id. ¶6 (emphasis in original). Silva also testified at the preliminary injunction hearing that he was only given an opportunity to say whether or not he had made the classroom statements at issue. Following the March 3 meeting, “shadow classes” were created so that any of plaintiffs students who wanted to transfer out of his classes could do so, and plaintiff was required to make announcements to his students offering them the opportunity to transfer into one of the shadow classes. Id. ¶ 8; Memorandum from Giles to Silva dated March 18,1992 (attached to Silva Affidavit as Exhibit 3). All of the complaining students transferred out of Silva’s class. Lubow’s notes for the period between the March 3 meeting and the March 27 meeting state, inter alia, 3/10-3/27 —A draft of letter of reprimand is written —Univ. feels it must act to protect students —Hope is that both complainants & Silva will find it acceptable (middle ground between doing nothing & firing Silva) —Students decide 4 conditions will satisfy them. Lubow Notes at 344. On March 27, 1992, plaintiff, again accompanied by Watson and Balling, had a second meeting with Lubow, Giles, and Stapleton. At this meeting, plaintiff was given a “draft” letter of reprimand stating, inter alia, that the students’ reports of Silva’s actions “have been found to be altogether credible.” Draft Letter of Reprimand dated Mar. 17, 1992 (attached to Silva Affidavit as Exhibit 4). The draft further states, ‘Tour behavior is in violation of University policy prohibiting sexual harassment (attached) and will not be tolerated.” Id. According to Deborah Watson, this meeting “was very brief, not more than ten or fifteen minutes in all” and “[tjhere was no discussion.” Watson Affidavit at 3-4. Silva testified at the preliminary injunction hearing that he asked for time to respond to the draft letter and was given until April 1, 1992. See also Lubow Notes at 344 (“Silva asked to have until Wed, 4/1 to respond — We agreed.”). He further testified that he later asked Lubow for an extension of time, but Lubow denied his request. Silva did not respond to the draft letter by April 1, and the letter was converted into a formal letter of reprimand, dated April 1, 1992 (attached to Silva Affidavit as Exhibit 5). The Grievance Process Pursuant to the six-step grievance procedures set forth in the University’s Faculty Handbook, plaintiff grieved his receipt of the formal reprimand by submitting a grievance letter to Giles. Silva Affidavit ¶ 12; Letter from Silva to Giles dated Apr. 30, 1992 (attached to Silva Affidavit as Exhibit 6). Silva’s grievance was denied by Giles in a letter dated May 27, 1992. Letter from Giles to Silva dated May 27, 1992 (attached to Silva Affidavit as Exhibit 7). Giles also suspended plaintiff without pay for failing to meet the requirements for continued employment contained in the formal reprimand. Silva Affidavit ¶ 14; Letter from Giles to Silva dated June 2, 1992 (attached to Silva Affidavit as Exhibit 9). By letter dated June 11, 1992, plaintiff appealed the denial of his grievance by Giles to Dr. Thomas P. Fairchild, Dean of the College of Life Sciences and Agriculture at UNH (Step II) (attached to Silva Deposition as Exhibit 10). As a result of plaintiffs decision to appeal the denial of his grievance at Step I, Giles subsequently put plaintiffs suspension “into abeyance until the grievance process is completed.” Silva Affidavit ¶ 14; Letter from Giles to Silva dated June 22, 1992 (attached to Silva Affidavit as Exhibit 10). Plaintiffs grievance was denied at Step II of the grievance process by Fairchild on June 25, 1992. Letter from Fairchild to Silva dated June 25, 1992 (attached to Silva Deposition as Exhibit 12). Plaintiff thereafter proceeded to Step III of the grievance process by requesting that the Faculty Grievance Committee review the process the University had followed prior to issuing the formal letter of reprimand and suspending him without pay for failure to meet the conditions set forth in that reprimand. Letter from Silva to Dr. John W. Seavey, Chairman, Faculty Grievance Committee, dated June 30, 1992 (attached to Silva Deposition as Exhibit 13). A hearing before the Faculty Grievance Committee was held on August 18, 1992. Following this hearing, the committee found that plaintiffs “grievance has merit and a fair hearing and due process should be provided.” Faculty Grievance Committee Decision at 2 (attached to Silva Affidavit as Exhibit 11 and to Silva Deposition as Exhibit 17). Plaintiff requested mediation of the committee’s decision on the ground that he would not be able to get a fair hearing. The attempted mediation was unsuccessful, and the grievance was subsequently appealed to Step IV of the grievance process. Letter from Mel Sandler, Grievance Committee Chair, to Walter F. Eggers, Vice President for Academic Affairs, dated Nov. 3, 1992 (attached to Silva Deposition as Exhibit 19). While his grievance of the formal letter of reprimand was at Step III, the University notified plaintiff that it would not schedule him to teach any classes for the fall semester of 1992. Letter from Ronald F. Rodgers to Debra Weiss Ford re: Professor Donald Silva dated August 24, 1992 (attached to Silva Deposition as Exhibit 15). Initiation of “Formal” Sexual Harassment Process and Rescission of Formal Letter of Remand By letter dated November 12, 1992, plaintiff received notice from Giles that a formal complaint of sexual harassment had been filed against him by students of the Thompson School and that a hearing panel would be convened “to determine whether University System policy has been violated and to recommend appropriate relief and disciplinary action.” Letter from Giles to Silva dated Nov. 12,1992 (attached to Silva Deposition as Exhibit 20). Giles further stated that “[b]e-cause of the Panel’s responsibilities in this case, I am hereby rescinding the formal letter of reprimand and the sanctions set forth therein (reference 2). Further administrative action may be taken on the basis of the Panel’s findings and recommendations. During the pendency of the formal complaint resolution process, you will not be scheduled to teach any classes.” Id. Termination of the Grievance Process As a result of Giles’s decision to rescind the April 1, 1992, formal letter of reprimand, Walter Eggers deemed it no longer necessary to hear plaintiffs grievance at Step IV. Letter from Eggers to Silva dated Nov. 13, 1992 (attached to Silva Deposition as Exhibit 22 and to Silva Affidavit as Exhibit 15). Plaintiff, disagreeing with Eggers’ determination, requested that Dale Nitzschke, the University’s president, hear his grievance at Step V. Letter from Silva to Nitzschke dated Nov. 25, 1992 (attached to Silva Deposition as Exhibit 26). Nitzschke declined to consider plaintiffs grievance at Step V, indicating that the proper procedure as outlined in the Faculty Handbook required plaintiff to grieve Eggers’ decision not to hear the grievance about the formal letter of reprimand at Step IV. Letter from Nitzschke to Silva dated Dec. 17, 1992 (attached to Silva Deposition as Exhibit 30). Plaintiff decided at this point that “any further attempts to jump through the hoops set out for me by the University would be of no avail,” Silva Affidavit ¶ 19, and he did not pursue any further steps in the grievance process. The “Formal” Sexual Harassment Process By letter from Jane Stapleton and Neil Lubow dated November 16, 1992, plaintiff was notified that seven of the students who had filed complaints during the 1992 spring semester had requested that those complaints “be resolved under the ‘Formal Complaint’ section of our ‘Procedures for Resolution of Sexual Harassment Complaints.’” Letter from Lubow and Stapleton to Silva (attached to Silva Affidavit as Exhibit 17). The Stapleton-Lubow letter states, On November 12, 1992 seven of the students who lodged complaints of sexual harassment against you last spring semester requested in writing that the complaints be resolved under the “Formal Complaint” section of our “Procedures for Resolution of Sexual Harassment Complaints” (“Procedures”). Attached are copies of the students’ original written complaints, the November 12,1992, letter from the seven students, an additional letter from Holly (Alverson) Woodhouse dated November 12, 1992, and “Procedures”. Id. The letter further notified plaintiff that he had five days in which to respond to the students’ complaints. Id. The November 12 letter is signed by Rachel Powers, Holly (Alverson) Woodhouse, Kimberly S. Austin, Robyn Ferreira, Katherine A. Allen, Denise M. Kohler, and Jamalyn L. Brown. Silva Affidavit, Exhibit 18. The Holly (Alverson) Woodhouse letter of November 12, 1992, states, As a follow-up to my previous letters, I would like to address the 2 main incidences [sic], and one in the library. In the Diamond Library, early in the 1st few weeks, Mr. Silva, Nikki Libbey, Kate Allen, Kim Austin, & Roger Wadleigh & myself were talking about an assignment. Nikki said “I guess I’ll go jump on a Computer before someone else does” in referring about doing an assigned “search” that Mr. Silva had assigned us. Don Silva smiled & said “I’d like to see that!” We all laughed a bit uneasily & wandered off. Same day, I was on the floor in the card indexes looking up books. Don Silva stopped, saw me on my hands & knees pulling out a floor level card index. Kate & Nikki heard him say to me ‘You look like you’ve had alot [sic] of experience on your knees.” I didn’t hear him. Kate & Nikki looked at each other in disbelief and then told me. In Class on the 24th of Feb he was comparing a belly dancer to a bowl of jello (a jello mold) on a plate with a vibrator held below the plate so it makes the jello jiggle. I felt that was disgusting & unnecessary — he assumed all kids present had experience with vibrators, which I find personally insulting, and I felt the young women, right out of High School, were being seriously degraded. As for the incident on the 26th Mr. Silva was trying to explain the term “focus” in Technical writing. He said “Let me put this in sexual terms so you all will understand. First you poke around, loosen it up, go from side to side, up & down, until you find just the right spot. That’s focus.” I remember sitting in my seat, staring at him, then I turned to look at Kate & Kim. We all were looking like we were in shock. I remember slowly looking under my chair as every muscle in my body contracted, to see if he was under my chair. The rest of my reaction is in my 1st letter. I positively DO NOT want my daughter exposed to this level of teaching, in 4 years when she begins a College Career. I am willing to proceed formally as far as needed to gain some action taken. Silva Affidavit, Exhibit 19. Plaintiff responded to the students’ complaints and raised his objections to the fairness of the procedures being used by the University in a letter dated November 24, 1992. Letter from Silva to Lubow (attached to Silva Affidavit as Exhibit 21). By letter dated December 10, 1992, plaintiff was notified that a hearing panel had been established to consider the sexual harassment complaint filed against him at a hearing scheduled for January 27, 1992. Letter from Chris Burns-DiBiasio to Silva (attached to Silva Affidavit as Exhibit 24). The letter further informed plaintiff that “[t]he function of the hearing panel will be to hear and consider testimony, and other relevant reliable evidence, and to make findings of fact to determine if the University Policy on Sexual Harassment has been violated, and if so, to recommend appropriate sanctions.” Id. Copies of the UNH policy on sexual harassment and the UNH sexual harassment complaint procedures were enclosed with the letter. Id. This letter also listed the two faculty members, two students, and one staff member chosen to sit on the hearing panel and informed plaintiff that he had the right to two preemptive challenges and could challenge any panel member for cause. Id. Plaintiff made no specific challenges to any of the panel members, but did voice his objection to the fact that the panel did not include any minority members. Letter from Silva to Burns-DiBiasio dated Dec. 15, 1992 (attached to Silva Deposition as Exhibit 28); Letter from Burns-DiBiasio to Silva dated Dee. 18,1992 (attached to Silva Deposition as Exhibit 31). A hearing before the hearing panel was held on January 28, 1993. Professor John Mulhem served as plaintiffs third-party ad-visor at this hearing. Plaintiff contends that this hearing “involved matters outside the complaints and as to which I had no prior knowledge that they would be used.” Silva Affidavit ¶ 26. Specifically, plaintiff asserts that I was never given notice that allegations related to a “time management problem” that I gave as an assignment, the fact that I did not return this problem promptly, the “assignment” in which I asked my students to put down their home and school addresses and phone numbers, my alleged habit of standing too close to students when speaking, my alleged “confrontation” with Brenda Madonna after the Informal Complaints were filed, and my question to Kate Allen asking her if she wanted an A in the course, would be used against me during the formal proceedings. Similarly, the status of the allegations contained in Ms. Woodhouse’s second letter (Ex. 19) was never made clear to me. All of these “facts” were, in fact, used by the complainants at the hearings and were relied upon by both panels. Silva Affidavit ¶24 (footnote omitted). On February 2, 1993, the hearing panel submitted the following findings of fact to the University’s president, Dale Nitzschke. Based on careful consideration of all evidence presented in the hearing, the panel makes the following findings of fact. —Professor Silva used two sexually explicit examples in his technical writing class. Specifically, as an example of a “working definition,” Professor Silva described belly dancing as being like a plate of jello being stimulated by a vibrator. In another example, Professor used a vivid description of sexual intercourse to describe the “focus stage” of the technical writing process. —Students were offended and shaken by Professor Silva’s remarks and expressed reluctance and fear of going to speak to him directly about their concerns. Instead, they sought help from another faculty member. —When asked if he (Professor Silva) would use the same examples to illustrate technical writing concepts in the future, he replied he would do it again “tomorrow.” —The students described a number of other encounters with Professor Silva that had sexual overtones and that resulted in students feeling offended, embarrassed and intimidated. —The students were also intimidated by a classroom assignment that required students to reveal personal information about their daily activities from 6:00 A.M. to 1:00 A.M., including what they did, with whom they did it, as well as what they thought and dreamed about. The assignment was allegedly related to time management, but there was no explanation to the student[s] of the purpose of the assignment or the need for such extensive information. —Professor Silva requested and kept personal information on all students including home telephone numbers, personal goals and their favorite color, ostensibly for a research project. Students were unaware of any research project and had never signed Informed Consent Forms agreeing to information being accumulated about themselves in this way. Students were uncomfortable about Professor Silva retaining this information and voiced concerns about how it might be used. —Two alternate sections of the technical writing class were set up mid-semester and instructors hired to accommodate students who no longer felt they could attend Professor Silva’s class. Twenty-six students, including the complainants, changed sections when presented with the opportunity. —Director Brian Giles stated that scheduling a separate class is an extreme measure and an option he has never needed to exercise in his six years as the Director of the Thompson School of Applied Sciences. —Students who reported their concerns and later filed a complaint said that Professor Silva sought them out and in one incident used himself to physically move in on the students and verbally intimidate them. In another incident, Professor Silva impeded the movement of one of the students. The student, scared and shaken by this encounter, went directly to a faculty member who corroborated the encounter. —Finally, Dr. Jerilee Zezula and Dr. Brian Giles testified that they had both spoken directly with Professor Silva and told him that his comments had offended the students and were inappropriate. It is the conclusion of the hearing panel that a reasonable female student would find Professor Silva’s comments and his behavior to be offensive, intimidating and contributing to a hostile academic environment. Furthermore, Professor Silva gave the panel no reason to believe that he understood the seriousness of his behavior and the impact it had on the students he was teaching. In addition, Professor Silva stated he would behave in a similar manner in the future. For these reasons, it is the hearing panel’s opinion that Professor J. Donald Silva violated the USNH Sexual Harassment Policy. And since this is the second time in a two-year period that Professor Silva has been formally notified about his use of inappropriate and sexually explicit remarks in the classroom, the hearing panel recommends to the President the following sanctions: 1. Leave without pay for a period of one year. At Director Brian Giles discretion, Professor Silva has been relieved of teaching responsibilities this semester. We support the administration’s concern that Professor Silva be kept out of the classroom until it is clear that he poses no risk to students. We further recommend: 2. That before Professor Silva is allowed to return to the classroom that he satisfy the following additional requirements: —Reimburse the University for all costs associated with any and all alterations in teaching assignments by Professor Silva’s behavior, including, but not limited to, creation of alternate sections. —Within one month of the receipt of this letter, participate in approved counseling sessions (with a licensed and certified counselor selected by the University of New Hampshire) for a minimum of one year at his own expense; —Make no attempts to retaliate against those students who have filed sexual harassment complaints against him; —Apologize in writing to the complainants for creating a hostile and offensive environment. Sexual Harassment Hearing Board Decision at 2-4 (Exhibit 4 to Defendants’ Further Memo). The findings and recommendations of the panel were then reviewed by Nitzschke. Based on his review, Nitzschke concluded that plaintiff had violated “the USNH Sexual Harassment Policy.” Letter from Nitzschke to Silva dated Feb. 8, 1993, at 1 (attached to Silva Deposition as Exhibit 34). Nitzschke also accepted all of the panel’s recommended sanctions except for the requirement that plaintiff participate in a minimum of one year of counseling. This condition was altered to require plaintiff to “obtain a counseling evaluation ... and, if prescribed, participate in continued counseling sessions____” Id. at 2. With respect to the decision of the hearing panel, plaintiff states in his affidavit, In determining the sanction, the first panel relied on the “fact” that I had been previously warned about my use of “inappropriate and sexually explicit remarks in the classroom” (despite the fact that this was not a “past sexual harassment offense” as required by the procedures). No evidence had been received on this prior “warning” and I was given no opportunity to rebut it (being unaware that it was going to be used against me).... Silva Affidavit ¶ 27. Plaintiff appealed Nitzschke’s decision pursuant to the University’s October 1991 Procedures for Resolution of Sexual Harassment Complaints. Letter from Silva to Nitzschke dated Feb. 23, 1993 (attached to Silva Deposition as Exhibit 38). A sexual harassment appeals board made up of two students and three faculty members was put together to hear plaintiffs appeal. Letter from Nitzschke to Silva dated Mar. 4, 1993 (attached to Silva Deposition as Exhibit 40). Plaintiff was given two preemptory challenges to the individuals selected to serve on the appeals board, but chose not to exercise them. Letter from Burns-DiBiasio to Silva dated Mar. 8, 1993, and Letter from Silva to Burns-DiBiasio dated Mar. 9, 1993 (attached to Silva Deposition as Exhibit 40); Silva Deposition at 202-03. The appeals board convened on March 29, 1993. The appeals board hearing “began at noon and continued beyond midnight.” Silva Affidavit dated Feb. 11,1994, at ¶ 45. Plaintiff was represented at the hearing by a faculty advisor, Thomas Camicelli. Id. ¶ 29. Plaintiff describes the appeals board hearing as highly chaotic at the beginning of the meeting. The students arrived with Italian sandwiches and sodas and Mary Clark opened the meeting and the students immediately began popping their sodas and unwrapping their sandwiches and sat there and proceeded to eat their lunch because the proceedings started at 12:00 noon. Silva Deposition at 189. He further states, A. Well, I couldn’t understand why each Board would allow the students to whisper with one another and to send signals by winking and nodding their heads and prompting one another, you know, when they were being questioned. And also, you know, signaling Jane Stapleton, you know, and back and forth. I mean, there were seven people sitting there and it was very obvious, you know, that this went on and on and on. And there’s the— Q. Can you be more specific about the behavior that was going on? A. Well, I can’t remember the exact student. Like, for example, when — I remember once when Holly Woodhouse was saying some things in the meeting, she was prompted by one of the other women whose name escapes me right now. I can’t remember her name. But she said a couple of things out loud and, you know, and prompted her____ Silva Deposition at 190. Plaintiff also asserts that the hearing’s atmosphere made it difficult for him and his advisors to question the students who had filed the complaint against him. Plaintiff states, A. Well, just generally that the hypersensitivity and the atmosphere was, you know, exceedingly emotional, making it impossible for us to, you know, ask questions. Q. Why was it impossible for you to ask questions? A. Because the students wouldn’t — the students would — began—would react emotionally and they would look to the Board and they would in essence refuse to answer the questions and any further questions asked would make them even more emotional and than they already were. Q. It’s your testimony that the students refused to answer questions that were asked of them in the hearing? A. In some cases they did. I can’t detail them. Silva Deposition at 191-92. Plaintiff also describes two other incidents that occurred at the appeals board hearing which he contends made it impossible for him to get a fair hearing. Plaintiff states, A. One was when I turned to Carnicelli and, without a voice, in other words, below a whisper, there was a microphone on the table right in front of me, a very sensitive one and with a technician running it, and when one of the students said that it was not your every day household, not every home has Jello or a vibrator, I turned to Carnicelli and said under my breath “Especially Jello.” At this point in the hearing, Jane Stapleton jumped up and said “I heard what he said” and said what it was. It was that — I can’t remember, I think she said was he said that Holly Woodhouse should have a vibrator in her house or something. And immediately three other students jumped up and said that’s exactly what they heard. And then Shannon Cannon jumped up on the panel and she said that she heard the same thing. And that was a total disruption of the hearing and seemed to be completely out of control at that point. Silva Deposition at 193-94. A. ... And then there was another incident where a student who was ostensibly indisposed stood up in the middle of the hearing looking, you know, very ill, and disconcerted, at the same time that Roger Wadleigh, a student, a friend of hers was testifying, and she walked out of the room and as she walked out of the room she either collapsed and fell to the floor or was beginning to collapse to the floor and one of the other women ran to her and proceeded to hold on to her and they struggled out of the room together and they were gone from the hearing for a length of time. And I’ll never forget the looks of the people on the panel. Because they looked at her and then they looked at me as if I had caused, you know, this effect. Silva Deposition at 197. The Appeals Board made the following findings of fact in its decision issued on April 14, 1993. Based on careful consideration of all evidence presented in the hearing, the Appeals Board makes the following findings of fact: —Professor Silva used at least two inappropriate sexually explicit examples in his technical writing class. Specifically, as an example of a “working definition,” Professor Silva described belly dancing like a plate of jello being stimulated by a vibrator. In another example, Professor Silva used a vivid description of sexual intercourse to describe the “focus stage” of the technical writing process. His stated intention was to define “focus” in “terms that [the students could] all understand.” —The students described several other encounters with Professor Silva that were personally invasive, or that had derogatory or sexual overtones. Specifically, he asked one student (Kate Allen) “how would you like to get an A” for the class. Other inappropriate remarks reported by the students included the following: To Holly Woodhouse, “It looks like you’ve had a lot of experience down there.” This comment was made to Ms. Woodhouse when Professor Silva observed her on her knees looking through the bottom drawer of the card catalog at the UNH Library. When Nicole Libby told her classmates that she was “going to jump on the computer,” Professor Silva commented to other students near him, “I’d like to see that.” (This comment was overheard and reported by Kate Allen.) To Denise Kohler and Jamalyn Brown, “How long have you been together?” implying a lesbian relationship. In another instance, Kimberly Austin reported overhearing Professor Silva giving a spelling test to a student. According to Ms. Austin, every third example Professor Silva used had a sexual slant. Ms. Austin was waiting in the doorway of Professor Silva’s office to see him about a class assignment. —Several students (J. Brown, R. Ferreira, H. Woodhouse, and especially K. Austin) mentioned Professor Silva’s tendency to stand too close to students when he talks to them. This made the complainants uncomfortable and bordered on intimidation. Professor Carnicelli attributed this behavior to Professor Silva’s cultural background. The Board found this reason difficult to accept because Professor Silva has been in this country for over 30 years and should understand comfortable conversation distances. —The students were also alarmed by the instructions given regarding a time management assignment that required the students in the class to record information on a chart about their daily activities from 6:00 A.M. to 1:00 A.M. Professor Silva told the class he wanted to know what they did, with whom they did it, as well as what they thought and dreamed about. The purpose of the assignment was not explained to the students, and the assignment was not returned to them until after Professor Silva was requested to do so by the Director of the Thompson School of Applied Sciences, Brian Giles. —The students reported feeling offended, intimidated, embarrassed, humiliated, demeaned and threatened by Professor Silva’s remarks, and expressed reluctance and fear of going to speak with him directly, one-on-one. At this time, the students had no way to avoid Professor Silva and his offensive behavior. Professor Silva’s technical writing class was required for graduation; no other sections were offered at the time. In this situation, they sought help from another faculty member, Dr. Jerilee Zezula, who advised them to file a formal complaint. During the hearing, Dr. Zezula corroborated the students’ claim that they were distressed, upset and offended by Professor Silva’s behavior. —Two alternate sections of the technical writing class were set up at mid-semester and instructors hired to accommodate students who no longer felt they could attend and learn in Professor Silva’s class. Twenty-six students, including the complainants, changed sections when presented with the opportunity. Director Brian Giles stated that scheduling a separate class is an extreme measure and an option he has never exercised in his six years as Director of the Thompson School of Applied Sciences. —Students who reported their concerns and later filed a complaint said that Professor Silva sought them out and, in one incident in Stacy’s Restaurant (located in the Thompson School), physically moved in on them and argued with them and verbally intimidated them. In another incident reported by one of the witnesses (Brenda Madonna), Professor Silva physically blocked her exit from the vending machine room while he complained about the students’ actions against him and how he would overcome this attack. The students, disturbed and shaken by these encounters, went to Dr. Zezula, who corroborated both encounters to the Hearing Board. —Finally, both Dr. Jerilee Zezula and Dr. Brian Giles testified that they had spoken directly with Professor Silva and told him that his comments were inappropriate and had offended the students. Dr. Giles spoke with Professor Silva twice, and told him not to approach the students against. It is the conclusion of the Appeals Board that Professor Silva’s repeated and sustained comments and behavior of a sexual and otherwise intrusive nature had the effect of creating a hostile and intimidating academic environment. Furthermore, it is the Board’s opinion that as an experienced teacher and professor of communication and language, Professor Silva should have been more sensitive to the effect of his behavior on the students. Unfortunately, Professor Silva gave the Board no reason to believe that he understood the seriousness of his behavior and the impact it had on the students. When the problem was brought to his attention, he tried to defend himself by claiming that the students were immature and in need of better training in the use and interpretation of language. The Board found these women to be reasonable and that they had independently, as well as collectively, been offended by Professor Silva’s language and innuendos. For these reasons, it is the Appeals Board’s opinion that Professor J. Donald Silva has violated the USNH Sexual Harassment Policy and, since this is the second time in a two-year period that he has been formally or informally warned about his use of inappropriate and sexually explicit remarks in the classroom, the Appeals Board imposes the following sanctions effective immediately: 1.Professor Silva will be suspended without pay for a period of at least one year. Professors are expected to serve as role models for students and to be sensitive to the needs of their students; in the opinion of the Appeals Board, Professor Silva is not capable of meeting this expectation at this time. 2. Professor Silva must begin counseling sessions at his own expense, with a licensed and certified counselor selected by the University of New Hampshire. Professor Silva’s suspended status will be removed after one year, following notification by his counselor that no further sessions are needed and that he is ready to return to the classroom. 3. Professor Silva must make no attempt to contact or retaliate against those students who filed the sexual harassment complaint or testified against him. Dean Thomas Fairchild and Director Brian Giles will be responsible for implementing these sanctions. Sexual Harassment Appeals Board Decision (Exhibit 3 to Defendants’ Further Memorandum). Discussion 1. Preliminary Injunction Standard In deciding whether to grant a preliminary injunction, a district court must weigh the following four factors: (1) the likelihood of the movant’s success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant equities, i.e., “the hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld,” Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991); and (4) the effect on the public interest of a grant or denial of the injunction. Gately v. Commonwealth of Mass., 2 F.3d 1221, 1224 (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1832, 128 L.Ed.2d 461 (1994). The “sine qua non” of the preliminary injunction test is whether the movant is likely to succeed on the merits. Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.1993). %. Summary Judgment Standard Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Fed.R.Civ.P. When the non-moving party bears the burden of persuasion at trial ... to avoid summary judgment he must make a “showing sufficient to establish the existence of [the] elements] essential to [his] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 [106 S.Ct. 2548, 2552, 91 L.Ed.2d 265] (1986). The nonmoving party “may not rest upon mere allegation or denials of his pleading.” LeBlanc [v. Great Am. Ins. Co.], 6 F.3d [836,] 841 [ (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994) ] (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 [106 S.Ct. 2505, 2514, 91 L.Ed.2d 202] (1986)). Rather, to establish a trial-worthy issue, there must be enough competent evidence “to enable a finding favorable to the non-moving party.” LeBlanc, 6 F.3d at 841 (citations omitted). Lewis v. Gillette Co., 22 F.3d 22, 24 (1st Cir.1994). In determining whether summary judgment is appropriate, the court construes the evidence and draws all justifiable inferences in the nonmoving party’s favor. Anderson, supra, 477 U.S. at 255, 106 S.Ct. at 2513. 3. The Elements of a Section 1983 Claim To establish a violation of section 1983, the plaintiff must prove (1) that “ ‘the conduct complained of ... deprived the complaining party ‘of rights, privileges or immunities secured by the Constitution or laws of the United States’ ” and (2) that such conduct ‘“was committed by a person acting under color of state law”’. Martinez-Velez v. Simonet, 919 F.2d 808, 810 (1st Cir.1990) (quoting Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); and citing 42 U.S.C. § 1983). The record clearly shows that defendants’ conduct, as set forth herein, occurred under color of state law. I. First Amendment Claims To prove a First Amendment violation, the plaintiff must show that (1) his classroom speech was constitutionally protected and (2) the speech was a motivating factor in the decision to discipline him. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Thereafter, the defendant must show that it would have acted in the same manner even in the absence of the protected classroom speech. Id. a. Was the Speech Protected? (1) The Absence-of-Notice Claim In Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), the Supreme Court stated, When one must guess what conduct or utterance may lose him his position, one necessarily will “steer far wider of the unlawful zone____” Speiser v. Randall, 357 U.S. 513, 526 [78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460] [ (1958]). For “[t]he threat of sanctions may deter ... almost as potently as the actual application of sanctions.” N.A.AC.P. v. Button [371 U.S. 415], 433 [83 S.Ct. 328, 338, 9 L.Ed.2d 405] [ (1963) ]. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed. Id. at 604, 87 S.Ct. at 684. Accordingly, the First Circuit requires schools to provide teachers “with notice of what conduct was prohibited.” Ward v. Hickey, 996 F.2d 448, 452 (1st Cir.1993) (citing see Keyishian, supra, 385 U.S. at 604, 87 S.Ct. at 684), stating that a school “is not entitled to retaliate against speech that it never prohibited.” Id., 996 F.2d at 453 (citing cf. Mt. Healthy, supra, 429 U.S. at 284, 97 S.Ct. at 574). The relevant inquiry is: based on existing regulations, policies, discussions, and other forms of communication between school administration and teachers, was it reasonable for the school to expect to the teacher to know that [his] conduct was prohibited? Ward v. Hickey, supra, 996 F.2d at 454. The evidence before the court demonstrates that the belly dancing statement was not “of a sexual nature,” USNH Sexual Harassment Policy, but rather that the six complainants who were offended by it were under the mistaken impression that the word “vibrator” necessarily connotes a sexual device. This misunderstanding induced said complainants to regard the focus statement as part of an offensive academic environment. Because the USNH Sexual Harassment Policy does not proscribe verbal conduct not of a sexual nature, Silva’s discipline under said policy was erroneous. Accordingly, the court finds and rules that such discipline violated the First Amendment’s notice requirement as set forth in Keyishian, supra. (2) The Reasonableness Claim In Mailloux v. Kiley, 448 F.2d 1242 (1st Cir.1971) (per curiam), the First Circuit stated its test for determining the validity of a government regulation affecting a teacher’s classroom speech. [F]ree speech does not grant teachers a license to say or write in class whatever they may feel like ... and ... the propriety of regulations or sanctions must depend on such circumstances as the age and sophistication of the students, the closeness of the relation between the specific technique used and the concededly valid educational objective, and the contend and manner of presentation. ... [W]e see no substitute for a case-by-ease inquiry into whether the legitimate interests of the authorities are demonstrably sufficient to circumscribe a teacher’s speech. Id., 448 F.2d at 1243 (emphasis added). Subsequently, in Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Supr