Full opinion text
OPINION EN BANC COHEN, Justice. The appellants and the appellee have filed motions for rehearing. We overrule the motions, withdraw our previous opinion, and issue this one in its place. The appellee, Fabian Vaksman, sued the appellants, who are members of the board of regents of the University of Houston, the president of the University, and the dean, department chair, and members of the graduate committee that expelled him, for damages he alleged resulted from his dismissal from the University’s doctoral program in history. Vaksman sued the regents and the president of the University in their official capacities, and the dean, department chair, and members of the graduate committee both individually and in their official capacities. Trial was to the bench. The court found for Vaksman, awarded him actual damages and attorney’s fees, and ordered that he be reinstated to the doctoral program. The primary issues presented are whether state officers held liable only in their official capacities are protected by sovereign immunity from an award of money damages; whether legislative consent is required to sue the State for relief other than money damages for denial of state constitutional rights; whether legislative consent is needed to sue the State for money damages for breach of contract; and whether the evidence supports the trial judge’s findings that Vaksman’s expulsion was motivated by bad faith and ill will and violated his rights under the Texas Constitution to due process and freedom of speech. We hold that (1) state officers held liable only in their official capacities are immune from an award of money damages; (2) legislative consent is not required to sue state officials for nonmonetary relief for violation of state constitutional rights; (3) legislative consent is required to sue the State for monetary damages for breach of contract; and (4) the evidence supports the judge’s findings. Fact Summary Vaksman emigrated to the United States from Russia. He attended New York University, where he was awarded a master’s degree in history. In 1982, he entered the University of Houston’s doctoral program in American history. The program was taught by the University’s history department, which was chaired by Professor John Ettling. By 1984, Vaksman had completed all of the preliminary requirements for his doctorate, including course work, teaching assignments, and a comprehensive oral examination. He thus attained “ABD” status, signifying that he had completed the requirements for a doctorate “all but dissertation.” Two professors were assigned to be Vaksman’s dissertation advisors. Upon their resignation, Professor Clifford Egan was assigned. Vaks-man was dismissed from the program in 1986. Between his entering the program and his dismissal, Vaksman was outspoken about university policies and current political issues. He expressed his views in newspapers, both in articles and in letters to the editor. He appeared on radio talk shows, gave lectures, and spoke at seminars. Vaksman’s targets included the Soviet Union, the History Department at the University of Houston, and the Athletic Department at the University. Examples of his outspokenness include the following: * Vaksman criticized the Soviet Union’s government as, among other things, oppressive. * He criticized the expenditure of public funds by the Athletic Department, arguing that the funds would be better spent on academic pursuits. * He alleged that the University improperly provided funds to students who had full-time jobs and to a student who was assisting the chancellor’s wife in editing her dissertation thesis. * He provoked a legislative inquiry into the allegedly improper use of funds by the University, and, specifically, by the History Department. * He criticized apartheid-inspired United States sanctions against South Africa, writing that the sanctions should be ended because they were so weakening South Africa that Russia could get a foothold there, making the choice “apartheid or the KGB.” * He criticized the University for not maintaining a separate graduate faculty, arguing that a single faculty for both undergraduate and graduate students decreased the quality of the students’ education. * He criticized members of the History Department for allegedly violating the University’s no-smoking policy. * He criticized the University for not hiring more minority faculty members. * He wrote a book, Ideological Struggle, that criticized the internal politics of the Soviet Union. The book was ultimately published and was criticized by some members of the History Department. In 1986, Vaksman asked the graduate committee to allow him to change fields from American history to European history, provided that he could pass an oral examination in European history, and then to allow him to submit Ideological Struggle as his dissertation. The committee met in October to consider Vaksman’s requests and also to consider Vaksman’s appointment as a teaching or research assistant. On October 28,1986, the committee unanimously voted to dismiss Vaksman. Neither Professor Egan nor Vaksman had been notified that the committee was considering dismissing Vaksman. Vaksman was notified of his dismissal by hand delivery of a letter the next day. The letter was signed by Professor James Jones, as coordinator of graduate studies, and stated as follows: The Graduate Committee (all members present) met on October 28, 1986 to consider your request that you be permitted to change your major field of graduate study from American history to European history, with a concentration on Russian/Soviet history. As you know this was the second time this fall that the Graduate Committee has held a special meeting to consider a request by you, the first meeting occurring earlier this month to review your renewed request for financial assistance. These two meetings have given the Graduate Committee an opportunity to review your progress and performance to date in the Ph.D. program. We have been deeply troubled by what we have learned from this review, for your graduate record reveals a pattern of academic problems that in our judgment cannot be ignored. I regret to inform you that the Graduate Committee, after discussing your record thoroughly, decided in its meeting yesterday to turn down your request for permission to switch fields from American history to European history. In addition, and far more seriously, the Graduate Committee voted unanimously to dismiss you from our graduate program, effective immediately. Several reasons prompted the Graduate Committee’s decision to dismiss you from the program. First, the Graduate Committee noted that you have failed to make satisfactory progress toward completing the requirements for your degree since passing your comprehensive examinations more than two years ago. The record reveals that during this interlude you have suggested several different dissertation topics, each with a different director, and none of these topics has resulted in a substantial body of scholarly research and objective historical writing which the department could accept as constituting progress toward your degree. Indeed, the Graduate Committee was unanimous in its judgment that your written work to date raises serious doubts about whether you are capable of conducting original research and writing objective, scholarly history. In the Graduate Committee’s view, your written work suggests that you are primarily a polemicist who substitutes political ideology for original research and scholarly analysis. The Graduate Committee’s second concern centered on your teaching. After reviewing the student comments in your file and comparing them with those of professors who have supervised you as a graduate teaching assistant, the Graduate Committee concluded that grave doubts exist about your ability to become a satisfactory classroom teacher. Your record to date suggest that your approach to teaching is essentially argumentative — that you view the classroom as a forum for persuading students to accept your views rather than a learning center where faculty and students alike attempt to understand the past on its own terms and reach well-informed, independent conclusions about history. The graduate committee’s third (and final) concern focused upon your professional conduct. Your record reveals that you have often found yourself in disagreement with the department’s evaluation of your work and that you have consistently refused to accept the department’s right to pass judgment on your academic performance. The members of the Graduate Committee therefore agreed that our department has nothing to teach you. In our judgment, you are unteachable. You have the right to appeal your dismissal. Should you decide to exercise your right of appeal, please contact Dr. John Ettling, our department chairperson. He will explain your rights. In May of 1987, Vaksman appealed the matter of his dismissal to four members of the graduate committee. Both Vaksman and Professor Egan appeared before these members. They declined to change their decision. Vaksman then took the matter before a committee comprised of University faculty not from the History Department. Vaksman provided written documentation to the committee, including favorable letters from 12 students who had attended classes he taught. The committee upheld the decision to expel Vaksman. Vaksman then requested that an ad hoc committee be formed to consider his dismissal. The University formed the committee, which also included no members of the History Department. The committee invited Vaksman to appear before it. Vaksman declined because he was not allowed to have an investigator from the Equal Employment Opportunity Commission present or to tape the proceedings. The committee upheld the decision to expel Vaksman. The dean of the College of Humanities and Fine Arts ratified the decision. Vaksman filed suit in federal court against the members of the graduate committee, the dean of the College of Humanities and Fine Arts, and the president and board of regents of the University, alleging that they deprived him of a property interest and a liberty interest without affording him due process. He also alleged that they violated his First Amendment right to freedom of speech. In a concurrent state court action, Vaks-man sued members of the board of regents and the president of the University in their official capacities, and the dean, department chair, and the members of the graduate committee that expelled him, individually and in their official capacities. He sought reinstatement to the doctoral program, compensatory damages, punitive damages, and attorney’s fees. The defendants asserted the defenses of governmental immunity on the claims against them in their official capacities and quasi-judicial immunity on the claims against them in their individual capacities. The state court action was tried to the bench, and the court awarded Vaksman $82,-500 in actual damages and $90,000 in attorney’s fees. The court also ordered that Vaksman be reinstated in the doctoral program. The judgment recites that Vaksman is to recover $10,000 of the damages award from Professor Jones, of the graduate committee, and Professor Ettling, the chairperson of the History Department, in their individual capacities. The court made the following conclusions of law: * The defendants “violated Article 1, Section 8 of the Texas Constitution, the right to free expression.” * The defendants “violated the liberty interest of plaintiff under the First and Fourteenth Amendments of the United States Constitution.” * The defendants “violated due process of plaintiff under Article 1, Section 19 of the Texas Constitution.” * The defendants “breached their contract with plaintiff under the catalog of admission.” * There was no “intentional interference with contract.” * The defendants’ conduct was in their official capacities only, “with the exception of James H. Jones and John Ettling.” Points of Error I and VIII: Due Course and Due Process In point of error one, the appellants contend that there was no evidence or factually insufficient evidence to support the trial court’s finding that they violated Vaksman’s right to due course of law under the Texas Constitution. In point of error eight, they argue that there is no evidence or factually insufficient evidence to support the trial court’s finding that they violated Vaksman’s right to due process of law under the United States Constitution. Article I, section 19 of the Texas Constitution states that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const, art. I, § 19. The Fourteenth Amendment to the United States Constitution provides that “[no] ... State [shall] deprive any person of life, liberty or property without due process of law.” U.S. Const, amend. XIV. We evaluate the due process claims under the federal standard even though the state constitution provides greater protection. See Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). Thus, if a federal due process violation was proved, the evidence will prove a state violation, as well. 1. Was Vaksman entitled to due process? In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Court declared: Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion. 419 U.S. at 576 n. 8, 95 S.Ct. at 737 n. 8; accord Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (8th Cir.1969). We have recognized that when a student is dismissed from a state university, the requirements of procedural due process apply. University of Texas Medical Sch. v. Than, 834 S.W.2d 425, 432 (Tex.App.—Houston [1st Dist.] 1992, no writ); University of Houston v. Sabeti, 676 S.W.2d 685, 687-88 (Tex.App.—Houston [1st Dist.] 1984, no writ) (“Attendance at a state university is an interest protected by the due process clause of the fourteenth amendmentt.]”). We hold that Vaksman was entitled to procedural due process under the state and federal constitutions. 2. What was the nature of Vaksman’s dismissal? There are two types of valid dismissals: disciplinary and academic. Board of Curators v. Horowitz, 435 U.S. 78, 87, 98 S.Ct. 948, 958, 55 L.Ed.2d 124 (1978); Than, 834 S.W.2d at 430. When a student is dismissed for disciplinary reasons, notice of the charges, notice of the evidence to be used against the student, and a hearing are required. See Sabeti, 676 S.W.2d at 689; Esteban, 415 F.2d at 1089. A dismissal for academic reasons “calls for far less stringent procedural requirements” than a dismissal for disciplinary reasons. Horowitz, 435 U.S. at 86, 98 S.Ct. at 953; see Than, 834 S.W.2d at 430. This case is one of academic dismissal. The appellants argue that we should give “great respect to the decisions made by the professional educators.” It is true that “[w]hen courts review the substance of academic decisions ... they should show great respect for the teacher’s professional judgment.” Clements v. County of Nassau, 835 F.2d 1000, 1005 (2nd Cir.1987). This sound rule is based on the belief that university administrators, not judges, should make academic decisions needed to run a university. This assumes, of course, that the academic decision was made in good faith. The trial judge found that the appellants acted in bad faith. If evidence supports that finding, relief was justified. Ikpeazu v. University of Nebraska, 775 F.2d 250, 253 (8th Cir.1985) “An actionable deprivation in an academic dismissal case is proved ... if the decision was motivated by bad faith or ill will unrelated to academic performance.” Id.; see Clements, 835 F.2d at 1005. A verdict in a bad faith academic dismissal case should not be reversed unless no reasonable minds could have found as the judge or jury did. Ikpeazu, 775 F.2d at 255. The factfinder’s threshold decision of whether the university acted in bad faith is an ordinary fact issue that is decided under the ordinary standard of review. Hankins v. Temple Univ., 829 F.2d 437, 440-43 (3rd Cir.1987). In deciding motive, we give no deference to the appellants’ prerogatives, because nobody has a prerogative to act in bad faith. See Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985) (stressing the difference between good faith and bad faith dismissals); Haberle v. University of Alabama, 803 F.2d 1536, 1540 (11th Cir.1986) (same). The trial judge, sitting as the trier of fact, found that the defendants “intentionally harm[ed] [Vaksman] solely because of personal disagreements or grievances wholly apart from academic considerations.” He found that Vaksman was “summarily expelled for alleged, if not fabricated, academic insufficiencies,” and because of “matters of personality and speech,” and that his dismissal was “well beyond the limits” proscribed for “learned professionals.” He further found that Vaksman’s dismissal “was in and of itself outrageous and extreme,” and was “totally anathema to free academic environs.” These are findings of bad faith. If evidence supports that finding, the appellants are not entitled to the deferential standard of review used in cases of good faith academic dismissals. 3. The evidence of bad faith We now review the record to determine if the trial judge’s findings on bad faith and ill will are supported by the evidence. Three University of Houston faculty members, Professors Rothman, Coffman, and Egan, appeared for Vaksman at trial. They testified that the dismissal was improper, that it was not based on academic grounds, and that the dismissal letter contained untrue statements. No witnesses disputed their testimony. The appellants presented no witnesses. They presented only documentary evidence. A review of the testimony showing bad faith and ill will follows. Professor Rothman Professor Rothman stated that Vaksman was an effective classroom teacher. He also addressed the circumstances of Vaksman’s dismissal, asserting that: * after Vaksman completed his examinations, there was no reason to expel him before five years had run from the time he began his dissertation; * it is normal to consult a student’s dissertation advisor (here, Professor Egan) before expelling a student, which was not done in Vaksman’s case; * a student being considered for expulsion normally gets advance notice of any expulsion hearing, which was not done in Vaks-man’s case; * it would be a “shock” for a committee to respond to a student’s request to take another exam and enter a different study area by dismissing him from school; and * students “over and over” take two and one-half years or more to pick a dissertation topic. Professor Coffman Professor Coffman testified (in person and by written statement) that he invited Vaks-man to lecture to his students in geography. He also testified in regard to the History Department faculty’s attitude toward Vaks-man’s political views. He stated that: * Vaksman’s articles about the strategic importance of South Africa “got him in trouble with our politically correct faculty in the history department very seriously because that’s almost an undiseussable subject, and he discussed it;” * some history faculty members espouse Marxist views and believe that those who differ with their views, as Vaksman did openly, are “morally wrong as well as academically wrong;” *he observed a Marxist outlook in the history faculty before the South Africa controversy, in a case involving another anti-communist student; * in the earlier ease, a history professor told him that the student may be working for a foreign intelligence agency and might pose a physical danger; * similar rumors about Vaksman being a physical danger to the faculty were spread; * “the real vehicle which allowed the history department to cashier Mr. Vaksman was a cowardly whisper campaign that he was homicidal maniac, lurking in hallways and frightening professors;” *the conclusion in Vaksman’s dismissal letter that Vaksman was “unteachable” was “patently absurd” as applied to a doctoral candidate in that department, because “when the examining committee passed Mr. Vaksman in his doctoral examinations, they in effect declared him taught;” *the “precipitate action” of the History Department “clearly suggests less laudable motivations;” * “none of this action would have been taken against a quiet native Anglo-American with similar political opinions;” * Vaksman “may have presented an embarrassing challenge to the current academic dogma and, perhaps more crucially, to the posturings of our history department in the academic peeking order — it is clear that an outspoken, anti-Soviet, anti-Marxist Soviet emigree/doctoral candidate is a deficit in the status seeking academic board game;” and *when refugee students like Vaksman “are so unwise politically, or courageous, as to insist that their own experience in a Marxist society was perhaps even worse and more oppressive than our ‘propaganda’ might suggest, the refugee student then represents a severe threat to the ideological position and even to the academic integrity of the academicians who disagree.” Professor Egan Professor Egan was Vaksman’s dissertation advisor. The graduate committee did not consult him before expelling Vaksman, even though Professor Egan was the one faculty member responsible for directing Vaksman. Professor Egan testified that: * Vaksman was expelled because he was “an irritant” to the people in charge of the History Department; * before Vaksman was expelled, he had become “persona non grata;” * he (Egan) was never officially notified of the reason for Vaksman’s dismissal; * the History Department was “very public relations oriented,” and Vaksman was considered “an embarrassment” because of his speaking out on a variety of causes and seeking to discover ways in which university money was being spent; *he never believed Vaksman was dismissed for academic reasons; * he was never provided a copy of Vaks-man’s dismissal letter; * the dismissal letter “didn’t make a whole lot of sense;” *he was “taken aback” at the statement that Vaksman was “unteachable;” * Vaksman embarrassed the University when he spoke out against the “morass our athletic department is,” and its “substantial deficit” that resulted in “many, many dollars having been pumped into it that presumably could have been put in other university programs;” * Vaksman’s criticisms did not “sit well” with the History Department; * Vaksman caused a legislative investigation into improper spending in the History Department, which “rankled people, [and] caused feathers to fly;” * he never received any notice whatsoever that Vaksman was being considered for dismissal; * the graduate committee’s conduct was “rude and unprofessional;” * he was not concerned about the time Vaksman was taking to write his dissertation because many other students took “extraordinary periods” of time on dissertations; * one student was allowed to work on a dissertation for 14 years and another for 12 years; * there was a “major change in the department of history in the early 1980s, and a whole new mentality” was promoted by Professor Martin, whose goal was to have a “high-profile department” that would “look good in the eyes of upper echelon administration;” * Professor Martin “talked of showcasing our wares,” and Vaksman’s criticism was destructive to Professor Martin’s goals; * John Ettling was “upset” when Vaksman went to a professional meeting of historians in Houston and talked to the president of this large group; * Vaksman learned that the wife of University of Houston President Van Horn had prepared a manuscript for her doctoral dissertation that was “in very poor shape,” and President Van Horn used public funds to hire an editorial assistant from the History Department to revise his wife’s manuscript; * the History Department was embarrassed by this, because the manuscript had been presented for publication by the previously mentioned Professor Martin; *he was “upset” by this expenditure of public funds and regarded it as “unethical,” but the History Department went along with it anyway; and * the department appeals procedure available to Vaksman was a process Egan “never took seriously” because it was “a part of the bureaucracy” and “people would not be appointed to it who would simply look at things objectively.” Vaksman also testified. He stated that: * before he was dismissed, no faculty member ever told him that his progress was unsatisfactory; * during the two and one-half years he pursued his dissertation, he read widely in the relevant literature under the direction of his advisor, Professor Egan, and wrote a book, Ideological Struggle, which was published by an academic press after it passed the process of peer review; * he gave papers at historical conventions in San Francisco, at Texas A & M, and elsewhere; * he did much more work in the area of presenting convention papers than other graduate students; * one of his convention papers was commended by the president of a history society who wrote a letter to University of Houston Chancellor (later President) Van Horn, describing Vaksman’s paper as “outstanding;” *his book, Ideological Struggle, was assigned as reading in a course at the University of Houston; *more than 100 university research libraries bought his book; * he was invited to speak to classes of four different University of Houston professors, in the fields of history, geography, English, and sociology; * Professor Egan told him that the history faculty was “terrified” of a Texas senator’s probe of its spending practices, a probe that had been generated by Vaksman’s criticism. The trial judge could have believed all of the testimony recited above, and, in addition, could have made all reasonable inferences from it. AATCO Transmission Co. v. Hollins, 682 S.W.2d 682, 685 (Tex.App.—Houston [1st Dist.] 1984, no writ). There was no testimony to the contrary; as noted, the appellants relied solely on documentary evidence and presented no witnesses. When litigants fail to testify without explanation, a trier of fact may infer that they did not testify because they knew their testimony would hurt them and would help the other side. Carrillo v. State, 566 S.W.2d 902, 912 (Tex.Crim.App.1978); Winkle v. State, 506 S.W.2d 891, 897 (Tex.Crim.App.1974) (State may argue that defendant did not call a codefendant to testify because the testimony would have been harmful); Texas Power & Light Co v. Walker, 559 S.W.2d 408, 406 (Tex.Civ.App.—Texarkana 1977, no writ); Lindsey v. State, 194 S.W.2d 413, 417-18 (Tex.Civ.App.—Eastland 1946, writ ref'd n.r.e.). The dissenting opinion documents the evidence of Vaksman’s academic deficiencies, but the trial judge did not have to believe that these deficiencies, rather than personal animosity, motivated the dismissal. Based on the testimony of Professors Egan, Coffman, and Rothman, and that of Vaksman himself, the trial judge could have concluded that the appellants considered Vaksman to be an obnoxious, embarrassing, politically incorrect pest, and expelled him for those reasons — reasons of “bad faith or ill will unrelated to performance.” Ikpeazu, 775 F.2d at 253. The evidence of bad motive is mainly circumstantial, but that is usually the case. That is why the law allows motive, or any ultimate fact, to be proved by circumstantial evidence. State v. $11,014-00, 820 S.W.2d 783, 785 (Tex.1991); Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 695 (Tex.App.—El Paso 1991, no writ); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.—El Paso 1989, writ denied); see Clements, 835 F.2d at 1005 (summary judgment in academic dismissal case is unwarranted where state of mind is the critical issue and “solid circumstantial evidence exits to prove plaintiffs case”); accord Wakefield v. Northern Telecom, Inc., 813 F.2d 535, 541 (2d Cir.1987). The trial judge’s determinations that the appellants “intentionally harm[ed] [Vaksman] solely because of personal disagreements or grievances wholly apart from academic considerations,” that Vaksman was dismissed because of “matters of personality and speech,” that his dismissal was “well beyond the limits” proscribed for “learned professionals,” and that his dismissal “was in and of itself outrageous and extreme,” are supported by ample evidence. Thus, Vaksman demonstrated an “actionable deprivation” of due process in this case of a purported academic dismissal. Ikpeazu, 775 F.2d at 253. We overrule point of error one and that portion of point of error eight that challenges the sufficiency of the evidence supporting the trial court’s finding that the appellants violated Vaksman’s right to due process of law under the United States Constitution and the Texas Constitution. Points of Error II and VIII: Freedom of Speech In points of error two and eight, the appellants argue that there was no evidence or insufficient evidence to support the trial court’s finding that they violated Vaksman’s right to freedom of speech under the Texas and United States Constitutions. Article I, section 8 of the Texas Constitution provides: Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. Tex. Const, art. I, § 8. The First Amendment to the United States Constitution provides: Congress shall make no law ... abridging the freedom of speech[.] U.S. Const, amend. I. Both constitutions provide grounds for imposing civil liability for the violation of a person’s right to freedom of speech. Jones v. Memorial Hosp. Sys., 746 S.W.2d 891, 893-94 (Tex.App.—Houston [1st Dist.] 1988, no writ) (Jones II). 1. The Standard of Review Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon special issues. Daca, Inc. v. Commonwealth Land Title Ins. Co., 822 S.W.2d 360, 362 (Tex.App.—Houston [1st Dist.] 1992, writ denied). Findings of fact are not conclusive, however, where (as here) a complete statement of facts appears in the record. Id. In deciding a no evidence point, we consider only the evidence and the infer-enees therefrom that tend to support the finding, and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex.App.—Houston [1st Dist.] 1988, no writ). If there is more than a scintilla of evidence to support the finding, we must overrule the “no evidence” point. Joseph, 749 S.W.2d at 923. In reviewing a factual insufficiency point, we examine all of the evidence, both that which supports the finding and that which contradicts the finding. Id. We may set aside the finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong or manifestly unjust. Id. ‘We may not substitute our opinion for that of the trier of fact merely because we might have reached a different fact conclusion.” Id. 2. Vaksman’s Burden of Proof The Texas Constitution provides greater rights of free expression than its federal counterpart. Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992). Thus, if the proof shows a denial of free speech under federal law, then, a fortiori, Vaksman has proved a violation under state constitutional law. If Vaksman met the federal standard set out in Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), his proof is also sufficient to show a violation of Article I, section 8 of the Texas Constitution. Under the Mt. Healthy test, Vaksman’s burden was to prove that (1) his conduct was protected, and (2) his conduct was a “motivating factor” in the graduate committee’s decision to dismiss him. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Jones v. Memorial Hosp. Sys., 677 S.W.2d 221, 224-25 (Tex.App.—Houston [1st Dist.] 1984, no writ) (Iones I). Was Vaksman’s speech constitutionally protected? To be protected by the First Amendment, speech must address a matter of public concern. Connick v. Meyers, 461 U.S. 138, 146, 149, 103 S.Ct. 1684, 1690, 1691, 75 L.Ed.2d 708 (1983); Jones I, 677 S.W.2d at 224. Speech that is “solely in the individual interest of the speaker and its ... audience” is not speech on a matter of public concern. Dun & Bradstreet, Inc, v. Greenmoss Builders, Inc., 472 U.S. 749, 762, 105 S.Ct. 2939, 2947, 86 L.Ed.2d 593 (1985). Whether speech addresses a matter of public concern is determined by the content, form, and context of the speech. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690; Jones I, 677 S.W.2d at 224. Here, Vaksman’s speech addressed and criticized, among other subjects, (1) the apartheid-inspired United States sanctions against South Africa; (2) the political oppression committed by the government of the Soviet Union; (3) the expenditure of funds by the University of Houston, a state university, on athletics rather than academics; (4) the alleged improper use of public funds by the University, criticism that generated a legislative inquiry into the alleged misuse; and (5) the failure of the University to hire more minority faculty members. Vaksman’s criticisms were conveyed to the public. He aired his views in the media. He wrote articles in newspapers, wrote letters to the editor that appeared in newspapers, appeared on radio talk shows, gave lectures, and spoke at seminars. Where the speaker does not “seek to bring to light actual or potential wrongdoing or breach of public trust,” this weighs against a finding that the speech was of public concern. Connick, 461 U.S. at 148, 103 S.Ct. at 1691. Here, Vaks-man’s speech was presented to the public. When speech reflects only an individual’s dissatisfaction and an attempt to turn that dissatisfaction into a cause celebre, the speech is not of public concern. Connick, 461 U.S. at 148-49, 103 S.Ct. at 1691. Vaks-man’s speech, however, did not attempt to elevate a personal peeve into a cause; his speech addressed matters that were already genuine public causes. We hold, under both constitutions, that Vaksman’s speech was constitutionally protected. Vaksman met the first part of the burden articulated in Mt. Healthy. Was Vaksman’s speech a substantial factor in his dismissal? Professor Coffman testified that Vaksman’s articles on the strategic importance of South Africa “got him in trouble” with the “politically correct faculty in the History Department very seriously because that’s almost an undiseussable subject, and he discussed it.” Professor Egan stated that the History Department was “very public relations oriented,” and Vaksman was considered “an embarrassment” because of his speaking out on issues and attempting to discover ways in which University money was being spent. He asserted that Vaksman embarrassed the University when he spoke out against the “morass our athletic department is,” and its “substantial deficit” that resulted in “many, many dollars having been pumped into it that presumably could have been put in other university programs.” Professor Egan further testified that Vaks-man’s criticisms did not “sit well” with the History Department. In fact, one defendant, a member of the graduate committee, wrote that she was voting to dismiss Vaksman in part because of his “public statements slanderous (and untrue) about the department of history[.]” Professor Egan noted that the legislative investigation Vaksman sparked “rankled people, [and] caused feathers to fly.” Vaksman stated that Professor Egan told him that the probe “terrified” the history faculty. See footnote 2, above. The trial court could have concluded from this evidence that Vaksman’s speech was a substantial factor in the graduate committee’s decision to dismiss him. Vaksman met the second part of his Mt. Healthy burden. We overrule point of error two and that part of point of error eight that challenges the sufficiency of the evidence to support the trial court’s finding that the appellants violated Vaksman’s right to freedom of speech under the United States Constitution. Points of Error III and IV: Governmental Immunity In point of error three, the appellants argue that the trial court erred in awarding damages for Vaksman’s breach of contract claim because contract claims against the State are barred by the doctrine of governmental immunity. In point of error four, they contend that the trial court erred in awarding damages against them in their official capacities, because, as State officials and employees, they are entitled to share in the State’s governmental immunity. In University of Texas v. Babb, 646 S.W.2d 502 (Tex.App.-Houston [1st Dist.] 1982, no writ), we held that a school’s catalog constitutes a written contract between the educational institution and the student where the student entered the institution under the catalog’s terms. Id. at 506. Vaksman and the University of Houston therefore had a contract under the University’s 1982 catalog, and the trial court so found in its conclusions of law. The University of Houston is a state institution. Tex.Eduo.Code Ann. § 111.02 (Vernon 1991). Therefore, Vaksman’s contract was with the State. See Courtney v. University of Texas Sys., 806 S.W.2d 277, 281 (Tex.App.—Fort Worth 1991, writ denied) (contract with University of Texas System, a state institution, was a contract with the State). Although Vaksman did not name the State as a defendant, his suit was against the State. When, as here, State employees are sued in their official capacities for acts they performed within the scope of their authority, the suit is against the State. Director of Dep’t of Agriculture & Environment v. Printing Indus. Ass’n, 600 S.W.2d 264, 266, 270 (Tex.1980); Short v. W.T. Carter & Brother, 133 Tex. 202, 126 S.W.2d 953, 962 (1938). The State, including state universities, generally enjoys sovereign immunity from suit. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). One court has held that “the sovereign immunity doctrine does not apply to contracts made by the State, or any of its agencies under our Constitutionf.]” Industrial Constr. Management v. DeSoto Indep. Sch. Dist., 785 S.W.2d 160, 163 (Tex.App.—Dallas 1989, no writ); see dlso Palacios Seafood, Inc. v. Piling, Inc., 888 F.2d 1509, 1512 n. 9 (5th Cir.1989) (construing Texas law) (“If the state enters into a contract, it consents, like any citizen, to be sued if it breaches the agreement.”). The statement in DeSoto was dicta because the court conceded that a statute authorized suits against that particular school board. 785 S.W.2d at 163. The DeSoto opinion has been criticized and not followed. Pickell v. Brooks, 846 S.W.2d 421, 424-26 (Tex.App.—Austin 1992, no writ); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592-93 (Tex.App.—Austin 1991, writ denied); Courtney, 806 S.W.2d at 284. We disagree with the quoted statements in DeSoto and Palacios Seafood, and we decline to hold, as those courts did, that the State automatically consents to be sued every time it enters a contract. The State waives its immunity from liability when it contracts. Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998, 999 (1898). However, the State retains its immunity from suit, a distinction repeatedly recognized by the Supreme Court of Texas. W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 842 (1958); State v. Elliott, 212 S.W. 695, 698-701 (Tex.Civ.App.—Galveston 1919, writ ref'd). The State may consent to suit by enacting a statute that waives immunity or by passing a legislative resolution. Once it does so, it is liable under contract law the same as anyone else. Here, the State never consented to be sued. We have found no authority allowing recovery of money damages against the State without its consent in a “pure” contract ease. Courtney, 806 S.W.2d at 281-82. Thus, this damage award cannot be upheld based on breach of contract, because Vaksman had no consent to sue the State for breach of contract. Nevertheless, courts have allowed expelled students and fired teachers to sue state universities without consent for constitutional violations and to seek injunctions and reinstatement. Courtney, 806 S.W.2d at 284-87; Bagg v. University of Texas Medical Branch, 726 S.W.2d 582, 586-87 (Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.) (allowing an employee to sue university officials in their individual capacities for money damages, but holding the officials to be immune in their official capacities). Such plaintiffs have also been allowed to sue school officials in their individual capacities for money damages. Perry v. Texas A & I Univ., 787 S.W.2d 106, 109-10 (Tex.App.—Corpus Christi 1987, writ ref'd n.r.e.) (allowing suit against state university officials for money damages based on alleged bad faith violations of constitutional rights). These eases show that consent is needed to sue the State when the suit is solely for money damages for breach of contract. See Texas Technological College v. Fry, 278 S.W.2d 480, 481 (Tex.Civ.App.—Amarillo 1954, no writ); Walsh v. University of Texas, 169 S.W.2d 993, 994 (Tex.Civ.App.—El Paso 1942, writ ref'd). However, consent is not needed when, as here, the breach of contract (or other government action) constitutes a state constitutional violation and the plaintiff seeks a remedy other than money damages. See eases cited at footnote 5; Courtney, 806 5.W.2d at 283-85 (professor’s suit “does not rest on contractual grounds alone, for we must consider the claimed divestment of Courtney’s property right in his job”); Jones II, 746 S.W.2d at 893-94 (recognizing article 1, section 8 of the Texas Constitution as “an independent legal basis for a cause of action” and citing out-of-state authorities allowing relief, including money damages, for violations of state constitutional rights); Jones I, 677 S.W.2d at 225-26 (action based solely on article 1, section 8 of Texas Constitution may be brought for reinstatement, declaratory judgment, and “related relief’). This Court recognized a “constitutional tort,” denial of free speech, in Jones II, but we did not state that money damages could be recovered. 746 S.W.2d at 893-94. We cited with approval one case, Mt. Healthy, allowing money damages for the federal constitutional torts of denial of free speech and due process, as well as a commentator advocating such relief and citing several states allowing it. But even when a suit is brought in state court for federal constitutional torts, “the states retain the power to determine whether a plaintiff may sue a state in state court on claims arising out of that tort.” Bagg, 726 S.W.2d at 586. Vaksman cites no authority upholding such a money judgment against state officials in their official capacities. We conclude that consent is required to bring suit for a money judgment that would be paid from the state treasury. W.D. Haden Co., 308 S.W.2d at 840-41; Lopez v. Public Util. Comm’n, 816 S.W.2d 776, 781 (Tex.App.—Austin 1991, writ denied); Commissioner, Texas Dep’t of Human Serv. v. Trinity Coalition, 759 S.W.2d 762, 764 (Tex.App.—El Paso 1988, writ dism’d), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990). There being none here, the money judgment against the appellants in their official capacities must be set aside. That leaves the question of remedy. An injunction ordering reinstatement is a proper remedy. See cases cited at footnote 5; Jones I, 677 S.W.2d at 225. So is an award of money damages against defendants held liable in their individual capacities, i.e., Professors Jones and Ettling. Perry, 737 S.W.2d at 109-10; Bagg, 726 S.W.2d at 586-87. The appellants held liable in their official capacities are immune in that capacity from the remedy of money damages. Bagg, 726 S.W.2d at 586. We sustain points of error three and four and hold that all the appellants are immune from an award of money damages assessed against them in their official capacities, and are also immune from a judgment based on breach of contract. That award is set aside. Point of Error V: Quasi-judicial Immunity In point of error five, the appellants assert that the trial judge erred in ordering that Vaksman recover $10,000 of the $32,500 damages award from Professors Jones and Et-tling in their individual capacities. They claim that Jones and Ettling are protected by the doctrine of quasi-judicial immunity. Quasi-judicial immunity protects public officials when they (1) act within the course and scope of their office, (2) perform discretionary functions, and (3) act in good faith. Perry, 737 S.W.2d at 110; Anderson v. Higdon, 695 S.W.2d 320, 324 (Tex.App.—Waco 1985, writ ref'd n.r.e.). Quasi-judicial immunity is an affirmative defense. Perry, 737 S.W.2d at 110; Austin v. Hale, 711 S.W.2d 64, 66 (Tex.App.—Waco 1986, no writ). Therefore, the official must plead and prove all of its elements. Perry, 737 S.W.2d at 110. We have already discussed the evidence supporting the trial judge’s findings of bad faith. Professors Jones and Ettling did not conclusively prove that, as a matter of law, they acted in good faith. Thus, they are not immune from the $10,000 damage award. We overrule point of error five. Point of Error VI and Cross-point I: Attorney’s Fees In point of error six, the appellants contend that no constitutional, statutory, or contractual provision allows a recovery of attorney’s fees in this case. In his sole cross-point of error, Vaksman contends that the trial judge abused his discretion because the award of $90,000 was too low. Vaksman’s sole authority for the recovery of attorney’s fees is Tex.Civ.PRAC. & ReM. Code Ann. §§ 104.001-.002 (Vernon 1986). We agree with Vaksman that the pre-1987 version of the statute applies. The 1987 version applies “only to a cause of action that accrues on or after the effective date of this act,” which was in 1987. Act of August 3, 1987, 70th Leg., 2d C.S., ch. 29, 1987 Tex. Gen.Laws 107. Vaksman’s cause of action accrued in 1986. Even under the pre-1987 provision, however, Vaksman cannot recover attorney’s fees. The pre-1987 version of the statute provides: § 104.001. State Liability; Persons Covered In a cause of action based on conduct described in Section 104.002, the state is liable for ... attorney’s fees adjudged against: (1) an employee, a member of the governing board, or any other officer of a state agency, institution, or department[.] § 104.002. State Liability; Conduct Covered The state is liable under this chapter only if the damages are based on the act or omission by the person in the course and scope of the person’s office, employment, or contractual performance for or service on behalf of the agency, institution, or department and if: (2) the damages arise out of a cause of action for deprivation of a right, privilege, or immunity secured by the constitution or laws of this state or the United States, except when the court in its judgment or the jury in its verdict finds that the person acted in bad faith. Tex.Civ.PraC. & Rem.Code Ann. §§ 104.001-.002 (emphasis added). The trial judge’s findings, quoted above and fully set out in the appendix, are findings of bad faith, Thus, the State is not liable under section 104.002. Several cases have allowed attorney’s fees under section 104.002, but in those cases there was no finding of bad faith. See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 398 (Tex.1989); Texas State Employees Union v. Texas Dep’t of Mental Health, 746 S.W.2d 203, 207 (Tex.1987); see also Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151-52 (Tex.1988) (allowing attorney’s fees for racial discrimination under Tex.Civ.Prac. & Rem.Code ANN. §§ 106.001-.002, which has no exception for bad faith). We conclude that all the appellants who we have held immune from money damages are for the same reasons immune from an award of attorney’s fees. Neither can the award of attorney’s fees be enforced against Professors Jones or Ettling. The judgment did not award attorney’s fees against Jones and Et-tling in their individual capacities, but only in their official capacities. Their personal liability was limited to $10,000, which was “inclusive of the above damages found against the various defendants in their official capacity.” The “above damages” included the award of attorney’s fees. Moreover, attorney’s fees are not available as damages for the tort of intentional infliction of emotional distress. See Gannett Outdoor Co. v. Kubeczka, 710 S.W.2d 79, 90 (Tex.App.—Houston [14th Dist.] 1986, no writ) (attorney’s fees are not recoverable in any tort action unless authorized by statute; no statute authorizes recovery of attorney’s fees for the tort of intentional infliction of emotional distress). We sustain point of error six. Because of our holding, we necessarily overrule Vaksman’s cross-point contending that the award was too low. Point of Error VII: Vaksman’s Pleadings Regarding the First and Fourteenth Amendments In point of error seven, the appellants argue that the trial judge erred in finding that they violated Vaksman’s First and Fourteenth Amendment rights because Vaksman requested no such relief in his pleadings. We overrule this point for several reasons. First, the appellants’ brief does not cite any place in the record where this complaint was preserved for review. Thus, it has been waived on appeal. Tex.R.App.P. 74(d), (f); Henry S. Miller Management Co. v. Houston State Assocs., 792 S.W.2d 128, 131 (Tex.App.—Houston [1st Dist.] 1990, writ denied). Second, absent a trial court objection, we presume the issue was tried by consent. Tex.R.Civ.P. 67. Finally, Vaksman’s original petition specifically mentioned the First and the Fourteenth Amendments. Absent special exceptions, we will liberally construe the petition in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809-10 (Tex.1982). We overrule point of error seven. Conclusion We affirm those portions of the judgment that (1) award Vaksman $10,000 from Jones and Ettling in their individual capacities, and (2) order Vaksman reinstated to the doctoral program. We reverse that portion of the judgment that awards Vaksman damages from the rest of the appellants and render judgment that Vaksman take nothing from them. We reverse that portion of the judgment that awards Vaksman attorney’s fees and render judgment that Vaksman recover no attorney’s fees. MIRABAL, J., not participating. HUTSON-DUNN, J., dissents in part and concurs in part. APPENDIX No. 88-50122 Fabian Vaksman vs. The Members of the Board of Regents of the University of Houston, et al. In the District Court of Harris County, Texas 125th Judicial District FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court makes the following findings of fact and conclusions of law in the above case: Findings of Fact 1. Plaintiff, Fabian Vaksman, immigrated to the United States from Russia in 1973. 2. Mr. Vaksman completed all required course work and was awarded a master’s degree in history by New York University. 3. Mr. Vaksman applied to and was accepted into the Ph.D. program in history at the University of Houston for the school year beginning in September 1982. 4. Mr. Vaksman successfully completed in 1984 all requirements for the doctor of philosophy degree, including course work, teaching assignments and an oral comprehensive examination. Defendants’ Exhibit (Def.Ex.) 19. Mr. Vaksman was notified by letter of his successful completion of these requirements and was told that University policy provided him with five years to complete his dissertation. See Plaintiffs Exhibit (Pl.Ex.) 13. 5. By virtue of completing the course work, teaching, and oral examination requirements, plaintiff achieved the status of “all but dissertation,” (hereinafter “ABD”), on May 31,1984. The University certified this status in its official records as found in Mr. Vaks-man’s “Candidacy Notification for the Doctoral Degree.” Defendant’s Exhibit 27. Professor Clifford L. Egan of the History Department was designated plaintiffs dissertation advisor. Def.Ex. 27. 6. Mr. Vaksman was notified by letter on October 29,1986, that he was dismissed from the Ph.D. program at the University of Houston. Pl.Ex. 33. 7. Plaintiff called as witness at trial three University of Houston professors, Dr. Egan, Dr. Irving Rothman and Dr. John Coffman. Each testified that the letter of dismissal was improper, contained statements that were untrue and was not based on academic grounds. 8. Documentary evidence characterized Mr. Vaksman as an “intelligent,” “enthusiastic,” student who has a “reasonably well developed writing ability” and “shows a degree of promise” and “can improve and become one of our better students.” Def.Exs. 4, 5, and 8. Other evaluations were less favorable, and some strongly critical. 9. Dr. Rothman, professor of English at the University of Houston, testified that Mr. Vaksman worked with him to improve his writing skills. 10. Russian is Mr. Vaksman’s native tongue. English is a second language for him. Mr. Vaksman also has a working knowledge of Hebrew, French, Spanish and German. 11. Mr. Vaksman is an outspoken social critic who actively engaged in expressing his opinions on a wide range of topics in a variety of media, including newspaper articles, letters to the editors, radio talk shows, lectures and seminars. 12. Mr. Vaksman was particularly outspoken in his criticism of the Soviet government. 13. Mr. Vaksman criticized what he considered wrong or wasteful expenditure of public funds by the University, in particular, the athletic department. He complained that the University improperly funded students who had full-time jobs and a student who was assisting the wife of the Chancellor to edit her dissertation thesis. 14. Mr. Vaksman caused a legislative inquiry to be made by the office of State Senator James “Buster” Brown into the allocation of funds by the University of Houston and specifically the History Department. Def.Exs. 58, 59. Professor Egan testified that the University administrators and History Department faculty were fearful of the information that the legislative inquiry might uncover. 15. Mr. Vaksman criticized United States sanctions on South Africa and argued in the student newspaper that sanctions should be ended because of the strategic importance of South Africa and that the choice is “Apartheid or the KGB.” Pl.Ex. 31. 16. Mr. Vaksman contended that funds spent by the University of Houston Athletic Department could be better spent on academic pursuits. 17. Mr. Vaksman was critical of the failure of the University of Houston to maintain a separate graduate faculty, arguing that a merged faculty decreased the quality of the education provided by the University to its students. 18. Mr. Vaksman was openly critical of violations of the anti-smoking policy of the University of Houston by members of the History Department. 19. Mr. Vaksman was critical of the lack of minority representation in the faculty of the University of Houston. 20. Mr. Vaksman wrote and published a book, “Ideological Struggle,” dealing with Soviet internal policies which in some respects accurately presaged subsequent events in that country. The book was criticized by History Department faculty, including those within the graduate committee which expelled Mr. Vaksman. 21. The testimony of all the witnesses at trial was that Mr. Vaksman was notorious on campus for his views and that many of the views were considered embarrassing or damaging to some History Department faculty and members of the University administration. 22. The expulsion letter given to Mr. Vaksman specifically referred to his political views as “polemic” and “unteachable,” and at least one member of the committee which expelled Mr. Vaksman admitted voting to oust him in part because of his statements regarding the History Department. 23. Mr. Vaksman entered and completed his first semester of enrollment in 1982. 24. By the provisions of the University of Houston Bulletin in effect at the time, “A student normally is entitled to graduate under the degree provisions of the UH Bulletin in effect at the time of the first completed semester of enrollment.” Def.Ex. 90. The Bulletin provides for exceptions to this rule. None of the exceptions applies to Mr. Vaks-man. 25. The University of Houston Bulletin states that “The doctoral student who fails to complete the dissertation within five years after completion of the comprehensive examination must retake the examination.” Def. Ex. 90. This language is also contained in the regulations of the History Department. Pl.Ex. 5. 26. Mr. Vaksman after completing all requirements for entering the ABD stage was theoretically entitled to a minimum of five years to complete his dissertation based upon the University of Houston Bulletin, the specific notice that he received, the mutual understandings that he had formed in conversations with Hannah Decker, the graduate director for the Department of History, and the established practice of the University of Houston. 27. Professors Egan and Rothman testified that students were given a minimum of five years to complete their dissertation and that some students took 12 years or more. 28. It was reasonable for Mr. Vaksman to expect that two years after the certification of his candidacy he had three years left in which to complete his dissertation. 29. The dismissal letter labeled Mr. Vaks-man as a polemicist, cast doubt upon his ability to do research in an objective manner, stated that he could not teach and was unteachable and accused him of unprofessional conduct. See Pl.Ex. 33. 30. In order to continue to pursue his academic vocation in history, plaintiff would have to make application to other doctoral programs or apply for academic employment as an ABD. In either case, he would have had to explain the circumstances of his expulsion from the University of Houston doctoral program or run the risk of assumption being made that he was expelled for some gross misconduct. 31. In either event, the declarations intentionally made, adopted and ratified by the defendants would have the effect of precluding Mr. Vaksman from pursuing his academic vocation, and they have had that effect. 32. Matters of personality and speech are not of an academic nature and are not subject to the generous consideration which might be given under other circumstances to purely academic judgments by members of a university community. 33. Mr. Vaksman was not given any prior notice of his expulsion, nor the opportunity to respond to any concerns of the graduate committee prior to action being taken to expel him. 34. Mr. Vaksman was given an opportunity to appeal, but was not given any specific notice, and the burden was placed upon him in the appeals proceedings to prove that the action of the graduate committee was improper. 35. Mr. Vaksman was not informed of allegations of psychological instability and accusations that he was a threat to the physical safety of faculty members, charges that were placed in Mr. Vaksman’s student record before he was expelled. Pl.Ex. 41. 36. Defendants utilized their positions of power over Mr. Vaksman as a student to intentionally harm him solely because of personal disagreements or grievances wholly apart from academic considerations. 37. Defendants were in a position to be particularly aware of the impa